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America's Unwritten Constitution: The Precedents and Principles We Live By
Despite its venerated place atop American law and politics, our written Constitution does not enumerate all of the rules and rights, principles and procedures that actually govern modern America. The document makes no explicit mention of cherished concepts like the separation of powers and the rule of law. On some issues, the plain meaning of the text misleads. For example, the text seems to say that the vice president presides over his own impeachment trial -- but surely this cannot be right. As esteemed legal scholar Akhil Reed Amar explains in America's Unwritten Constitution , the solution to many constitutional puzzles lies not solely within the written document, but beyond it -- in the vast trove of values, precedents, and practices that complement and complete the terse text.
In this sequel to America's A Biography , Amar takes readers on a tour of our nation's unwritten Constitution, showing how America's foundational document cannot be understood in textual isolation. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and Congresses; common practices of modern American citizens; venerable judicial decisions; and particularly privileged sources of inspiration and guidance, including the Federalist papers, William Blackstone's Commentaries on the Laws of England , the Northwest Ordinance of 1787, Lincoln's Gettysburg Address, and Martin Luther King, Jr.'s "I Have a Dream" speech. These diverse supplements are indispensible instruments for making sense of the written Constitution. When used correctly, these extra-textual aids support and enrich the written document without supplanting it.
An authoritative work by one of America's preeminent legal scholars, America's Unwritten Constitution presents a bold new vision of the American constitutional system, showing how the complementary relationship between the Constitution's written and unwritten components is one of America's greatest and most enduring strengths.
In this sequel to America's A Biography , Amar takes readers on a tour of our nation's unwritten Constitution, showing how America's foundational document cannot be understood in textual isolation. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and Congresses; common practices of modern American citizens; venerable judicial decisions; and particularly privileged sources of inspiration and guidance, including the Federalist papers, William Blackstone's Commentaries on the Laws of England , the Northwest Ordinance of 1787, Lincoln's Gettysburg Address, and Martin Luther King, Jr.'s "I Have a Dream" speech. These diverse supplements are indispensible instruments for making sense of the written Constitution. When used correctly, these extra-textual aids support and enrich the written document without supplanting it.
An authoritative work by one of America's preeminent legal scholars, America's Unwritten Constitution presents a bold new vision of the American constitutional system, showing how the complementary relationship between the Constitution's written and unwritten components is one of America's greatest and most enduring strengths.
640 pages, Paperback
First published September 11, 2012
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About the author
Akhil Reed Amar
31 books184 followersAkhil Reed Amar is currently Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law in both Yale College and Yale Law School. He received his B.A, summa cum laude, in 1980 from Yale College, and his J.D. in 1984 from Yale Law School, where he served as an editor of The Yale Law Journal. After clerking for Judge Stephen Breyer, he joined the Yale faculty in 1985. In 1994 he received the Paul Bator award from the Federalist Society for Law and Public Policy, and in 1997 he was awarded an honorary doctorate of law by Suffolk University. In 1995 the National Law Journal named him as one of 40 “Rising Stars in the Law,” and in 1997 The American Lawyer placed him on their “Public Sector 45" list. His work on the Bill of Rights also earned the ABA Certificate of Merit and the Yale University Press Governor’s Award. He has delivered endowed lectures at over two dozen colleges and universities, and has written widely on constitutional issues for such publications as The New York Times, The Washington Post, The Los Angeles Times, The Wall Street Journal, Time Magazine, The New Republic, and Slate. He is also a contributing editor to The American Lawyer. His many law review articles and books have been widely cited by scholars, judges, and lawmakers; for example, the Justices of the United States Supreme Court have invoked his work in more than twenty cases, and he has testified before Congress on a wide range of constitutional issues. Along with Dean Paul Brest and Professors Sanford Levinson, Jack Balkin, and Reva Siegel, Professor Amar is the co-editor of a leading constitutional law casebook, Processes of Constitutional Decisionmaking. He is also the author of several books, including The Constitution and Criminal Procedure: First Principles (Yale Univ. Press, 1997), The Bill of Rights: Creation and Reconstruction (Yale Univ. Press, 1998), America’s Constitution: A Biography (Random House 2005), and most recently, America’s Unwritten Constitution: The Precedents and Principles We Live By (Basic Books, 2012).
from http://www.law.yale.edu/faculty/amarb...
from http://www.law.yale.edu/faculty/amarb...
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March 2, 2014
Akhil Amar’s “America’s Unwritten Constitution” is an accessible and well-executed book that lays out how Amar thinks about the Constitution. By interpreting the document in terms of its historical context throughout many periods of American history, Amar guides the reader through his own internally consistent and lucid understanding of the Constitution.
Most of the book is individual case studies (grouped by broad topics), although towards the end Amar makes several strong recommendations regarding technicalities of jury duties and the election of the president. He closes by exhorting young people today to interact with the “living” Constitution and strive to make changes to bring about a more perfect union.
For me, this book served as a reasonably good overview of the history of Constitutional law and some currently unresolved issues. There were a few slow sections and I thought Amar’s writing style was a bit bombastic at times (the word “unspeakable” needs to be removed from his vocabulary!), but what do you expect from a law professor?
