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77 of 82 people found the following review helpful
5.0 out of 5 stars Another Sterling Performance from Prof. Amar
I just received this book - two weeks before it is officially released. I'm not entirely sure how that is possible, but congratulations to Amazon for its efficiency.

As a Yale Law student, the temptation to buy this book was overwhelming. And it hasn't disappointed: as one would expect from Akhil Amar, the writing is lucid; the arguments are powerful (even when...
Published on September 1, 2012 by Fakey McFakename

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4 of 9 people found the following review helpful
3.0 out of 5 stars Stop the Debate
I also have purchased the book but not read completely. "Learning New Ways" (LNW) has provided an very good review and made a number of key points whether M. Shaffer and Steven Mason agree or not. I think further discussion is not worthy of putting into Amazon discussion. My own opinion on some things. There may be some record of the discussions that took...
Published 18 months ago by dbryan


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77 of 82 people found the following review helpful
5.0 out of 5 stars Another Sterling Performance from Prof. Amar, September 1, 2012
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This review is from: America's Unwritten Constitution: The Precedents and Principles We Live By (Hardcover)
I just received this book - two weeks before it is officially released. I'm not entirely sure how that is possible, but congratulations to Amazon for its efficiency.

As a Yale Law student, the temptation to buy this book was overwhelming. And it hasn't disappointed: as one would expect from Akhil Amar, the writing is lucid; the arguments are powerful (even when one might not entirely agree with them); and the level of scholarly detail astounding. I have no doubt that this book will take its place in the canon of Constitutional scholarship, and every law student, attorney, and judge should put this at the top of their reading list.

Amar is known for holding a few positions outside the mainstream, and this book is no exception. Like in America's Constitution: A Biography, readers will occasionally find, particularly near the end of a chapter, some claims that may lead them to raise an eyebrow. But even these deserve a careful read, and from time to time, the reader will be convinced. Even when they are not, hearing Amar's intelligent arguments will remind them of the necessity of not blindly following the mainstream and making one's mind up for oneself, based on all the evidence and logic.

Some arguments in this book are of enormous importance. Amar's call to remember the Common Law and revolutionary experience that colors the words used in the concise text of the Constitution serves as an important reminder to modern judges to avoid the temptation to construe language in a vacuum; like all forms of communication, it is vital to recall that the meaning of language is a product of social and historical context. Similarly, Amar's reminders that, even when a broad principle is enumerated in the Constitutional text, advances in understanding may lead it to be applied differently to how the Drafters may have expected resemble the 'New Textualist' and 'Living Originalist' (see: Living Originalism) schools that have done so much to ground rights 'discovered' recently in sound constitutional theory.

Nonetheless, one cannot accept what Amar says uncritically. Unless I have missed it, he fails to address recent revisionist arguments against the traditional identification of the early 20th Century as 'the Lochner era' (see, e.g., Rehabilitating Lochner: Defending Individual Rights against Progressive Reform). Whatever one thinks about whether these arguments have merit, they deserve a response. While Amar properly criticizes the majority opinion in Roe v. Wade for its singular unwillingness to explain how it found a right to abortion that contradicted the laws of every State, his proposed alternative basis - that these laws that specially affected women were invariably first enacted by all-male legislatures - is almost perverse in its tendency to ignore the fact that such laws are generally created not out of any evil desire to subjugate women (even if some - presumably including Amar - might say that was their effect), but out of a sincere belief that a child's life is terminated. Nor, as far as I can tell, does Amar discuss whether Roe could survive if a legislature in which women were properly represented decided to limit access to abortion. Again - whatever one thinks of abortion and Roe, Amar's argument has notable omissions.

Despite these caveats, and the disagreements many (if not most) readers will have with some of Amar's positions (inevitable for a book that comments on so many controversial legal and political issues), this book clearly deserves five stars. Overall, it is an excellent work of scholarship - and like all such works, it should not be read uncritically. But disagreeing with an argument in the book is part of the fun of reading it.
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19 of 19 people found the following review helpful
5.0 out of 5 stars Insights on Every Page, January 5, 2013
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Like another reviewer here, I bought this Kindle book on the strength of Akhil Reed Amar's other book, "America's Constitution: A Biography." Er, no problem with the use of "America" in either of these titles. These two books really should be read sequentially, starting with Biography. In Biography, Reed goes word for word through the "terse text." In Unwritten, he shows how the various Constitutions -- implicit, lived, symbolic, etc. -- flesh out and strengthen the words of the document itself.

