America's Unwritten Constitution: The Precedents and Principles We Live By (102 page)
Read America's Unwritten Constitution: The Precedents and Principles We Live By Online
Authors: Akhil Reed Amar
20
Although Article V addresses the general topic of constitutional amendment, its text does not explicitly speak of the “responsibility” of each generation to ponder amendments with specific reference to the needs and interests of “posterity.” Nor does Article V explicitly address various ways of adding to or subtracting from America’s unwritten Constitution as distinct from modifying the terse text itself.
1
See Victoria F. Nourse,
In Reckless Hands:
Skinner v. Oklahoma
and the Near Triumph of American Eugenics
(2008).
BEYOND GOD AND COUNTRY,
my family and Yale University have made me who I am. Regarding my family, the most important things go without saying. As for Yale, many years ago
alma mater
took an unformed youth and changed his life. Homes are important (see
Chapter 3
), and Yale has been my home for more than three decades. I still can’t believe I get paid to work here.
Two former deans of Yale Law School straddle the family/Yale divide, for they have become de facto kin. Guido Calabresi, who gave me my first law-teaching job and so much more, has long been my Fairy Godparent; and Harold Koh, who gave me my current chair—a chair that was rightfully his to claim—has been my Godbrother (if that is a word) since the day we met. Other Yale colleagues who must be mentioned here are my occasional coauthors—Ian Ayres, Jack Balkin, Jed Rubenfeld, and Reva Siegel—and my wise mentors, Owen Fiss and John Langbein.
And then there is Yale’s incomparable Bruce Ackerman, whose influence on me has been so wide and deep that I feel obliged to distinguish my views from his at every anxious turn.
Outside Yale’s Ivy-covered walls, my sometime coauthor and all-time friend Sandy Levinson has long been an Ackerman-like inspiration and provocation. Two other role models merit extra-special mention. Laurence Tribe’s profound insights about constitutional law—particularly the teachings of his recent book
The Invisible Constitution
—were never far from my mind as I composed the preceding chapters. Ditto for Philip Bobbitt’s brilliant meditations on the nature of constitutional interpretation, especially in his books
Constitutional Fate
and
Constitutional Interpretation
. Bobbitt’s thinking about the constitutional
ethos
of the American people is a particularly rich vein of thought. Several of this book’s chapters aim to profile distinct species of the genus that Bobbitt labels “ethical” argument.
Among the recently departed, Charles Black and John Hart Ely first opened my eyes to the importance of holistic as distinct from clause-bound constitutional interpretation; and David Currie’s detailed analyses of the Constitution in Congress helped ground Chapters 8 and 9.
Many friends generously provided commentary on early drafts. Special thanks to Sean Barney, Will Baude, Jon Blue, Jonathan Bressler, Rebecca Brown, Aaron-Andrew Bruhl, Steve Calabresi, Josh Chafetz, Travis Crum, Greg Dubinsky, Gus Eyler, Barry Friedman, Josh Geltzer, Heather Gerken, Matthew Hegreness, Neal Katyal, Jaynie Lilley, Fred Liu, Pauline Maier, Nick Makarov, John Manning, Jerry Mashaw, David Mayhew, Chris Michel,
Trevor Morrison, Victoria Nourse, Nick Parrillo, Matthew Pearl, Saikrishna Prakash, Aniko Richheimer, Kermit Roosevelt, Tom Schmidt, Kevin Stack, Kathy Streckfus, Richard Tao, Aaron Tidman, Adrian Vermeule, and Lindsey Ohlsson Worth. Thanks also to the editors of the
Yale Law Journal
for their help with an early version of
Chapter 3
.
In the publishing world, my literary agents, Glen Hartley and Lynn Chu, went beyond the call of duty. I am lucky to have them as friends and counselors. I am also grateful to the legendary Bob Loomis, now retired, for his expert editorial advice early on. My current editor, Lara Heimert, is quite simply the best in the business. She has redeemed my faith in the future of books.
THE ENUMERATION IN THIS BOOK
of certain thanks should not be construed to deny or disparage other thanks owed to various persons and institutions. Some of my biggest debts remain unwritten. I hope there will be other occasions for me to acknowledge all who have helped me. For now, I simply say (as I have said before), you know who you are and so do I. Bless you.
Chapter 1
, page 1:
The Impeachment Trial of Andrew Johnson
(1868). Sketch by Theodore R. Davis. Originally published in
Harper’s Weekly
. Courtesy of the Library of Congress.
Chapter 2
, page 49:
Don’t Wait for the Draft
(1917). Courtesy of the Library of Congress.
Chapter 3
, page 95:
Home Sweet Home
(1877). Lithograph by G. F. Gilman. Courtesy of the Library of Congress.
Chapter 4
, page 139:
Earl Warren
(date unknown). Courtesy of the Library of Congress.