A few of my favorite passages below:
#########################
Constitutional quicksand awaits all who insist on reading every clause of the document literally… must come to understand the difference between reading the Constitution literally and reading the document faithfully.
The key that unlocks the door is the simple idea that no clause of the Constitution exists in textual isolation.
According to Marshall, even “in the absence” of a necessary-and-proper clause, congressional power should be read in a generous and commonsensical way so as to achieve the basic purposes for which the American people had established the Constitution.
Marshall’s constitutional genius was to grasp that Americans had not ratified the Constitution clause by clause, enumerated power by enumerated power. The people had ratified the Constitution as a whole, and thus the federal government’s powers needed to be read as a whole rather than as a jumble of discrete clauses.
The entire Constitution was based on the notion that the American people stood supreme over government officials, who were mere servants of the public, not masters over them.
America’s Constitution is premised on the asymmetric idea that it is better to let a guilty man walk free than to convict an innocent man.
Article II obliges the president to take a uniquely personal oath to “preserve, protect, and defend the Constitution” to “the best of my Ability”—a poignant reminder that our system depends upon the willingness of specific individuals to pledge fidelity to the grand constitutional project.
(This was John Marshall’s profound insight in McCulloch v. Maryland, where he declared that the Constitution could not properly “partake of the prolixity of a legal code,” because if it did, it would “never be understood by the public.”)
Despite these problems, the Court was wise to stop where it did. Each of the four most salient subspecies of gerrymandering—racial gerrymandering, bipartisan gerrymandering, one-party gerrymandering, and incumbent-protective gerrymandering—implicated a unique cluster of constitutional considerations, and none of these clusters supported unilateral judicial intervention.
(If the official cannot in good conscience carry out the president’s orders, the path of honor is generally not defiance but resignation.)
AMERICAN ELECTION LAW has created conducive conditions for this entrenched Republican-Democrat duopoly. The cornerstone of this legal foundation is a simple rule in the United States Code that disaggregates each state into single-member congressional districts.
THE SUCCESS OF our national constitutional project requires that certain things must always exist, and exist in abundance, in America. Virtue, honor, and conscience rank high among these essential elements.
Writing as “Publius”—the “public man”—in The Federalist No. 55, James Madison observed that although “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.” According to Madison/Publius, “[r]epublican government presupposes the existence of these qualities in a higher degree than any other form” of government and necessarily presumes that “there is…sufficient virtue among men for self-government.”
These jury privileges and immunities were acted out on a grand stage in 1688, when the soon-to-be-deposed King James II prosecuted certain Anglican clerics who had expressed opposition to his religious policies. While the trial judges disagreed among themselves about the relevant legal issues, the twelve jurors in the Seven Bishops Case unanimously acquitted, delivering one of the most celebrated rebukes to the Crown in English history and setting the scene for the Glorious Revolution that soon followed.
The best ideas may well come from the young. Madison and Hamilton were both in their mid-thirties when they composed the lion’s share of The Federalist essays championing world government for the New World. Whereas Publius was a joint product of three men (John Jay rounded out the trio), today’s technology makes it possible for many minds across the planet to collaborate. If the blessings of liberty are to be secured for posterity—not just for Americans but for all God’s children—young visionaries must speak up. Publius II, where are you? The world awaits your proposals.
Most of the book is individual case studies (grouped by broad topics), although towards the end Amar makes several strong recommendations regarding technicalities of jury duties and the election of the president. He closes by exhorting young people today to interact with the “living” Constitution and strive to make changes to bring about a more perfect union.
For me, this book served as a reasonably good overview of the history of Constitutional law and some currently unresolved issues. There were a few slow sections and I thought Amar’s writing style was a bit bombastic at times (the word “unspeakable” needs to be removed from his vocabulary!), but what do you expect from a law professor?
A few of my favorite passages below:
#########################
Constitutional quicksand awaits all who insist on reading every clause of the document literally… must come to understand the difference between reading the Constitution literally and reading the document faithfully.
The key that unlocks the door is the simple idea that no clause of the Constitution exists in textual isolation.
According to Marshall, even “in the absence” of a necessary-and-proper clause, congressional power should be read in a generous and commonsensical way so as to achieve the basic purposes for which the American people had established the Constitution.
Marshall’s constitutional genius was to grasp that Americans had not ratified the Constitution clause by clause, enumerated power by enumerated power. The people had ratified the Constitution as a whole, and thus the federal government’s powers needed to be read as a whole rather than as a jumble of discrete clauses.
The entire Constitution was based on the notion that the American people stood supreme over government officials, who were mere servants of the public, not masters over them.
America’s Constitution is premised on the asymmetric idea that it is better to let a guilty man walk free than to convict an innocent man.
Article II obliges the president to take a uniquely personal oath to “preserve, protect, and defend the Constitution” to “the best of my Ability”—a poignant reminder that our system depends upon the willingness of specific individuals to pledge fidelity to the grand constitutional project.
(This was John Marshall’s profound insight in McCulloch v. Maryland, where he declared that the Constitution could not properly “partake of the prolixity of a legal code,” because if it did, it would “never be understood by the public.”)
