The University Bookman


Summer 2014

The Ever-Living Progressive Constitution—From Questionable Doctrine to Article of Faith

book cover imageAmerica’s Unwritten Constitution: The Precedents and Principles We Live By
By Akhil Reed Amar.
Basic Books, 2012.
Hardcover, 640 pages, $30.

Bruce P. Frohnen

Yale Law School’s Akhil Reed Amar is a very intelligent man. He also is a man committed to a particular ideology of the American Constitution and to using that Constitution to reshape public and private life in the United States. Being intelligent, Amar is aware of the strengths and weaknesses of the doctrine he supports, and also the strengths and weaknesses of the conservative critique of that doctrine and its consequences. His America’s Unwritten Constitution is an attempt to entrench his vision and marginalize its opposition through reinterpretation of constitutionalism and the political culture undergirding our particular, American Constitution.

Amar’s ideology, like that of most academics, is Progressivism. He is committed to “progress,” by which is meant ever-increasing equality of material well-being and federal court protection of individual autonomy. Not content to espouse such policies on their own terms, however, Amar presents them as essential to “the trajectory of the American constitutional project over the past two hundred years”—a trajectory, discerned by scholars such as Amar, which determines what policies and constitutional interpretations are to be deemed legitimate and, as important, deeming illegitimate any concerted opposition to approved policies and interpretations.

The strength of Amar’s ideology is that it promises people all kinds of things they want and is in keeping with the egalitarian and individualistic temper of our age. Americans have come to believe that they have an absolute right to be treated equally, regardless of their particular characteristics, abilities, or even actions, and that they deserve to have the government guarantee us this treatment and take care of their basic needs. The central weakness of this doctrine is that it is in direct conflict with the normative understandings of the framers of the American Constitution, and with the language, logic, and coherent functioning of that Constitution.

Not surprisingly, the strengths and weaknesses of Progressivism’s critics, dubbed “originalists” or “textualists,” mirror those of Progressivism. Their strengths stem from the document itself; that document’s plain words, its structure, and the clear understandings of its framers all point toward a limited government of enumerated powers designed to represent and defend the United States in the wider world and to carry out limited, particular tasks primarily aimed at mediating among more primary social and political groups including states and other more local institutions. Originalists’ overriding weakness, of course, is that, being partisans of limited government, civil society, and the practice of ordered liberty, they are liable to being portrayed as bigoted, uncaring, and hidebound because they deny that the federal government can or should solve our social ills for us.

For more than a century, now, Progressives have sought to overcome the central weakness of their ideology—its lack of constitutional legitimacy—through development of a doctrine dubbed “the living Constitution.” The logic is simple, if a bit odd and rooted in some rather dubious assumptions. According to Progressives, we have been moving “forward” as a people, becoming less bound to ignorant traditions and unjust social, political, and racial biases, rendering us more tolerant, open, and egalitarian in our views of what is just for society. Thus, we have come to demand a more active government that will eliminate discrimination and guarantee living standards and individual rights. Unfortunately, on this view, our Constitution was written a long time ago by rich white males who sought to perpetuate the privileges of themselves and their class, race, and gender. Thus, we must “reinterpret” the Constitution in accordance with our current, more “advanced” values and so improve that Constitution and our society.

Former Supreme Court Justice Thurgood Marshall provided a refreshingly honest statement of this position in declining to celebrate our Constitution’s bicentennial, stating that he did not “find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound.” Indeed, “the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today.” The Constitution itself, according to Marshall, did not “survive” the Civil War, being replaced by the Fourteenth Amendment, which on this view decrees substantive due process and equal protection (rights to the same things, not just procedural safeguards) for all citizens, including African Americans. And even this Amendment became what it is today only through social action and the formulation of “new constitutional principles.”

