Book review

The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution

Michael Stokes Paulsen

Distinguished University Chair and Professor of Law, University of St. Thomas School of Law.

My thanks to Gary Lawson, Larry Solum, and Sherif Girgis for comments on fragments of early drafts. (Do not blame them for what I say.)Akhil Amar is an old and dear friend. We were roommates and constitutional law sparring partners as students at Yale Law School in the early 1980s. We disagreed wildly and occasionally vehemently—yet somehow still cheerfully—over many things. We continue to disagree over a great many things today—including (as this review demonstrates) nearly everything in his recent book. As noted below, I have reviewed two of Akhil’s other books highly favorably. See note 3. I hope he will forgive me this unfavorable— but still cheerful—review, which I offer in the same spirit as our dorm-room screaming matches thirty years ago. (You told me I could let you have it, if I thought you deserved it, Akhil. Well, here it is!)

A review of America’s Unwritten Constitution: The Precedents and Principles We Live By. Akhil Reed Amar. Basic Books, 2012. 615 pages.

No, no, no! America has no “unwritten constitution”! Ours is a system of written constitutionalism. There are only sound conclusions and inferences—or unsound ones—from the text itself. The text—the whole text, of course, including the relationships and interactions among differing provisions, the structures of government it creates, the logic of its arrangements, and the inferences that fairly can be drawn from its provisions—is the sole object of constitutional interpretation. The text of course must be understood in terms of the original public meaning of its words and phrases, in the linguistic, social, and political contexts in which they were written: history and context illuminate textual meaning; so does constitutional structure; so can precedent, at least sometimes. But ultimately, it is the objective meaning of the words of the written constitutional text that is the whole ball game. If what one is doing is interpreting and applying the Constitution as authoritative written law—as opposed to engaging in some other interesting project—then one looks to understand the meaning of the text, the whole text, and nothing but the text. And if one’s sworn duty is to faithfully interpret and apply the Constitution—if one is a judge or other public official who has sworn an oath to support the Constitution, or to preserve, protect, and defend it (as opposed to a mere law professor who has sworn no such thing)—one cannot do anything else without violating one’s oath.

The Constitution of the United States does not answer, or even address, every important question of government, politics, law, or rights. Further, some provisions of the text admit of a fair range of meaning. But that does not mean that we have an “unwritten constitution.” It means, rather more simply, that the written Constitution does not answer everything and therefore leaves some matters—indeed, a great deal—to the democratic choices made by representative government in accordance with the structures of government created by that document. It means that some matters are left to be worked out by government and politics, and that different choices might legitimately be made at different times. That is hardly to say that the Constitution is “unwritten” or (just as incoherently) that its meaning “changes” or “evolves.” It is simply to say that the written Constitution does not address everything under the sun and that, where the Constitution does not specify a rule, the Constitution does not specify a rule. Policies are then left for the people to decide through the process of self-government. That, too, is a consequence of written constitutionalism. Where the Constitution says nothing, it says nothing—and there is nothing more to be said about what the Constitution says, at least not by courts purporting to apply the Constitution as a rule of law invalidating a political choice made by legislative or executive officials.

Where the Constitution’s answer to some issue is less than clear, or where its meaning is abstract and general, the relevant constitutional decisionmakers are left with a range of interpretive and policy choices. The only question that remains is who gets to make those choices. That in itself is a constitutional question to be answered from the Constitution’s text and structure and the fair inferences that may be derived from them. There may be linguistic indeterminacy; there may be matters left open or incomplete; there may be genuine interpretive choices to be made; there may be a legitimate range of disagreement about what does or does not follow logically from the words of the text; and there may be difficult applications.

But there is no such thing as “America’s Unwritten Constitution.” It is a misnomer, a hoax, a charade, a deception, a farce, a snare, a delusion, a lawyer’s trick, a pickpocket’s sleight of hand, a canard, to say that there is.

TABLE OF CONTENTS