Despite these problems, the Court was wise to stop where it did. Each of the four most salient subspecies of gerrymandering—racial gerrymandering, bipartisan gerrymandering, one-party gerrymandering, and incumbent-protective gerrymandering—implicated a unique cluster of constitutional considerations, and none of these clusters supported unilateral judicial intervention.
(If the official cannot in good conscience carry out the president’s orders, the path of honor is generally not defiance but resignation.)
AMERICAN ELECTION LAW has created conducive conditions for this entrenched Republican-Democrat duopoly. The cornerstone of this legal foundation is a simple rule in the United States Code that disaggregates each state into single-member congressional districts.
THE SUCCESS OF our national constitutional project requires that certain things must always exist, and exist in abundance, in America. Virtue, honor, and conscience rank high among these essential elements.
Writing as “Publius”—the “public man”—in The Federalist No. 55, James Madison observed that although “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.” According to Madison/Publius, “[r]epublican government presupposes the existence of these qualities in a higher degree than any other form” of government and necessarily presumes that “there is…sufficient virtue among men for self-government.”
These jury privileges and immunities were acted out on a grand stage in 1688, when the soon-to-be-deposed King James II prosecuted certain Anglican clerics who had expressed opposition to his religious policies. While the trial judges disagreed among themselves about the relevant legal issues, the twelve jurors in the Seven Bishops Case unanimously acquitted, delivering one of the most celebrated rebukes to the Crown in English history and setting the scene for the Glorious Revolution that soon followed.
The best ideas may well come from the young. Madison and Hamilton were both in their mid-thirties when they composed the lion’s share of The Federalist essays championing world government for the New World. Whereas Publius was a joint product of three men (John Jay rounded out the trio), today’s technology makes it possible for many minds across the planet to collaborate. If the blessings of liberty are to be secured for posterity—not just for Americans but for all God’s children—young visionaries must speak up. Publius II, where are you? The world awaits your proposals.
March 12, 2013
Good, but not nearly as good as all the fluffing reviews crack it up to be. And, it's got a couple of specific problems.
It's perhaps a 3.5 star, but, I'm moving down rather than up a half star.
Among its problems?
Amar claims that the Constitution enshrines 2-party government. No it doesn't, not even after the 12th Amendment. Even taking into account his definition of an unwritten Constitution, it doesn't, not from where I sit. Things like the requirement for members of the Federal Election Commission, etc., are sub-constitutional.
Second is his quirky interpretation of the Second Amendment being written to enshrine local militia vis-a-vis a standing national army. That would surely be news to George Washington and probably to at least a few others of the Founders, as well as many Constitutional scholars past and present. Rather, it was surely written to make sure that local militias would be well-organized when, as necessary, they would be called into national service; i.e., seeing militias as adjuncts, not in opposition.
Third is the naivete in the last chapter about future Constitutional amendments. With the tea partiers of today, at least some of them, wanting to throw out the 17th Amendment and its direct election of senators, Amar's political acumen must seriously be questioned.
Finally, per one other reviewer, these are the biggest, but not the only ways, in which Amar offers unsubstantiated opinion.
The only outstandingly good part was his discussion of the rights of jurors, including not just nullification, but the right to convict of a lesser charge than the one in front of them and more.
Well, I'd heard of him for some time. And now I've read him. No need to read him further.
It's perhaps a 3.5 star, but, I'm moving down rather than up a half star.
Among its problems?
Amar claims that the Constitution enshrines 2-party government. No it doesn't, not even after the 12th Amendment. Even taking into account his definition of an unwritten Constitution, it doesn't, not from where I sit. Things like the requirement for members of the Federal Election Commission, etc., are sub-constitutional.
Second is his quirky interpretation of the Second Amendment being written to enshrine local militia vis-a-vis a standing national army. That would surely be news to George Washington and probably to at least a few others of the Founders, as well as many Constitutional scholars past and present. Rather, it was surely written to make sure that local militias would be well-organized when, as necessary, they would be called into national service; i.e., seeing militias as adjuncts, not in opposition.
Third is the naivete in the last chapter about future Constitutional amendments. With the tea partiers of today, at least some of them, wanting to throw out the 17th Amendment and its direct election of senators, Amar's political acumen must seriously be questioned.
Finally, per one other reviewer, these are the biggest, but not the only ways, in which Amar offers unsubstantiated opinion.
The only outstandingly good part was his discussion of the rights of jurors, including not just nullification, but the right to convict of a lesser charge than the one in front of them and more.
Well, I'd heard of him for some time. And now I've read him. No need to read him further.
May 16, 2024
The middle dragged, but the ending was strong. Not nearly as good as America’s Constitution: A Biography though.
April 16, 2017
Akhil Amar’s America’s Unwritten Constitution takes a different approach to constitutional interpretation. Instead of falling somewhere on the literalism—living constitution dichotomy, Amar emphasizing looking at the “implicit constitution” and brings a different perspective to the famous Mcculloch vs. Maryland . Amar argues that the decision also lays the foundation for looking at the implicit part of the constitution.