The problem with Marshall’s plain speaking is that, while it has the virtue of honesty, it does not sell well outside the faculty club. Marshall’s civil rights bona fides and the general success of Progressivism in academia and the media notwithstanding, few people seeking to influence public debates since the early 1970’s, let alone secure a seat on the Supreme Court, would be well served by clear references to the Constitution’s framers as racist, sexist, homophobic rich guys, to those men’s handiwork as self-interested manipulations, or to federal judges as supremely wise and fair beings capable of rearranging law and society to achieve maximum existential justice. That the charges are largely untrue, that today’s “heroes” have hardly brought us to any promised land, and that the people retain an almost instinctual attachment to the Constitution makes the open, radical critique very hard to sell.

Amar does not make Marshall’s public relations error. Instead, he works assiduously to tie his programmatic goals into public and elite opinion so as to marginalize those who would oppose further transformation. Still, Amar essentially agrees with Marshall’s critique. As argued in this book and elsewhere, he sees the Fourteenth Amendment as utterly transformative of our public law and life. In making his case, here, Amar engages in an intellectually problematic, if programmatically convenient, whipsaw motion. He asserts that “only cranks” would question the legitimacy of the Fourteenth Amendment because to do so would be to question the legitimacy of Barack Obama’s election to the Presidency, along with even the most basic and obviously just anti-discrimination policies. Yet, at the same time, he paints that Amendment’s ratification in stark, revolutionary terms steeped in force and threats of violence; here he references the presence of Union troops in southern states and Congress’ refusal to return voting rights and membership in the Union to these states until and unless they voted ratification. Amar then capitalizes on this revolutionary reading of ratification to assert a “new unwritten principle” arising, not from the text, but from the character of its ratification. The new principle: “the federal government would properly enjoy sweeping authority to hold state governments to the highest contemporary standards of democratic inclusiveness.”

In this way Amar presents his readers with a stark choice: either side with racist Confederates or accept an interpretation of the Fourteenth Amendment that grants the federal government essentially absolute power to nationalize all substantial questions regarding issues of equality—not just of race, but of sex and sexual orientation, among other potential issues. In setting forth this false dichotomy, Amar rejects Americans’ long history of emphasizing continuity in their history so as to maintain the legitimacy of our government, the rule of law, and justice understood as vindication of the reasonable expectations of the people. He chooses instead to root his claims for today’s policies in force and assertions of abstract justice.

Yet, as Orestes Brownson, himself a Union partisan, argued at the time of the Civil War, no government can be founded—or re-founded—on revolutionary principles, for government requires order. The framers of our Constitution acted on their interpretation, not of revolutionary principles, but of the British constitutional tradition violated by the British themselves. Likewise, opponents of secession acted on principles of order, rejecting the claimed right of states to undo and destroy the work of the framers. Thus, our forefathers were able to establish and re-establish ordered liberty under constitutional government as their more radical counterparts in Revolutionary France were not.

Amar also pays no attention to the vast literature, most thoroughly set out by Raoul Berger in his classic Government by Judiciary, regarding the nature and intent of the Fourteenth Amendment. That Amendment was a limited grant of power, predominantly to Congress rather than the courts, providing procedural protections aimed specifically at helping freed slaves achieve equality before the law, most importantly through access to the courts. Of course, such access was denied through unlawful violence, political gamesmanship, and judicial decisions ignoring the text and historical context of the Amendment.

Such contempt for constitutional meaning is sadly common, and certainly not ameliorated by Amar’s work, here. Throughout this book Amar belittles his textualist opponents as “hardcore” extremists engaged in an “atavistic reading” of a document he sees as defined by surrounding and subsequent events. Of course, not even “hardcore” textualists claim the Constitution can be understood solely on the basis of its text. Changes in word definition and usage, as well as technology and broader social and political customs necessitate recurrence to etymology, analogy, and history. Belittling is useful to Amar, however, because he seeks to establish current elite opinion as unquestioned truth, and such a task requires delegitimizing focus on the text.