While reading this book I was mulling the thought of subtracting a star due to a tendency of the author to get a little too far down in the weeds. And then I came to Chapter 6, "Honoring the Icons: America's Symbolic Constitution." This chapter examines six texts -- no spoilers here but at least one of them will surprise you -- that illustrate not just the Constitution but what it means to be an American. Another part of this chapter -- on the three Supreme Court cases that deserve to be in the SCOTUS Hall of Shame (my words, not his) is similarly insightful. This chapter is worth being issued as a Kindle-single edition.

Akhil Reed Amar's writing throughout is lawyerly but elegant (check out the Look Inside feature to confirm). The book is written for a layperson, not a lawyer, with ample, clear definitions of important terms. Yes, Amar should be on the Supreme Court. Maybe he's been asked, but why would he give up a tenured gig at Yale to come down to Washington, even if a seat on the Supreme Court is tenured as well?

Buy both of these books and read them carefully. You will emerge with a greater understanding of the document and our society. And speaking of Biography, I've given my hard-copy version to a friend and replacing it with the Kindle version. Both books deserve re-reading.
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13 of 18 people found the following review helpful
4.0 out of 5 stars Amazing Book, September 18, 2012
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Appellate Advocate "rsr18f" (Columbia, MO United States) - See all my reviews
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This is a great book; however, the footnotes aren't numbered, at least in the copy I got for my Kindle Fire. Hope this can be fixed soon. It is quite annoying to click on a note, only to be taken to a page of dense text without any way to tell where one note ends, and another begins.
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4 of 5 people found the following review helpful
4.0 out of 5 stars Starts well .... ends a bit political, April 3, 2013
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This review is from: America's Unwritten Constitution: The Precedents and Principles We Live By (Hardcover)
This book follows up Akil Amar's book "America's Constitution". Both may be read as one piece of work. The second does not reach the standards of the first, however, the first half of the second is its equal in every way and Mr Amar's ideas about the nature of the unwritten constitution are very thought provoking. I have learned much from both books. They are highly informative and well written for the interested lay reader. They provide a way of thinking about current social, civil and political issues that for the most part, enables the reader to escape into a non partisan time capsule, away from the current ideological sound bites and into a more principled analysis about our government's responsibilities to its citizens and the people's sovereignty.
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24 of 35 people found the following review helpful
4.0 out of 5 stars Bought on Strength of His Previous Book, America's Constitution: A Biography, September 13, 2012
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Scott Ott (McKinney, TX) - See all my reviews
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This review is from: America's Unwritten Constitution: The Precedents and Principles We Live By (Hardcover)
This came out just yesterday, and I had it delivered yesterday, because I have already read Amar's "America's Constitution: A Biography." I often disagreed with him in that one, but I cannot deny his vigilant scholarship, and devotion to presenting the facts. The premise of this new one is fascinating, and the first chapter focusing on the impeachment of Andrew Johnson gripped me like a thriller. I suppose not everyone gets so ginned up about the Constitution, but if you're such a freak, you might enjoy this.

BTW, I called Amar on the phone when I was working on my PJTV series, Freedom's Charter ([...] offering to interview him. He said that my audience wouldn't be interested in what he had to say, because, "Those Tea Partiers don't understand the Constitution, and I do."

Well, he's arrogant and uninformed about the Tea Party movement (although doubtless correct about some who mouth mantras without study or reflection), but he does know the Constitution. I never let personality quirks of the teacher get in the way of my learning. As my old pastor used to say, "Eat the meat, throw away the bones."
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3 of 4 people found the following review helpful
5.0 out of 5 stars Legal scholarship with an agenda, March 25, 2013
This review is from: America's Unwritten Constitution: The Precedents and Principles We Live By (Hardcover)
This is a book that devolves into an extensive study project. Amar doesn't ignore the written Constitution,saying that written and unwritten must be taken together like yin and yang. He promotes a holistic reading, including reading between the lines. He parlays a seemingly obvious premise into an extensive analysis of background and interpretation. It compares very favorably with other popular analyses of constitutional law. Although some space is wasted on the hypothetical, most paragraphs of this extensive book contain food for thought. Since each answer creates a question the investigation can never end. In some places Amar uses his legal and historical expertise as a lever for constitutional revision to support his own liberal agenda. The long book is organized somewhat strangely into the author's idea of methods making it difficult to gain perspective as a whole or to effectively summarize. Amar admits to hopping with abandon from one topic to another. The index must be used for a sense of organization.