In other words, the fact that not every possible issue is addressed is not entirely an accident: if every single issue was explicitly addressed in the constitution, the constitution would become unwieldy and difficult to understand—Amar compares such a constitution to todays tax code. In other words, the explicit constitution was written to be understandable to a mass number of people, instead of covering every possible issue—the interpretation of many issues would become obvious even if they weren’t explicitly written.
Amar offers a critique of the Warren court, suggesting that Mapp v. Ohio , the case recognizing the exclusionary rule, was not properly decided. Although Amar criticizes the Warren Court for recognizing the exclusionary rule, he also credits the Warren Court for many decisions that were well-grounded in constitutional law. Amar does an excellent job of illustrating how the constitution is neither pro-religious nor anti-religious. One of Amar’s more salient points is that what’s legally correct and what’s morally correct are not interchangeable: i.e. a decision may be legally correct yet morally disagreeable.
Another salient point is how the constitution has aided the rise of the two-party system, especially the requirement of single-member districts. Amar also offers an interesting perspective on whether the constitution should be changed to permit naturalized citizens to run for the presidency. Authortative and well-researched, Amar brings a new and different perspective that is relevant to the many issues the United States faces today.
In other words, the fact that not every possible issue is addressed is not entirely an accident: if every single issue was explicitly addressed in the constitution, the constitution would become unwieldy and difficult to understand—Amar compares such a constitution to todays tax code. In other words, the explicit constitution was written to be understandable to a mass number of people, instead of covering every possible issue—the interpretation of many issues would become obvious even if they weren’t explicitly written.
Amar offers a critique of the Warren court, suggesting that Mapp v. Ohio , the case recognizing the exclusionary rule, was not properly decided. Although Amar criticizes the Warren Court for recognizing the exclusionary rule, he also credits the Warren Court for many decisions that were well-grounded in constitutional law. Amar does an excellent job of illustrating how the constitution is neither pro-religious nor anti-religious. One of Amar’s more salient points is that what’s legally correct and what’s morally correct are not interchangeable: i.e. a decision may be legally correct yet morally disagreeable.
Another salient point is how the constitution has aided the rise of the two-party system, especially the requirement of single-member districts. Amar also offers an interesting perspective on whether the constitution should be changed to permit naturalized citizens to run for the presidency. Authortative and well-researched, Amar brings a new and different perspective that is relevant to the many issues the United States faces today.
May 6, 2013
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Thus begins the document upon which our nation's legal structure is built. I found this book to be intriguing because, as much as we revere the written Constitution, there also exists a parallel and equally vital unwritten constitution, established in legal precedence as jurists from the beginning have labored to interpret and apply the meaning of the Constitution itself. As Americans, there are many freedoms and "rights" that we take for granted as being encompassed within the Constitution, when in fact the Constitution specifically enumerates no such thing. However, courts, legislators, Presidents ... and the populace in general have helped to shape the "precedents and principles we live by"...those rights we take for granted as being ours as Americans, the foundation of which lies in the Constitution, built up and expanded upon down through the centuries.
For anyone interested in a brief history lesson on how the U.S. Constitution came to be as it is...or isn't...this book is a page-turner. I found it utterly fascinating, and it reads easily enough for an amateur like me to understand the legal jargon, yet is also a book that surely any student of law could truly appreciate.
Thus begins the document upon which our nation's legal structure is built. I found this book to be intriguing because, as much as we revere the written Constitution, there also exists a parallel and equally vital unwritten constitution, established in legal precedence as jurists from the beginning have labored to interpret and apply the meaning of the Constitution itself. As Americans, there are many freedoms and "rights" that we take for granted as being encompassed within the Constitution, when in fact the Constitution specifically enumerates no such thing. However, courts, legislators, Presidents ... and the populace in general have helped to shape the "precedents and principles we live by"...those rights we take for granted as being ours as Americans, the foundation of which lies in the Constitution, built up and expanded upon down through the centuries.
For anyone interested in a brief history lesson on how the U.S. Constitution came to be as it is...or isn't...this book is a page-turner. I found it utterly fascinating, and it reads easily enough for an amateur like me to understand the legal jargon, yet is also a book that surely any student of law could truly appreciate.
May 30, 2013
It is a good thing to think about our assumptions and beliefs about what the U.S. Constitution really says and the developed body of interpretation, tradition, and practice that is the Constitution in action. Hopefully, readers will have a stronger sense of both the history and tradition and the responsibility for continued interpretation that keeps the Constitution a relevant and living document creating an America in which diverse peoples may live and thrive together.
Want to read
August 21, 2016Cited in the National Constitution Center's Podcast, "We the People", in the delightful and fascinating August 4th, 2016 episode on
The Presidency of George Washington
. The author, Akhil Reed Amar of Yale University, was one of the participants.
December 6, 2012
Outstanding and even I could comprehend the authors reasoning. Well written and great information to consider. I enjoy Mr.Amar's clear and incisive way of explaining ideas.
January 6, 2015
A fantastic overview of constitutional interpretation, with a clear agenda, but presented honestly and transparently. This is the best "civics" book I've read since studying Government at UVA.