There is an irony latent in Amar’s project. He seeks to justify a radical reinterpretation of the Constitution according to which, for example, “if enough people believe in a given right and view it as fundamental, then that right is for these very reasons a right of the people” even if wrongly declared by judges. That is, rights themselves are whatever people (which people, measured how, is left unclear, though the courts clearly play the dominant, declarative role) and so should be read into the Constitution. At the same time, however, his book, titled America’s Unwritten Constitution after all, takes its key term, though not its logic, from a deeply conservative understanding of constitutionalism as rooted in the customs of the people. The term “unwritten constitution” was used most powerfully by Brownson, who argued that

Constitutions are generated, not made, and antecedent to all written instruments, or constitutions of the government.… The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government.

The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state. It is Providential, not made by the nation, but born with it. The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted.

Perhaps the most direct expression of Brownson’s truth is set down in the Mayflower Compact. By this act Puritans embarking on life in America chose to

solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience.

The Puritans constituted themselves as a people and agreed to uphold the laws of their community. They formalized the unwritten constitution of their faith, traditions, and way of life as the basis for their ensuing acts of self-government.

Brownson recognized that the unwritten constitution of a people is primary in that it constitutes the customs (e.g. a common culture and the common law) necessary to make a written constitution work, and because we must look to its customs and practices to understand the meanings and purposes of the written constitution’s text. For Amar, on the other hand, the “unwritten constitution” is a separate, amorphous entity that can be used to utterly transform the written constitution according to the values and desires of powerful contemporary elites in charge of propagating meanings and even civil religious doctrine.

Brownson points to the character of the people, and its traditions in particular, in discerning the operative meaning of the constitutional text. But this is a “backward looking” understanding of text and meaning; it rests on the assumption that we are and should be bound by the decisions, understandings, and intentions of those who gave us the Constitution as we interpret and apply it to contemporary problems. Such would seem essential to the logic of the rule of law. Justice, indeed law itself, requires that people know the rules that are to guide their actions—and that may in fact be used as grounds for punishing them for their actions. This requires that the laws be settled and known, changing only through the procedures laid out in the law/Constitution so that we all may know the new law as well as the old.

Such old-fashioned views are inimical to Progressivism. They tie us to “outdated” rules and stand in the way of swift action aimed at propelling us into the grand egalitarian future promised by, for, and to Progressives. Thus, in order to speak of an “unwritten” constitution, Amar must reinterpret custom and tradition in a Progressive light. He would have us look to conflicts, political and social movements, and especially elite opinion rooted, not in the text or the drafting of that text, but in revolutionary actions and trends or “trajectories” pieced together sometimes very long after ratification.

Amar’s “unwritten” constitution consists of implicit meanings to be divined through a higher form of literary criticism practiced by lawyers. It includes the “enacted” constitution, by which he means his particular reading of the revolutionary tenor and conduct of the Constitution’s drafting and ratification and a highly abstract reinterpretation of common practices at the time of founding. For example, in his hands the right to be secure in one’s home becomes “the right to enjoy consensual conjugal happiness in one’s home”—a distorted abstraction in direct opposition to the overtly religious understandings, rooted in centuries-old common law, of the time.

Amar’s unwritten constitution also includes legal precedents handed down long after ratification, provided the results comport with his own political preferences and elite opinion concerning which judges are and are not “right” in their policy preferences, though not their actual legal reasoning. Amar then goes on to more directly import various political goals into his unwritten constitution by referencing feminist, institutional, partisan, conscientious, and of course “unfinished” constitutions he would use to reshape our constitutional text and tradition.

The distortions endemic to this method should not be minimized. From the beginning, in his introduction, Amar presents as axiomatic principles that conflict with our constitutional tradition and with the plain meaning of the Constitution itself. For example, “all voters must count equally” is an axiom Amar asserts “forms the bedrock of the American system of government.” Such an axiom would render illegitimate the United States Senate, as Amar notes in an aside. It also would render illegitimate traditional, geographically and historically rooted norms of apportionment operative for most of our history, and, stated thus abstractly, would empower courts to determine who “counts” how much according to racial, ethnic, economic, and all kinds of other policy criteria. Such is obvious enough that Amar clearly must recognize it—indeed, modern application of this a-historical principle already has put control over our political process in the hands of ideological judges intent on breaking down natural and historical voter connections.

