Review of “America’s Constitution” by Akhil Amar

You can find the book here.

In the book, Professor Amar follows the text of the Constitution and explains what the specific words have come to mean. That’s really it – nothing more, nothing less. Sections begin with a sentence or a few sentences of the Constitution and Professor Amar explains what those particular now mean according to consensus legal scholarship. If I was a lawyer I would probably compliment the professor on his marvelous scholarship.

The book was interesting and worth reading, but I think it falls apart in the end because something shifted in the way that reform movements in the US impacted the Constitution.

If you follow the text of the Constitution precisely, you find that doing so is a pretty cool way to see how various reform movements impacted the document. For example, the slavery amendments solidify the North’s victory in the Civil War and the Progressive amendments make the aims of the Progressive Movement clear. Unfortunately at that point, the rules of the game seem to change. The rest of the amendments deal with picayune stuff – some voting stuff and succession, which is really boring when compared to the earlier amendments. Therefore post-Progressive Era reform movements no longer amended the Constitution when they made major shifts in US Constitutional Law.

For example, the Warren Court marks a shift in Constitutional interpretation. But there are no corresponding amendments to for that Court to point to in explaining its shift. Post-Civil War justices that wanted to shift Constitutional interpretation could cite the 14th Amendment for example. Perhaps their bending and twisting of that Amendment got ridiculous at times, but at least they had a visible shift in the text of the Constitution to cite. The Warren Court had no such corollary. (I don’t mean this to criticize the Warren Court, I’m using the example only to highlight a change in the way that reformers in the US impacted the Constitution).

This shift, which seems to occur during FDR’s Presidency, is particularly interesting in light of the obvious fact that the USG operates very differently now than it did pre-FDR. For some reason, reform movements after 1933 stopped amending the Constitution. Again, it’s arguable that the post-FDR has been the biggest change in the way the government operates in the history of the USG, and yet there are no changes in the actual text of the Constitution.

The idea then of analyzing the text of the Constitution would seem to be absurd. Once it’s possible to radically alter the Constitution without changing the words of the document, the words of the document are meaningless.

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4 Responses to Review of “America’s Constitution” by Akhil Amar

  1. Handle says:

    The Moldbug once wrote

    It would be a fascinating exercise to actually write down what the Constitution would say if it actually described the structure of the US government today.

    (Perhaps some law student should try it. Because this disparity between the written law and the judicially constructed reality certainly does no service to anyone, and it strikes me as much more straightforward to recognize the latter than to return to the former. If nothing else, formalization of the present reality is an excellent starting point for any kind of reform.)

    In fact, most law students do end up with something like this after their Constitutional-law-dominated classes, which is about half of law school these days. Amar’s work is really just a digest of his larger Con-Law textbooks, but it probably hasn’t focused quite enough on the timeline of effective amendment through interpretation.

    The only relevant question is this, “Can the Supreme Court ever violate Our Constitution?”

    If you say “no”, then they are untrumpable dictators. If you say “yes”, then what? Consequential Amendments have been impossible for 80 years. FDR, at the very height of his cult-of-personality-level popularity and political dominance, threatened to start a movement to amend the constitution after the NRA and other New Deal initiatives were struck down, and in the end he couldn’t do it, so he had to threaten the judiciary with the court-packing plan.

    We supposedly live in a system of checks and balances, but what is the check on an unconstitutional supreme court? In Canada, they can ignore their Supreme Court’s “unconstitutional” ruling for 5-years on a simple majority vote of their parliament, but our systems contains no such check. It’s a design failure – pure and simple.

  2. dearieme says:

    The New Constitution of the United States:

    Do as you’re bloody well told.

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