February 20, 2018
Shockingly naive about inequities in the criminal justice system
I was very surprised and often flabbergasted reading this book. Just one example: the author writes about the Sixth Amendment right of persons charged with a crime as if it were truly meaningful, although anyone who has practiced law for a year or longer knows that prosecutors have to handle very few cases compared to public defenders, and have enormously greater resources at their disposal. According to the Washington State Bar Bulletin in 2006, public defenders representing defendants charged with felonies can only devote a total of 1.5 hors to each of their clients. Writing about parity of legal processes for defendants and prosecutors strikes me as actually obscene under such circumstances. The author repeatedly mentins the likelihood of criminal defendants lying in court. Without saying so explicitly, he shares the same bias as a super-majority of jurors who lie during voir dire when they tell judges that they agree with the concept that a defendant must be presumed innocent until proven guilty, but usually state nonchalantly in post trial surveys that of course they assumed the defendant was guilty, because the police would not have charged the defendant with a crime otherwise. I have not finished the book yet, but I doubt the author mentions that most jurors in criminal trials are heavily biased toward police officers, and either do not know or do not care that police officers routinely commit perjury while testifying under oath. I spent years representing plaintiffs in section 1983 cases against police officers, and frequently observed such misconduct. (I also represented a couple of police officers who were falsely accused of official misconduct or falsely accused of crimes (e.g., an officer whose ex-wife falsely claimed he had raped her and that she was too terrified to live at her own hose but had to live in hiding with a friend; as this was purportedly occurring, she repeatedly called the officer from her own house and shouted obscenities and threats to destroy his career, from her own house. But because the press had already condemned the officer publicly, his department threw him to the wolves and fired him). The officers who testified against him committed perjury more times than I could count. They know that the law enforcement agency they work for is not going discipline them for lying under oath. That is just ONE of many such inaccuracies and biases in this book.
I was very surprised and often flabbergasted reading this book. Just one example: the author writes about the Sixth Amendment right of persons charged with a crime as if it were truly meaningful, although anyone who has practiced law for a year or longer knows that prosecutors have to handle very few cases compared to public defenders, and have enormously greater resources at their disposal. According to the Washington State Bar Bulletin in 2006, public defenders representing defendants charged with felonies can only devote a total of 1.5 hors to each of their clients. Writing about parity of legal processes for defendants and prosecutors strikes me as actually obscene under such circumstances. The author repeatedly mentins the likelihood of criminal defendants lying in court. Without saying so explicitly, he shares the same bias as a super-majority of jurors who lie during voir dire when they tell judges that they agree with the concept that a defendant must be presumed innocent until proven guilty, but usually state nonchalantly in post trial surveys that of course they assumed the defendant was guilty, because the police would not have charged the defendant with a crime otherwise. I have not finished the book yet, but I doubt the author mentions that most jurors in criminal trials are heavily biased toward police officers, and either do not know or do not care that police officers routinely commit perjury while testifying under oath. I spent years representing plaintiffs in section 1983 cases against police officers, and frequently observed such misconduct. (I also represented a couple of police officers who were falsely accused of official misconduct or falsely accused of crimes (e.g., an officer whose ex-wife falsely claimed he had raped her and that she was too terrified to live at her own hose but had to live in hiding with a friend; as this was purportedly occurring, she repeatedly called the officer from her own house and shouted obscenities and threats to destroy his career, from her own house. But because the press had already condemned the officer publicly, his department threw him to the wolves and fired him). The officers who testified against him committed perjury more times than I could count. They know that the law enforcement agency they work for is not going discipline them for lying under oath. That is just ONE of many such inaccuracies and biases in this book.
August 20, 2018
The idea is that not everything that US laws are based on exist directly in the Constitution. At some level, this is sacrilege, and at another it’s obvious. (For example, the 19th Amendment says that women can vote, but it doesn’t say they can serve on juries. That’s implicit.)
I certainly learned a lot, and the author is clearly well-versied in Constitutional law and history. But there were a few weirdnesses. Like he regularly states that SCOTUS got something right or wrong (or right but for the wrong reason, or…). As if there’s a right answer, and he is the one who knows it. He also has this almost visceral reaction against the Exclusion rule. He does try to explain why he hates it so much, but I found it unconvincing. He gives a lot of credit to the Warren court, really more than anything else in history, to explain the current understanding of… well, the whole Constitution.
He does assume that you have a pretty solid understanding and background---more than I do. I found myself regularly paging to the back of the book to read the relevant part of the written Constitution—mostly the 14th amendment, to be honest. And lots of trips to the index to remind myself of various named court cases. Some of these, in fact, were never explained in the text, I was just supposed to know. Also funny, is that he referred to the Casey court. Of course, you can’t find that in the index unless you remembered it was actually Planned Parenthood v Casey, so that didn’t help.
Be warned that it’s 480 pages of text, but it’s really more like 580 pages, because there’s lots of juicy stuff in the end notes.
