Constitutional Law: A Language of Expertise?

Abstract

In recent years, the community of experts in constitutional law has partly lost its ability to exclude arguments from the constitutional discourse on the basis that they defy the disciplinary rules of constitutional expertise. The most vivid recent demonstration of this development is the transformation of the “broccoli argument” from a “crazy” claim in the eyes of almost all expert speakers of the constitutional language just a few years ago to the law of the land in the Health Care case. By comparing Christopher G. Tiedeman’s 1890 book, The Unwritten Constitution of the United States, to Akhil Reed Amar’s 2012 book, America’s Unwritten Constitution, I expose a shift in the understanding of constitutional law in the US. Rather than a language of expertise in which certain arguments are excluded since they defy the criteria of the discipline, constitutional law is now understood as more similar to a natural language in which there is no expert authority that has control over the language's borders. By comparing the two books, I juxtapose these two ways of understanding constitutional discourse as well as examine Amar’s attempt to confront the looming threat stemming from this shift.

Keywords: expertise v. public opinion, reason v. will, the Unwritten Constitution, Tiedeman, Amar, originalism, living constitutionalism, New Haven School of Constitutional Thought