Chapter 5
, page 201:
Harry Blackmun and William Rehnquist
(1976). Color negatives by Robert S. Oakes. Courtesy of the Library of Congress.
Chapter 6
, page 243:
Abraham Lincoln
(November 8, 1863). Photo by Alexander Gardner. Courtesy of the Library of Congress.
Chapter 7
, page 277: “
Women Are Too Sentimental for Jury Duty”
(1915). Lithograph by Chamberlain. Originally published in
Puck
. Courtesy of the Library of Congress.
Chapter 8
, page 307:
The Inauguration of Washington
(April 30, 1789, as depicted in 1876). Lithograph by Currier & Ives. Courtesy of the Library of Congress.
Chapter 9
, page 333:
Potter Stewart
(1976). Color negative by Robert S. Oakes. Courtesy of the Library of Congress.
Chapter 10
, page 389:
The Declaration Committee (1776
, as depicted in 1876). Lithograph by Currier & Ives. Courtesy of the Library of Congress.
Chapter 11
, page 417:
William Brennan and Thurgood Marshall
(1976). Color negatives by Robert S. Oakes. Courtesy of the Library of Congress.
Chapter 12
, page 449:
March for Women’s Liberation, Washington, D.C., August 26, 1970
. Photo by Warren K. Leffler. Courtesy of the Library of Congress and U.S. News & World Report, Inc.
Page numbers in
italics
refer to illustrations.
Abington School District v. Schempp
,
153
,
154
,
195
,
218–219
,
221
controversy over,
170–172
Abolition Amendment,
see
slavery
,
Thirteenth Amendment
abortion rights,
122–123
,
201
n
,
235
,
291
“activist” judges,
106
Adams, John,
16
,
44
,
53
,
156
,
290–291
,
304
,
404
and Thomas Jefferson,
389
,
391–393
,
396
Adams, Samuel,
52
n
Adam’s Rib
,
297
Adventures of Huckleberry Finn
,
The
,
246–247
Agnew, Spiro T.,
462
Aitkens v. Virginia
,
134
Albright, Madeleine,
455
Alien and Sedition Acts (1798),
53
,
154
,
155
,
167–169
,
216–217
,
286
,
340
,
395
Allen, Florence Ellinwood,
291
American Bar Association,
439
American Revolution,
31
,
315
,
328
,
394
,
434–435
,
454
,
479
America’s Constitution: A Biography
,
68
n
Ames, Fisher,
52
Anderson v. Dunn
,
339
Anglo-American law,
11
Anthony, Henry B.,
3
Anti-Federalists,
34
,
52
,
311
,
352
,
401
and free expression,
54
,
124–125
and majority rule,
58–62
Antietam,
91
Apodaca v. Oregon
,
442
n
apportionment, malapportionment,
88
,
184
,
187–189
,
192–194
,
214
,
224
,
229–230
,
261
n
,
287
,
399
,
406
,
413
,
469–471
,
473
,
476
Arab League,
484
argument from enactment,
see
enactment arguments
Article I,
12
,
46
,
79
,
91–94
,
143
,
170
,
203
,
310
,
311
n
,
338
,
347
,
349–350
,
353
,
355
,
358
,
404
impeachment provisions in,
5
,
15
section 4,
412–413
section 5,
6
,
81
,
336
,
345
,
359
,
361
,
363
,
366
,
368
section 6,
35–36
,
38–39
,
45
,
220
,
378
,
380
section 10,
30
Article II,
12
,
39
,
41
,
45
,
76
,
79
,
93
,
203
,
289
,
310–311
,
313–315
,
320–324
,
332
,
343
,
348–350
,
382–386
,
391
,
420–421
,
457
section 1,
404
Article III,
13
,
69
,
89
,
230–231
,
284
,
339
,
356
,
372
as Judicial Article,
101
,
107
,
160
,
206
,
208–209
,
232
,
234
,
238
,
240
,
284
,
310–311
,
467
and self-referential clauses,
206–209
Article IV,
143
,
184
,
186–187
,
346
,
421
,
436
section 4,
81–82
Article V,
136
,
203
,
283
,
296
,
304
,
338
,
401
,
458
,
469–470
Article VI,
73
,
74–75
,
77
,
78
,
162
,
260
,
360
,
421
and self-referential clauses,
204–207
Article VII,
56–58
,
62
,
63
,
66
,
70–73
,
309
,
360
,
363
Articles of Confederation,
26
,
35
,
57
,
65
,
75
,
76
,
205–206
,
257–258
,
283
,
484
Atlas Shrugged
,
247
attorney general,
45
,
325
,
341
,
372
,
375–376
,
379
,
424
,
471
Australia,
464
Baker v. Carr
,
192–193
,
195
,
197
,
224–225
,
229–230