The Constitution Today: Timeless Lessons for the Issues of Our Era

457 Pages·2016·2.56 MB·English

by  Akhil Reed Amar

ALSO BY AKHIL REED AMAR
The Law of the Land
America’s Unwritten Constitution
America’s Constitution: A Biography
The Bill of Rights: Creation and Reconstruction
The Constitution and Criminal Procedure

Copyright © 2016 by Akhil Reed Amar Published by Basic Books,
An imprint of Perseus Books, a division of PBG Publishing, LLC, a subsidiary of Hachette Book Group,
Inc.
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, 250 W. 57th St, 15th floor, New York, NY
10107.
Books published by Basic Books are available at special discounts for bulk purchases in the United States
by corporations, institutions, and other organizations. For more information, please contact the Special
Markets Department at the Perseus Books Group, 2300 Chestnut Street, Suite 200, Philadelphia, PA 19103,
or call [phone], ext. 5000, or e-mail [email protected].
Designed by Trish Wilkinson
Set in 10.5-point Goudy Oldstyle STD
Library of Congress Cataloging-in-Publication Data Names: Amar, Akhil Reed, author.
Title: The constitution today: timeless lessons for the issues of our era / Akhil Reed Amar.
Description: New York: Basic Books, 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2016023102 (print) | LCCN 2016023606 (ebook) | ISBN 9780465096343 (e-book)
Subjects: LCSH: Constitutional law—United States. | BISAC: LAW / Constitutional. | HISTORY
United States General. | POLITICAL SCIENCE Government General. | LAW / Essays.
Classification: LCC KF4550 .A728 2016 (print) | LCC KF4550 (ebook) | DDC 342.73—dc23
LC record available at https://lccn.loc.gov/2016023102
10 9 8 7 6 5 4 3 2 1
For Bob Woodward
journalist and historian, mentor and mensch
Contents
Introduction: The Constitution on Deadline
PART I: MODERN BRANCHES
1. The Presidency: A Return to Dynasty?
2. The Vice Presidency: Nothing, but Maybe Everything
3. The Congress: How to Fix a Broken Branch
4. The Judiciary: Who Judges the Judges?
PART II: CULTURE WARS
5. Criminal Procedure: From O. J. to DNA
6. Citizens Dis-United: Race, Guns, Gays, and More
7. Constitutional Anniversaries: Remembering to Remember
PART III: PRESIDENTIAL DRAMAS
8. Bill Clinton’s Drama: His Partisan Impeachment
9. George W. Bush’s Drama: His Un-Popular Election
10. Barack Obama’s Drama: His Signature Statute
Conclusion: Just, in Time
Acknowledgments
Permissions
Notes
Index
INTRODUCTION
The Constitution on Deadline
ON THE MORNING OF JUNE 28, 2012, the eyes of the world turned to the
United States Supreme Court for what many thought might be the biggest
constitutional ruling of the decade. Would the justices uphold or strike down the
sweeping 2010 health-insurance law known as Obamacare? In particular, would
the Court undermine the statute’s cornerstone clause—the so-called individual
mandate—requiring a wide swath of Americans to procure subsidized health-
insurance policies or else pay substantial tax penalties? And if the Court did
invalidate the signature domestic accomplishment of America’s first black
president, would this epic judicial rebuke doom Barack Obama’s prospects for
reelection in November? Having delivered the presidency on a silver platter to
the Republican candidate in the notorious Bush v. Gore ruling in 2000, would a
bare majority of Republican-appointed justices in effect do this again in 2012—
and in the process erase the biggest consequence of the Democrats’ intervening
sweep in 2008?
Network cameras are not allowed in the decorous courtroom itself. Thus, as
Chief Justice John Roberts began an oral summary of his ruling on behalf of a
closely divided Court, television correspondents outside the courthouse were
furiously speed-reading copies of the chief’s simultaneously released, and quite
lengthy, written opinion. On CNN, which bills itself as “the most trusted name in
news,” a historic headline appeared on-screen at 10:07 Eastern Time:
“BREAKING NEWS: SUPREME CT. KILLS INDIVIDUAL MANDATE.”
Over the next couple of minutes, CNN’s John King breathlessly explained to the
world what this all meant: “The Court striking down that mandate is a dramatic
blow to the policy and to the president, politically. . . . The justices have just
gutted . . . the centerpiece provision of the Obama health-care law. . . . Without a
doubt, . . . the justices’ throwing that out is a direct blow to the president of the
United States, a direct blow to his Democratic party.” As King spoke, the
network posted another headline at 10:09: “INDIVIDUAL MANDATE
STRUCK DOWN: Supreme Court finds measure unconstitutional.”
Meanwhile, Fox News was broadcasting its own headline: “SUPREME
COURT FINDS HEALTH CARE INDIVIDUAL MANDATE
UNCONSTITUTIONAL.” Standing on the courthouse steps at 10:08, with a
copy of the Roberts opinion in her excited hands, correspondent Shannon Bream
minced no words: “The mandate is gone!”
Among the millions of real-time onlookers was President Obama himself,
who was watching the coverage of multiple networks in the outer Oval Office.
Like so many others in that instant, he was getting his information from
broadcast journalists, who were telling him that his proudest legislative
achievement was kaput.
BUT IT WASN’T. The journalists had blundered, badly. In their rush to get it
first, they got it wrong. They hadn’t even read to the end of the Roberts opinion
before they started summarizing it, erroneously, on camera. Haste in those
supercharged seconds was not their only lapse. In the months leading up to that
fateful day, many prominent journalists had failed to understand that
Obamacare’s individual mandate could be constitutionally sustained on either an
interstate-commerce clause theory or a tax-clause theory. Had reporters and
pundits grasped this basic legal fact about the case, they would have realized, as
Roberts began narrating his opinion and they began flipping through it, that the
chief justice’s early pages were addressing only the former theory. No matter
what those pages said, Obamacare could be upheld—as in fact it was upheld that
day, as we all know now—on the latter theory.
The networks’ spectacular goofs that morning remind us of two large truths
about journalism. First, most professional journalists are not experts on
constitutional law. Second and related, almost all journalists, by definition, act
under severe time pressure. They act on deadline.
The very word journalist, from the French jour, captures the immediacy of
the daily news and the oft-fleeting nature of the journalist’s message. The
unrelenting need to attend quickly to whatever the issue du jour might be makes
it hard for the ordinary journalist to acquire genuine mastery of any single
subject requiring long study—whether that subject be American constitutional
law or anything else. At one time, printing presses and delivery trucks dictated
journalism’s tight schedules. Today, there remains the driving desire to get there
first, to scoop the competition, if only by a few minutes or even seconds. This