Amar points to the need for unwritten interpretation because of the founder's tendency to be terse and brief. "Concision is constitutionally constitutive" threw me for a few moments before a pretty good explanation was forthcoming. Lack of over explanation in the written Constitution is considered beneficial to interpretation so that Shakespeare's "Brevity is the soul of wit" captures the idea better than Amar's sometimes florid prose.

He asks the question of what is the real Constitution? There's a fascinating analysis of the history of preserving the iconic parchment and differences among the printed and ratified versions. Contrary to more recent Supreme Court interpretation, Amar shows how John Marshall, in McCullough v. Maryland, viewed the "necessary and proper" clause as a statement of intent rather than conferring any powers on the federal government; Not an idea that modern expansionists would appreciate.

I don't agree with all of Amar's analysis. The contention that the First Amendment prohibits federal interference but not protection is not supported by history. Freedom of religion was not a fact in the colonies. Maryland, for one example, was a Catholic chartered colony. Official state religion was not changed by independence. The Constitution was not ratified to extend federal "protection" of rights within the states. Later, Amar makes the point that state sponsored religion was obsolete by the time of the Fourteenth Amendment.

It's right to say that the Articles of Confederation emphasized state's rights to a degree detrimental to a strong Union. However, the Constitution was created to strike a balance between the federal government and the states, never to eliminate state's rights in the direction we are going now.

Madison's original stance that the BofRs was unnecessary and should not have been written is cleverly verified by Amar with reference to unenumerated rights of the Ninth Amendment and to the 'privileges and immunities' clause of the Fourteenth. Interestingly, he critiques Supreme Court opinions, including Roe v. Wade, that have ignored the later.

In promoting the Fourteenth Amendment, Amar says, without particulars, that the old South didn't play by constitutional rules. Later he says that the South illegally tried secession.
He fails to mention that secession is not written into the Constitution, being prohibited now only by Lincoln's opinion and the precedent of war. In panning the Dred Scott decision, Amar points out that nowhere does the Constitution mention the word "white". Actually Taney's opinion doesn't use the word either, it's inserted by Amar. However much we deplore the Dred Scott decision supporting slavery, there was nothing in the decision that is in opposition to the Constitution as it stood in 1857. Slaves were not citizens before the civil war. Amar's contention of Southern constitutional misplay is ex-post facto by 150 years. He seems to think it's ok to pervert the Constitution in a good cause. That shows up later in the book in support of his liberal agenda, including admiration for Earl Warren.

Some of the most important jurisprudence of the last few decades has involved the incorporation doctrine, whereby the Fourteenth Amendment is interpreted to apply the BofR to the states. Amar explains that the SC has used due process to apply each of the BofRs to the states as well as the Fifth Amendment which was clearly intended. Amar says that it should have been done through the privileges and immunities clause. Interesting and logical, but can we really accept Amar's method over those of Harlan, Warren, Black and Blackmon?
He doesn't comment on Douglas's extension of rights with 'penumbras', something that is certainly significant unwritten law. It seems to me that the writers of the Fourteenth in duplicating the due process clause intended that and only that to be applied in favor of former slaves. Justification for extending the meaning is very vague. Expansion of federal power through the incorporation doctrine is a case of a little good and a lot of harm. Amar says that the first sentence of the Fourteenth clearly states that US born is cit of USA. No it doesn't. The anchor baby interpretation of the "jurisdiction" clause is peculiar. Jurisdiction can't reasonably be interpreted as over a foreign mother. However, in this case Amir has SC jurisprudence on his side.