I certainly learned a lot, and the author is clearly well-versied in Constitutional law and history. But there were a few weirdnesses. Like he regularly states that SCOTUS got something right or wrong (or right but for the wrong reason, or…). As if there’s a right answer, and he is the one who knows it. He also has this almost visceral reaction against the Exclusion rule. He does try to explain why he hates it so much, but I found it unconvincing. He gives a lot of credit to the Warren court, really more than anything else in history, to explain the current understanding of… well, the whole Constitution.
He does assume that you have a pretty solid understanding and background---more than I do. I found myself regularly paging to the back of the book to read the relevant part of the written Constitution—mostly the 14th amendment, to be honest. And lots of trips to the index to remind myself of various named court cases. Some of these, in fact, were never explained in the text, I was just supposed to know. Also funny, is that he referred to the Casey court. Of course, you can’t find that in the index unless you remembered it was actually Planned Parenthood v Casey, so that didn’t help.
Be warned that it’s 480 pages of text, but it’s really more like 580 pages, because there’s lots of juicy stuff in the end notes.
December 20, 2018
Published in 2012, much of his commentary on the American electoral system is prescient for today's political reality. He states in the introduction that "although this book uses legal materials and legal reasoning, . . . nonlawyers should not be daunted." Ultimately, it was a very dense publication that was hard to read at the best of times and totally obtuse at the worst. I appreciated the many new ideas to which Amar exposed me, or, rather, new ways of looking at issues, for example, constitutional case law on privacy or the exclusionary rule (but nonlawyers need not be daunted!). According to Professor Amar's biography on Yale University's website, he has been honored by the Federalist Society, which I found hard to believe. The bio further states that "he has been cited by Supreme Court Justices across the spectrum in more than three dozen cases," which makes more sense.
It is not easy to pigeonhole Prof. Amar's theories. Much of the book repudiates a purely textual or literal reading of the Constitution; in fact he states "rarely does the featured phrase, if read in isolation and at face value, definitely answer the various legal questions that I have tried to analyze. But the featured phrase typically meshes with various elements of America's unwritten Constitution to direct faithful interpreters to constitutional solutions."
It is not easy to pigeonhole Prof. Amar's theories. Much of the book repudiates a purely textual or literal reading of the Constitution; in fact he states "rarely does the featured phrase, if read in isolation and at face value, definitely answer the various legal questions that I have tried to analyze. But the featured phrase typically meshes with various elements of America's unwritten Constitution to direct faithful interpreters to constitutional solutions."
February 14, 2023
I read this book while also reading a few others, so it need not take months to finish, and as large as it is I found it a pleasure to read and so it was actually easy to get through the material as I devoted the time. There is an immense breadth of material here so expect to wander all over the Constitution - text, history, and structure. My experience as a student and citizen, having attended public school with peers that were always part of the 'advanced' academic program, is that civics teaches nothing like this, and thus this material fills a giant hole in the citizenry's understanding of our founding and most basic laws. It seems obvious that to teach this material requires not just a Con Law professor but a historian as well, and Akhil Amar fills those shoes. Yes, the author can be ponderous while being insightful. The insights, however, are brilliant and often unique, and a deep respect for the law and democracy are evident everywhere. One of the great benefits of reading the books of Professor Amar is the elimination of all the ums and ahs and repetition in his podcast episodes, so those that might find his vocal idiosyncrasies too annoying can rejoice in the alternative, which is well edited and entirely worthwhile.
November 7, 2017
I have always enjoyed listening to Akhil Reed Amar explain with such clarity many of the issues facing our country. Well, his book was just as good. Gets to the nuts and bolts of our inner workings from the courts perspective . The problem facing our nation is the ICP is probably the greediest of the greedy. We stopped that a few times in our countries short history, but this is on a new playing field with the rich owning our laws, our politicians and gathering more and more of the money in order to buy more. Ballgame is as well over. When and if we ever get some true patriots to step up and end this madness the rich will never be satiated.
April 13, 2020
4.5. Fascinating. I really enjoyed the segment of the book arguing that there are six documents that are so closely aligned to the constitution that they can be read as applying to it even though they're not part of it: the Northwest Ordinance, Gettysburg Address, MLK's Dream Speech, Brown v. Board of Education decision, and the Declaration of Independence. The book overall was a really interesting exercise in reading between the lines and thought experiments, and a good historical education. A great read. I started it months and months ago but didn't get around to finishing it until quarantine, and then I finished it in two days.
December 25, 2020
I think this trilogy of books about the Constitution is simply brilliant.
Over the past five years, I've read all three - America's Constitution, a Biography; The Bill of Rights; and this one. I don't consider myself a Constitutional scholar, but I do consider myself well versed in the ins and outs of Constitutional history, and how it all hangs together, the text, the amendments and the "unwritten" conventions and precedents that direct our interpretation of the Constitution.
Over the past five years, I've read all three - America's Constitution, a Biography; The Bill of Rights; and this one. I don't consider myself a Constitutional scholar, but I do consider myself well versed in the ins and outs of Constitutional history, and how it all hangs together, the text, the amendments and the "unwritten" conventions and precedents that direct our interpretation of the Constitution.
