The Mirage of Progressive Originalism

Dana Verkouteren/AP/Corbis

by Randy Barnett

Wall Street Journal
September 7, 2012

Akhil Reed Amar is a rarity: a progressive law professor who is unafraid of the text of the Constitution. Most progressives would see whole passages of the Founders' Constitution "interpreted" away. But Mr. Amar has never met a clause he didn't like. In his ambitious new book, America's Unwritten Constitution, he examines the paradox of needing to go beyond the text in order to faithfully follow the text.

At nearly 500 pages of analysis, this is actually two books in one. In the first, the author discusses what he calls "America's Implicit Constitution," by which he means what you can glean "between the lines" of the text. His is a "holistic" interpretation, one that rejects reading passages or clauses of the text in isolation from the document as a whole. He is masterfully creative in finding overarching themes that tie the disparate clauses together in novel and sometimes counterintuitive ways. For example, because the abortion and contraception laws invalidated in Roe v. Wade and in Griswold v. Connecticut, respectively, were enacted before women could vote, Mr. Amar proposes that the old statutes should have been held unconstitutional under "a robust vision of the Nineteenth Amendment" that protected women's suffrage (though he also intimates that, if reenacted today, such laws might violate the "robust idea of sex equality" now supported by "a strong majority of Americans," which provides a "popular gloss" on the Fourteenth Amendment).

In what amounts to a second book, Mr. Amar dedicates chapters to "America's Symbolic Constitution," "America's Feminist Constitution," "America's 'Georgian' Constitution" (as in George Washington), "America's Institutional Constitution," "America's Partisan Constitution," "America's Conscientious Constitution" and "America's Unfinished Constitution." These chapters read more like separate essays on discrete topics than parts of a coherent whole, but they do reveal the expansiveness of Mr. Amar's vision of an unwritten Constitution.

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