I recently finished Akhil Amar’s America’s Unwritten Constitution and strongly recommend it to anyone interested in constitutional law. That is not because I agree with all of it. As I get older, I find the most important aspect of a great book is its capacity to enlarge the ideas I can entertain as interesting and plausible rather than to compel my agreement.
America’s Unwritten Constitution sets forth a variety of ways that an interpreter of the Constitution can look beyond the text’s words to interpret and implement it today. Some are ways that are always compatible with originalism. As Mike Rappaport and I do in our own book, Amar shows that context and the methods of interpretation at the time of its enactment are indispensable to understanding the Constitution. Others are also compatible with originalism if properly done, as when Amar looks to the early practices of the republic to clarify meaning or takes account of precedent. Other methods, as I will argue in a follow up post, are less compatible with originalism, but they also describe as matter of fact how the Court has given effect to constitutional law.
The book shows a lifetime of constitutional study on every page. Its tone is a model of what scholarship should be. If Yeats is right that prose is arguing with others and poetry is arguing with oneself much of this is poetry. Different sides of argument are given their due before Amar comes to judgment. And it is wonderfully written.