There's an interesting evaluation of the Warren Court. Amar seems to approve results while finding arguments against the judicial reasoning, saying that Warren had no general philosophy. In five areas: segregation, incorporation, free speech, religious freedom,
voting rights, the Warren Court got the big picture right, albeit with no general philosophy and dubious legal reasoning. They blundered on criminal procedure. Mindless use of the exclusionary rule emphasizes protection of criminals on technicalities at the expense of public security. All in all it fails to justify Amar's listing of Warren with Marshall as the two greatest SC chiefs.

It would seem that Amar's high opinion of the Warren court, that overruled itself 45 times, is the result of circuitous reasoning. He says the Warren court got the big picture right, which seems to be suggesting that that the court did significant social engineering with bad law.

The history of substantive due process is well covered. In the excellent equality discussion, equal protection under law is not extended to Obama's dollar of dollar equality of outcome
A point that is ignored or at least minimized, that was incorporated in the current movie 'Lincoln', is the unwritten, but implied, inclusion of civil rights in the Thirteenth Amendment.

The last chapter contains projections for future suggested amendments, mostly towards popular election of the president and more federal control over state constitutions. There are also suggested legal embellishments of both judge and jury conscience. Amar wants judges to inform prospective jurors of their right to nullify, or not decide under an individual statute.
He doesn't say how a juror's obligation to state intent to nullify law will likely resulting in disqualification. He wants to further limit peremptory challenge of jurors.

In my opinion we need to mitigate the trend to tyranny of the majority. Many of Amar's suggestions tend towards destruction of the last vestiges of separation of powers and protections against federal power. His campaign to modify election practice doesn't include proportional representation that would allow minorities a possible balance in coalition government

One value of the book is that it caused me to reread and rethink the Constitution, especially the Fourteenth Amendment. I hope that our Supreme Court Justices have read this work. It would be very interesting to get their impressions. This a great scholarly investigation leaving much food for thought. Despite a somewhat obtuse organization it may be the best instructive constitutional interpretation available. Amar's obvious social agenda doesn't spoil it. Citing the need for more interpretation, the book ends with the question "Publius II where are you?" Amar has made a fine attempt.
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3 of 4 people found the following review helpful
5.0 out of 5 stars Why Unwritten Law Is So Important In America, February 5, 2013
This review is from: America's Unwritten Constitution: The Precedents and Principles We Live By (Hardcover)
Akhil Reed Amar, a professor of law at Yale Law School who is well known as a legal scholar and expert on constitutional law, impressed me when I read his scholarly treatise on the Bill of Rights but I am even more enamored after completing “America's Unwritten Constitution: The Precedents and Principles We Live By.” In this book Amar delves into and explains why there are so many legal constitutional precedents now set in stone that are not actually enumerated in the Constitution.

Containing only 8,000 words, the U.S. Constitution cannot possibly explicitly provide for every issue faced by our nation down through the years to this present day. Yet, argues Amar, America’s written constitution and unwritten Constitution fit snugly together to create this grand body of laws that guides our nation through its grand history. The author’s call to pay attention to common law and historical context is a solid reminder that legal opinions cannot be written in a vacuum. The author’s lawyerly but elegant style helps all readers understand how our Unwritten Constitution came to be and how important it is to all citizens.
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2 of 3 people found the following review helpful
5.0 out of 5 stars A fascinating book, December 12, 2012
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It was written by a man who should be on the U.S. Supreme Court. It provides guides to constitutional interpretation found nowhere else.
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5.0 out of 5 stars A Roadmap to the Unwritten Constitution, April 24, 2014
By 
Matthew Moss (Tallahassee, Florida USA) - See all my reviews
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Professor Amar guides the reader through a series of lenses through which to interpret and analyze issues relating to the United States Constitution that go beyond the text of the document. He contextualizes modern constitutional debates and highlights methods to use in examining issues debated pre-Founding, developments in the ages since, and a vision for constitutional work going forward. A must read for anyone looking to deeper understand the Constitution.
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5.0 out of 5 stars Fascinating Book!, April 2, 2014
By 
Gary Frimann (Gilroy, CA United States) - See all my reviews
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This review is from: America's Unwritten Constitution: The Precedents and Principles We Live By (Hardcover)
Professor Amar is knowledgeable about his subject matter and a joy to read. Great book. Recommended for anyone interested in either American History or the law from a Constitutional perspective.
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America's Unwritten Constitution: The Precedents and Principles We Live By
America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar (Hardcover - September 11, 2012)
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