an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have finished reading Akhil Amar's terrific new book on The Unwritten Constitution. It's something that everyone who enjoys constitutional law or politics should buy. You'll want to throw it across the room when you disagree with what he says, but five minutes you will run over and pick it up again.
Now I have a few nits to pick here and there, but my main criticism of the book is that I don't like Amar's definition of the unwritten Constitution. What do I mean by that? I mean that his working assumption seems to be that something violates the unwritten Constitution only if a court or the body charged with making the call (say, the Senate during an impeachment trial) would (or should) say the act is unconstitutional. This, though, strikes me as incomplete.
Here's one example. Amar claims that the current size of the Supreme Court--nine Justices--was not settled by the failure of Franklin Roosevelt's Court-packing plan in 1937. He points out (correctly) that Congress can still change the size of the Court for some good-government reason. The problem is that most lawyers would view such a change as deeply wrong no matter what the explanation is. (Indeed, I would submit that this is far more settled than other constitutional rules that Amar defends in the book.)
Amar's approach would also deny unwritten constitutional status to various canonical statutes. Nothing in the Constitution mandates the existence of lower federal courts--the Judiciary Act of 1789 does that. Nothing requires that various segments of American life be desegregated--the Civil Rights Act of 1964 does that. And so on. Of course these statutes can be repealed, but doing so would be seen by a lot of people as "unconstitutional." There are, in other words, unwritten political limitations on Congress.
In the end, Amar (patriotic American that he is), does not accept the British concept of unwritten law. If I were writing a book about the British Constitution, I would not simply ask "What can't Parliament do?" If I did, it would be a very short book. Rather, I would ask, "What institutions or practices are so deeply woven into the law that it would be unthinkable for Parliament to change them?"
As an alternative to Gerard's closing suggestion, maybe there's a book in the wings for Gerard if he's not too busy:
"REHABILITATING THE UNWRITTEN CONSTITUTION"
This might give rise to a movement for a constitutional convention and an amendment making it clear that there is no unwritten constitution that's worth the paper it's not written on.
For those interested in Amar's new book, he is posting at VC, including responses to his postings by DB and Ilya, to which Amar responds (as well as comments from the "usual suspects" at VC). Looks like a "round-robin" constitutional brouhaha in the making.
Imagine oral arguments with 17 Justices to ask questions and otherwise interrupt the attorneys, to write more books on judicial philosophy and how to interpret/construe the Constitution. Imagine also the additional confirmation time in the Senate.
I don't think nine (9) is a magic number, but what might the historical (hysterical?) accuracy of foresight tell us what to expect with either an increase or decrease in the number of Justices? I go along with mls' question, whether the impact would be predictable or unpredictable.
"In the end, Amar (patriotic American that he is), does not accept the British concept of unwritten law."
It's his saving grace. From an American standpoint, the very idea of "law" implies "written", because the law consists of formal rules. If it isn't formal, written down, it isn't law. It is merely "custom".
Mark, if that's the "modern" conception of the law, I'd say a lot of people, such as Gerard above, are trying to kill it off, on the basis that it's already dead outside the US, where custom is binding, and written law is, eh.
Unwritten constitutions are fine in their place, which is countries which lack written ones. But the primary point of writing down law, (And constitutions are law, or they are nothing.) is so that you know what the law is. And by extension, isn't.
I guess I can see "unwritten constitution" as a metaphor, though I think it's not a very good one. But I repeatedly get the impression it's meant to convey something more literal.
And that the point of elevating the unwritten, is to lower the written...
I don't think they're trying to kill it off so much as pointing out that long-standing custom acquires a force of its own even in situations where there's a formal law. This happens a lot outside the area of Constitutional law. It's part of the basis for stare decisis, for example, but custom and practice are recognized in many areas.
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