Akhil Amar is one of those scholars who rarely leaves home without a pocket-size copy of the Constitution secreted about his person (presumably safe from any “unreasonable searches and seizures”). One suspects that in stray moments–waiting for takeoff, in checkout lines at the supermarket–he likes nothing better than to whip out his copy and mull over some obscure clause. And as his newest book makes clear, he finds much there to mull. At nearly 500 pages of text and more than 100 of notes (many substantive), this is a work for the long-distance reader. Indeed, in its very length, America’s Constitution illustrates the inverse relation between the brevity of the document and its potential for voluminous exposition.
At fewer than 8,000 words, ours is a textual lightweight next to most other constitutions, including the turgid “constitutional treaty” of the European Union that French and Dutch voters recently doomed. Midway through its twenty-second decade, the Constitution is also the oldest such national document in continuous existence. American constitutionalism is distinctive in one further respect. In no other country has the practice of constitutional law and the production of constitutional scholarship become so elaborate, refined, disputatious and even cultic. Our obsession with the Constitution–its origins, evolution and especially its interpretation–has no parallel anywhere else in the world.
The literary economy and historical durability of the Constitution support this hermeneutical obsession in obvious ways. Brevity invites and indeed requires interpretation to connect the clauses, fill in the silences and search for meanings beyond the four corners of the text. The sheer fact of longevity, meanwhile, has endowed numerous clauses with interpretive histories of their own. Other provisions, like impeachment, operate as sleeper clauses, lying dormant for decades, then exploding into prominence and demanding interpretation.
One other fundamental circumstance renders our Constitution susceptible to endless explication. Ever since Alexander Hamilton proposed chartering a national bank in 1791, Americans have repeatedly had to learn that the boundary between what is political and what is constitutional is permeable. Political disputes regularly escalate into constitutional quarrels because we naturally prefer decisions to be made by those institutions that offer our side the best chance of prevailing. Moreover, our muddied schemes of federalism and separated powers mean that we can usually make a plausible case that rule-making authority resides in the institution(s) where we have the best shot.
Taken together, these conditions suggest that we will never get closure on the meaning of the Constitution. History, politics, legal precedent and the coexistence of rival interpretive theories–from the broadest versions of Ronald Dworkin’s “moral reading” of the Constitution to the narrowest form of Robert Bork’s “originalism”–all guarantee that the original document and its leading amendments will remain controvertible.
This may disturb naïve purists and enthusiastic originalists who think that the meaning of the Constitution really can and should be fixed. But it is great news for those of us who make our living writing about constitutional law, history and theory. Of course, not all of us are competent to do all three, but among those hardy few bold enough to make the attempt, Akhil Amar ranks high for ambition and enterprise.
Amar makes his intellectual home at Yale Law School, the high temple of constitutional theory. Back in the 1920s and ’30s, it was the nursery of legal realism, which treated law as a continuation of politics and policy by other means. Its transformation into a shrine of constitutional theory began with the 1962 publication of Alexander Bickel’s famous work The Least Dangerous Branch. With its careful if occasionally overwrought analysis of “the countermajoritarian dilemma”–that is, the idea that the exercise of judicial review is always problematic because it empowers politically unaccountable judges to overturn the decisions of more democratic bodies–Bickel’s book laid out the basic issue that constitutional theorists have been revolving ever since.