Equally tendentious is Amar’s attempt to thrust aside traditional methods of constitutional interpretation even where his own form of constitutional literary criticism is both more strained and less necessary to prevent absurdity. He uses the example of the Constitution’s seeming allowance for a Vice President to preside over his own impeachment trial to attack textualism as incoherent and powerless. Yet, where his semantic gyrations eventually come out right (such a role for the Vice President would be unjust and averse to our understanding of constitutional government), a mere glance at the common law maxim against judging in one’s own cause would provide the same answer while (its fatal flaw, for Amar) preserving adherence to accepted, historical norms. Amar’s methodological goal is clear: the “unwritten constitution” is to be seen as the combination of anti-textual interpretive techniques and policies growing up subsequent to ratification, which must be read “in conversation with” the actual, written constitution, so as to keep the text up-to-date. Again, we are back at the old “living constitution,” only with a patina of scholarly legitimacy.

Amar puts particular emphasis on inverted statements and distorted abstractions such as “the right to enjoy consensual conjugal happiness in one’s home,” the “right not to be punished in a cruel manner that violates modern national norms,” the right of the people to hear free speech and their right to “be” sovereign. In combination, these tendentious readings of language and history are used to present a new constitution unsurprisingly supportive of Progressive policies at odds with the text and original understanding of the written Constitution. The actual fundamental elements of our Constitution—its critical structure embodied in the separation of powers—Amar reduces to what is, for “living” constitutionalists, the largely meaningless justification that “we’ve always done things this way.” Such traditional justifications clearly have little weight given Amar’s own determination to set aside customary formulations in favor of malleable and changing definitions of key terms like trial, courts, law, equity, judges and judicial power.

Not surprisingly, Amar asserts that Chief Justice Earl Warren, whose anti-textualism resulted in numerous decisions Amar himself recognizes were simply wrong in legal terms, was, with John Marshall, our greatest Justice. He even adds an insult to the constitutional injury of this declaration by claiming his judgment is one of acclamation—the view of everyone who is not a “crank,” at least at the Yale faculty club. And why was Warren so great? Because his decisions, while contrary to the Constitution, were “correct” in establishing new “constitutional” rights Amar would find through destructive abstraction of traditional rights. The danger of this position should be clear to Amar, but is not. Warren rested his assertions of judicial power on anti-textual, unjust precedents, most prominently the decision in Dredd Scott v. Sandford declaring African Americans incapable of being citizens and Ableman v. Booth upholding the most draconian misapplications of the Fugitive Slave laws. Yet it seems not to occur to him that the power he finds so convenient for his policy preferences today might be used to support massive iniquities tomorrow, just as it was in the past.

Most important, however, is Amar’s “symbolic” constitution, for it is this set of civil religious texts and myths he would use to entrench Progressivism as the raison d’etre of the actual, written Constitution, in effect replacing legal text with ideological goals. Amar begins by defining as “America’s symbolic constitution” a set of texts with which one would hesitate to argue. Such a “symbolic constitution,” he asserts, “surely includes (but is not limited to) the Declaration of Independence, Publius’s The Federalist, the Northwest Ordinance, Lincoln’s Gettysburg Address, the Warren Court’s opinion in Brown v. Board, and Dr. King’s ‘I Have a Dream’ speech.” Of course, with such phrasing Amar leaves room to agree to (without emphasizing) other important texts while explicitly tying his own list into a narrative of progressive marching toward ever-greater equality.