July 19, 2022
Each chapter is organized around a different theme, some more compelling than others. An often enjoyable read but not an essential one. The subtitle "the precedents we live by" suggested to me the book would give a more thorough account of, e.g., how the commerce power, equal protection clause, and 1st Amendment are all understood today. I got a little of that, but not as much as I would have thought from 485 pages.
October 29, 2018
Fascinating companion book to Amar's earlier one on the written Constitution. Explores many questions that, in this day and age, it behooves us all to be familiar with. How can we defend our democracy from the threats it faces from vitriolic attack on fundamental rights if we don't understand our foundational law? Well worth reading.
May 20, 2021
My professor at Yale... this is the book for my class with him.... Maybe I better re-read the instructions..lol?! I flunked my first exam!!
But this is a very enlightening historical examination of your constitution.
But this is a very enlightening historical examination of your constitution.
November 22, 2025
Amar builds once again a grand narrative for the American Constitution, yet he refuses to provide a grand theory of constitutional interpretation. Originalism is perhaps done, but not explained in this book.
November 30, 2025
DNF at page 98. I just couldn’t take this dude’s naivety. This book was written pre-Trump, so maybe I am being too hard on the author, but just knowing what SCOTUS has done since Trump has been in office compared to this author’s ideal theory is just too much.
May 17, 2019
Excellent analysis and insightful opinions on how the constitution is lived and practiced in the US.
July 8, 2019
I love you sir
April 20, 2023
Interesting book on the relationship between what is actually in the Constitution and what has happened since with amendments and other things that impact the Constitution
February 20, 2024
Some interesting insights, but
1) there are some contortions/logical leaps that I'm unconvinced are well-supported
2) I'm not sure how well some of this book has aged
1) there are some contortions/logical leaps that I'm unconvinced are well-supported
2) I'm not sure how well some of this book has aged
January 19, 2025
Excellent book, similar to his Biography book. Though one does not have to agree with all aspects, certainly thought provoking and inspiring.
December 1, 2015
Amar makes the case in the introduction to "America's Unwritten Constitution" that the book is aimed at educated readers; no particular legal education is necessary. This is only partially true. A normally-educated reader will likely understand the broad contours of Amar's arguments, but readers with legal backgrounds will take much more home with them. Familiarity with well-known (in legal circles) legal cases will make it easier for readers to connect the dots of Amar's historical flow that underpin much of his thesis, which is that the Constitution is best understood by looking beyound the document's "terse text," as Amar is wont to say.
This general assertion is controversial only to strict Constitutional textualists, and my primary beef with this book is in fact not Amar's broad thesis -- I have always believed, and continue to belive, that strict textualists lack a logical leg to stand on when it comes to actually applying the Constitution to real life situations. My issue is the extent to which Amar is willing to go to fill in the Constitution's blanks. Specifically, Amar argues that the practice and understanding of broad segments of Americans with respect to Constitutional ideals should direct how we understand the document. In other words, the Constitution is what the majority of Americans believe it is. There is a lot of sense in this. But it begs a question that Amar glosses over: did We the People in 1787-1789 lay down Constitutional, legal boundaries within which future generations should remain, subject to the amendment process embedded in the document itself, or do We the People of today (and tomorrow, and the day after) -- by our very actions and beliefs, rather than necessarily through the amendment process -- get to redraw and redefine those boundaries from one generation to the next? In short, what is the nature of the Constitution? Amar gives this question short shrift, though in my view his assumption of a very malleable document is a cornerstone for his entire thesis.
That said, it's hard for mere laypeople such as myself to withstand the strength of Amar's substantive and historical knowledge of the Constitution, as well as the case law and practice that surrounds it. His writing is fluid and engaging, and even where I disagreed I had to admit that I couldn't always explain to myself exactly why. And in more than one area I found Amar's arguments easily compelling enough to persuade me of the correctness of his views. "America's Unwritten Constitution" is an easy four stars and a wonderful volume for scholars and aficionados of America's framing document, but Amar has his views and biases and I felt he insufficiently justified them.
This general assertion is controversial only to strict Constitutional textualists, and my primary beef with this book is in fact not Amar's broad thesis -- I have always believed, and continue to belive, that strict textualists lack a logical leg to stand on when it comes to actually applying the Constitution to real life situations. My issue is the extent to which Amar is willing to go to fill in the Constitution's blanks. Specifically, Amar argues that the practice and understanding of broad segments of Americans with respect to Constitutional ideals should direct how we understand the document. In other words, the Constitution is what the majority of Americans believe it is. There is a lot of sense in this. But it begs a question that Amar glosses over: did We the People in 1787-1789 lay down Constitutional, legal boundaries within which future generations should remain, subject to the amendment process embedded in the document itself, or do We the People of today (and tomorrow, and the day after) -- by our very actions and beliefs, rather than necessarily through the amendment process -- get to redraw and redefine those boundaries from one generation to the next? In short, what is the nature of the Constitution? Amar gives this question short shrift, though in my view his assumption of a very malleable document is a cornerstone for his entire thesis.
