America's Unwritten Constitution: The Precedents and Principles We Live By

643 Pages·2012·3.6 MB·English

by  Akhil Reed Amar

Law / History
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An authoritative work by one of America’s preeminent
AKHIL REED A MAR AMAR
legal scholars, America’s Unwritten Constitution presents a bold
new vision of the American constitutional system, showing how Despite its venerated place atop American law
the complementary relationship between the Constitution’s “Akhil Amar’s splendid new book, America’s Unwritten Constitution, combines an unmatched eye for detail with a and politics, our written Constitution does not
A MERICA 'S
written and unwritten components is one of America’s greatest unique capacity for overarching perspective and masterfully elegant synthesis. It is a wonderfully readable companion enumerate all of the rules and rights, principles
and most enduring strengths. to Amar’s unparalleled earlier volume, America’s Constitution: A Biography. Together, these two works convey as little else and procedures that actually govern modern America. The
can the majesty and sweep of America’s constitutional project.” —LAURENCE H. TRIBE, document makes no explicit mention of cherished concepts
Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School TThhee PPrreecceeddeennttss
like the separation of powers and the rule of law. On some
issues, the plain meaning of the text misleads. For example,
“Akhil Amar brings the patience of a historian, the ardor of a lover, and (yes, sometimes) the panache of a conjurer to
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the text seems to say that the vice president presides over his
America’s unwritten Constitution. If you want to argue with him, you will have to summon all these qualities yourself.
This is a serious and provocative book.” —RICHARD BROOKHISER, author of James Madison O N UNWRITTEN own impeachment trial—but surely this cannot be right. As
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esteemed legal scholar Akhil Reed Amar explains in America’s
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“This book is brilliant, creative, ambitious, comprehensive, imaginative, and thought-provoking. It is a must-read for
Unwritten Constitution, the solution to many constitutional
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piro anyone interested in Constitutional Law.” —STEVEN G. CALABRESI, Class of 1940 Research Professor, S E puzzles lies not solely within the written document, but beyond
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d Sh Northwestern University School of Law; Co-Founder of the Federalist Society T aanndd PPrriinncciipplleess it—in the vast trove of values, precedents, and practices that
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H I complement and complete the terse text.
© “This is an engrossing, epic work of enduring importance—not only a treasure trove for scholars of American law,
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history, and politics, but also an inspiring, empowering guidebook for activists. It compellingly demonstrates how to I In this sequel to America’s Constitution: A Biography, Amar
AKHIL REED AMAR U T I CONSTITUTION
harness the Constitution’s full meaning in order to promote its thrilling vision of liberty and justice for all. No matter takes readers on a tour of our nation’s unwritten Constitution,
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is Sterling Professor of Law and Political Science at Yale what your prior knowledge of this field, and no matter what your ideological perspective, this magnificent book will T showing how America’s foundational document cannot
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enhance your understanding and appreciation of our cherished Constitution. If I had to choose a single work to
University, and periodically serves as a visiting professor at I A be understood in textual isolation. Proper constitutional
recommend to either my constitutional law students or my civil libertarian colleagues, this would be it.” O E WWee LLiivvee BByy 6-1/4 x 9-1/2”
Harvard, Columbia, and Pepperdine Law Schools. Amar is the interpretation depends on a variety of factors, such as the S: 2”
—NADINE STROSSEN, Former President, American Civil Liberties Union; Professor, New York Law School
author of four books, including America’s Constitution, which won N N ' precedents set by early presidents and Congresses; common B: 1-13/16”
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the Silver Gavel Award from the American Bar Association, and “In America’s Unwritten Constitution, Professor Amar adds to his already masterful bibliography what will instantly practices of modern American citizens; venerable judicial BASIC
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The Bill of Rights, which was awarded a Silver Gavel Certificate become a classic examination of constitutional law. As the Constitution itself stood in need of a seminal biography, so decisions; and particularly privileged sources of inspiration and
AKHIL REED
of Merit. A member of the American Academy of Arts and too the vast and varied domain of our Nation’s constitutional law cried out for a guidebook. Professor Amar has now guidance, including the Federalist papers, William Blackstone’s 4/COLOR
+ PMS 8402
Sciences and a Senior Scholar at the National Constitution brilliantly provided both.” —KEN STARR, President of Baylor University; Commentaries on the Laws of England, the Northwest Ordinance metallic
Center, Amar is often cited by the Supreme Court and is a Solicitor General of the United States, 1989-1993; Independent Counsel, 1994-1999 of 1787, Lincoln’s Gettysburg Address, and Martin Luther King, + Crown Gold
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frequent expert witness in Congressional hearings. He lives in Jr.’s “I Have a Dream” speech. These diverse supplements are
$29.99 US / $34.50 CAN FINISH:
Woodbridge, Connecticut with his wife and three children. indispensible instruments for making sense of the written
Gritty Matte
ISBN 978-0-465-02957-0
52999 Author of America’s Constitution: A Biography Constitution. When used correctly, these extra-textual aids
A Member of the Perseus Books Group support and enrich the written document without supplanting it.
Jacket design by Nicole Caputo www.basicbooks.com
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08/12 9 780465 029570
CROWN FOIL
424
The Precedents
and Principles
We Live By
AMERICA’S
UNWRITTEN
CONSTITUTION
Also by Akhil Reed Amar
America’s Constitution
The Bill of Rights
The Constitution and Criminal Procedure
AMERICA’S
UNWRITTEN
CONSTITUTION
The Precedents and Principles
We Live By
AKHIL REED AMAR
A Member of the Perseus Books Group
New York
Copyright © 2012 by Akhil Reed Amar
Published by Basic Books,
A Member of the Perseus Books Group
All rights reserved. Printed in the United States of America. No part
of this book may be reproduced in any manner whatsoever without
written permission except in the case of brief quotations embodied
in critical articles and reviews. For information, address Basic Books,
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Designed by Janet Tingey
Library of Congress Cataloging-in-Publication Data
Amar, Akhil Reed.
America’s unwritten constitution : the precedents and principles we
live by / Akhil Reed Amar.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-465-02957-0
1. Constitutional history—United States. 2. Constitutional law—
Social aspects—United States. I. Title.
KF4541.A875 2012
342.7302’9—dc23
2012012363
10 9 8 7 6 5 4 3 2 1
“For God, for country, and for Yale”
and also—always—for family

CONTENTS
Introduction ix
1. Reading Between the Lines:
America’s Implicit Constitution 1
2. Heeding the Deed: America’s Enacted Constitution 49
3. Hearing the People: America’s Lived Constitution 95
4. Confronting Modern Case Law:
America’s “Warrented” Constitution 139
5. Putting Precedent in Its Place: America’s
Doctrinal Constitution 201
6. Honoring the Icons: America’s Symbolic Constitution 243
7. “Remembering the Ladies”:
America’s Feminist Constitution 277
8. Following Washington’s Lead:
America’s “Georgian” Constitution 307
9. Interpreting Government Practices:
America’s Institutional Constitution 333
10. Joining the Party: America’s Partisan Constitution 389
11. Doing the Right Thing:
America’s Conscientious Constitution 417
12. Envisioning the Future:
America’s Unfinished Constitution 449
Afterword 479
Appendix: America’s Written Constitution 487
Notes 517
Acknowledgments 597
Illustration Credits 599
Index 601