Must one question the importance and brilliance of King’s speech and the importance of his call to judge one another by the content of our character in order to oppose the “trajectory” of progress Amar espouses? Must one advocate a return to the evils of segregation in order to question the “greatness” of Earl Warren? Of course not. But Amar makes it appear so by elevating Warren to iconic status, by claiming that these specific texts have been “ratified” in some sense, and by asserting that they are to be used as the basis for a kind of constitutional literary criticism, altering the public understanding of our tradition and Constitution.

It is in keeping with Amar’s determination to make dissent from Progressive ideology the realm only of “cranks” that he would stack the deck of symbolism in the way that he does. His opponents are to seek inclusion of supposedly more marginal documents like the Mayflower Compact (an odd notion itself, given the prominent place he accords the relatively obscure Northwest Ordinance). Amar can simply reply “sure, that too, although let’s not forget that the Puritans were racist, sexist homophobes.” Or we are left to attempt dissection of Warren’s constitutional reasoning in Brown v. Board—to which Amar can simply reply “yes, he got some details of constitutional interpretation wrong, but so what? are you claiming segregation should not have been eliminated?”

Indeed, to take the point further and point out, with such prominent men of the left as Gerald Rosenberg, that such court decisions do not, in fact bring about positive social change, often impeding the real work that must be done through political organization and social movements, would be merely to feed into the claim that “unwritten” abstractions should trump constitutional language. The actual fact, that the Constitution is a procedural document intended to allow political change once political and social consensus is reached, is one Amar and Progressives in general have rejected as promoting mere “gridlock.” And gridlock is merely a term Progressives use to reject without argument the necessity of actually winning the hearts and minds of the people for significant reforms. For Progressives, it is better to pursue change through judicial fiat, then tell any dissenters among the people that the issue already is decided—for everyone who is not a “crank.”

Amar’s “symbolic constitution” is the most important element of his program for constitutional transformation because it is crucial to changing the hearts and minds of the people, making them believe that opposition to judicial usurpation is, by its very nature, support for bigotry. His canon of texts presents teachers and students with a civil religious story of the secular pilgrim’s progress, enshrined in carefully chosen and “imaginatively” interpreted documents, to be used to reshape the actual unwritten constitution of the people. The lived unwritten constitution consists of institutions, beliefs, and practices too steeped in history, religion, and attachment to the virtues of ordered liberty and local self-government to suit Progressives, just as the written Constitution is too protective of procedural due process and social consensus to suit their ends. Once those who disagree with the values of contemporary elites are sufficiently marginalized as cranks, the work of reforming can continue without such unpleasant opposition.

Textualists, originalists, and people of plain common sense can never fully “lose” the battle against such an ideological program. For, as an ideology, that program is an attempt to impose a false reality on our lives. Americans do not, and have never, organized themselves principally for the vindication of abstractions. Our Constitution quite evidently was designed for a virtuous people seeking peace and self-government in accordance with their traditional norms. But it is fair to ask, at this point, whether over the six decades since Earl Warren commenced his hubristic crusade to change America on his own, illegitimate authority, our Constitution has ceased to “live” even in the most basic sense of having political and legal relevance. The evils addressed by Warren (and, more effectively, our Congress) were very real, indeed cried out for reform. But the anti-textual tradition Warren helped institutionalize in the legal profession, celebrated and enshrined by Amar, leaves us without a stable rule of law, without any clear check on the power of judges (and, increasingly, Presidents) to rule by decree, and without a public culture capable of resisting persistent calls to empower the federal government to impose every next new thing in the name of equality and “the trajectory of the American Constitutional project.”

In the end, those who value the fundamental principles and customs shaping our constitutional tradition may have to fall back on the customs and maxims so thoroughly ignored by Amar. Such seems essential to rebuilding the rule of law and in making ordered liberty possible again. Such seems possible only if the people have not been so well indoctrinated into Amar’s canon that they forget their genuine tradition and principles. 

Bruce Frohnen is a Professor of Law at Ohio Northern University School of Law.

Posted: August 10, 2014

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