The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar's Unwritten Constitution?
57 Pages Posted: 21 Mar 2014 Last revised: 16 Sep 2014
Date Written: 2014
Professor Akhil Amar has it all wrong this time: The thesis of America’s Unwritten Constitution – that America has an “unwritten constitution” that shadows, supplements, and sometimes even supplants the written Constitution – is fundamentally flawed. America has no “unwritten constitution.” Ours is a system of exclusive, written constitutionalism. There are only sound – or unsound – interpretations of and inferences from the meaning of an authoritative written text. There may be ambiguities in that text. Some provisions may bear a range of meanings that admit of interpretive choices. There may be uncertainties as to the correct answer to certain constitutional questions. There may be room for legitimate interpretive disagreements. But none of these things in any way warrants the extravagant conclusion that there is such a thing as “America’s Unwritten Constitution.” Some of Amar’s supposed proof-illustrations do not support the claim of unwritten constitutionalism at all, but are better recast as instances of sophisticated textual interpretation or straightforward textual inference. Other of Amar’s conclusions do indeed depend upon invention or extrapolation of an unwritten constitution, but these conclusions are simply unsound – and some of them rather outrageously so. They do not support unwritten constitutionalism but rather tend to expose and refute it as fundamentally unfaithful to the written constitution and capable of yielding almost any result the unwritten constitution’s interpreter desires.
Keywords: constitutional law, Constitution, constitutional interpretation, unwritten constitution, textualism
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