That said, it's hard for mere laypeople such as myself to withstand the strength of Amar's substantive and historical knowledge of the Constitution, as well as the case law and practice that surrounds it. His writing is fluid and engaging, and even where I disagreed I had to admit that I couldn't always explain to myself exactly why. And in more than one area I found Amar's arguments easily compelling enough to persuade me of the correctness of his views. "America's Unwritten Constitution" is an easy four stars and a wonderful volume for scholars and aficionados of America's framing document, but Amar has his views and biases and I felt he insufficiently justified them.
February 16, 2025
The book's most profound contribution lies in its systematic exposition of how America's unwritten constitutional principles interact with and often strengthen its written ones. Amar's analysis builds upon, yet diverges from, Ackerman's influential work on constitutional change, offering a more textually-grounded approach to understanding how constitutional meaning evolves. Through careful examination of historical practice, judicial precedent, and cultural developments, Amar demonstrates how unwritten constitutional rules – from judicial review to executive privilege – have emerged not in opposition to the written Constitution but as necessary implementations of its deeper principles. His treatment of these issues reveals how seemingly extra-constitutional practices often serve to fulfill rather than undermine the Constitution's fundamental purposes.
While Amar's textual sophistication offers invaluable insights into constitutional interpretation, it is Bruce Ackerman's more radical theory of constitutional moments that provides the more compelling foundational account of American constitutionalism. Through his three-volume "We the People" series, Ackerman demonstrates how the Constitution's meaning has been fundamentally transformed through periods of heightened popular sovereignty - most notably the Founding, Reconstruction, and the New Deal - that amount to informal constitutional amendments. This framework better explains the dramatic shifts in constitutional understanding that have occurred throughout American history, particularly the New Deal's transformation of federal power, which cannot be adequately explained through conventional theories of textual interpretation. Ackerman's theory of dual democracy, distinguishing between periods of normal politics and moments of higher lawmaking, captures something essential about American constitutionalism that more text-bound approaches miss: the idea that legitimate constitutional change can occur through sustained popular mobilization and institutional conflict, even without formal Article V amendments. His account of how the American people can, in special moments, exercise their constituent power to remake their constitutional order provides a more satisfying theoretical foundation for understanding both the stability and dynamism of American constitutionalism than approaches that remain more tightly tethered to the written text.
While Amar's textual sophistication offers invaluable insights into constitutional interpretation, it is Bruce Ackerman's more radical theory of constitutional moments that provides the more compelling foundational account of American constitutionalism. Through his three-volume "We the People" series, Ackerman demonstrates how the Constitution's meaning has been fundamentally transformed through periods of heightened popular sovereignty - most notably the Founding, Reconstruction, and the New Deal - that amount to informal constitutional amendments. This framework better explains the dramatic shifts in constitutional understanding that have occurred throughout American history, particularly the New Deal's transformation of federal power, which cannot be adequately explained through conventional theories of textual interpretation. Ackerman's theory of dual democracy, distinguishing between periods of normal politics and moments of higher lawmaking, captures something essential about American constitutionalism that more text-bound approaches miss: the idea that legitimate constitutional change can occur through sustained popular mobilization and institutional conflict, even without formal Article V amendments. His account of how the American people can, in special moments, exercise their constituent power to remake their constitutional order provides a more satisfying theoretical foundation for understanding both the stability and dynamism of American constitutionalism than approaches that remain more tightly tethered to the written text.
November 14, 2015
I was more interested in what he had to say as a scholar of law than a political scientist. I picked up a lot (in particular interesting arguments regarding the enactment of the constitution and reconstruction arguments) and definitely learned a lot of historical context. Additionally, I really enjoyed his bringing in of sources such as the Federalist, Blackstone's Commentaries, a short mention of Rawls and colonial cases such as Zengler. The author is clearly knowledgeable and the breadth of topics is pretty impressive. I felt like generally the book wasn't organized very well, it was jumpy between topics and sometimes instead of sustained argument it would dismiss counter arguments with cliches. I don't think he spends enough time refuting various schools of thought, and is generally more preoccupied with being novel or clever. Generally, I thought it was too topical, and reads more like a political science book than a book about the law. Still very enjoyable and educational, I'm going to work on his earlier book next.
August 20, 2022
I heard an interview with the author on NPR. The book sounded quite interesting, so I requested it from my local public library. It took several weeks but they acquired it and I borrowed it. This book offers a detailed account of how the U.S. Constitution is interpreted based on Supreme court decisions and the changing times. It is not just an historical discussion, but it is peppered with the author's opinions. Yes, it was quite interesting, but I think it would be considerable more relevant to a law student than to me, with a civilian's interest in constitutional law.
Before I had reached the halfway mark, I was losing interest in continuing. Amar makes his points thoroughly, to the point of beating a dead horse. It's not that it isn't interesting, but his writing is just too tedious to maintain my fascination. I put it down, and eventually realized that I would not finish it before it needed to be returned to the library. I chose not to renew it.
Before I had reached the halfway mark, I was losing interest in continuing. Amar makes his points thoroughly, to the point of beating a dead horse. It's not that it isn't interesting, but his writing is just too tedious to maintain my fascination. I put it down, and eventually realized that I would not finish it before it needed to be returned to the library. I chose not to renew it.
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