Reviewed by Michael L. Ramsey
MICHAEL L. RAMSEY is president of the Roanoke Public Library Foundation.
The creation and adoption of the United States Constitution marked a sea change in American political structure. More than 225 years later, it continues to be the topic of conversation today in the offices of legal experts, the streets of small towns and in drinking venues throughout the country.
Two traditional partisans in constitutional discussions are those who believe the document should be read literally and those who think it should be reinterpreted in the context of today.
It appears that the truth lies somewhere else — perhaps the middle.
In the words of Akhil Reed Amar, professor of law and political science at Yale University, “We must learn to read between the lines — to discern America’s implicit Constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution literally and reading the document faithfully.”
That is a good summary of the theme of Amar’s newest book about the nation’s supreme law, “America’s Unwritten Constitution.”
To achieve his goal of finding the “implicit Constitution,” Amar looks to case law and legal precedent. His focus throughout is to demonstrate that the Constitution is to be read holistically — not clause by clause.
He examines the unanimous decision of the U.S. Supreme Court in the 1819 case of McCulloch vs. Maryland. Chief Justice John Marshall wrote the opinion for the court. In so doing, he took a stand for the Constitution as the instrument which established the United States as one nation, not a confederation of sovereign states.
The McCulloch case was brought when Maryland tried to use state sovereignty to tax the Bank of the United States. Amar presents an easily understood explanation of the sometimes subtle differences between a united nation and a loose association. The intent of the Constitution was to establish a nation in which one state may not use its position to penalize the citizens of the other states.
Marshall’s opinion reads, in part, “the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.”
Marshall’s opinion in this matter was part of the reason Thomas Jefferson developed a strong dislike for his fellow Virginian. But it was Marshall who was the Constitution expert, and it has been his opinion that set the direction of the relationship between the nation and its constituent states.
Amar indulges in a bit of historical speculation (based on a factual case) to show how Marshall’s 1819 opinion in McCulloch also played a significant role in the debate over freedom of speech during the years just prior to the American Civil War.
The speculative fantasy involves an almost hypothetical Illinois congressman, Amar calls him Lincoln Abraham. Candidate Abraham sends campaign materials to North Carolina calling for the abolition of slavery, and North Carolina issues a warrant for his arrest for treasonous speech.
Prior to the war, North Carolina did have such a law, and in one iteration of the law, the penalty was death by hanging.
The issue of free speech, which has its own amendment, surfaces through Amar’s study to show this basic freedom is intertwined with many aspects of the implicit Constitution.
In an account of the very real impeachment trial of President Andrew Johnson, Amar shows the pitfalls of trying to follow the exact letter of the law. It is an amusing story of American history and politics, and the story illustrates why a literal interpretation of the document could lead into a Byzantine maze from which there is no escape.
There is an entire chapter devoted to exploring how George Washington faced the challenge of breathing life into a document over whose creation he presided.
Professor Amar’s credentials might be cause for alarm for the casual, less scholarly reader, but Amar’s erudition is moderated by his ability to make an entertaining story of interpreting the Constitution.
This book will be a helpful tool to those who are involved in interpreting the Constitution. More important, perhaps, is the value it brings to the common citizen’s knowledge of the basic law that rules our nation. Fortunately, Amar’s skill as a writer and storyteller makes this book easily understood by all.
In the Oct. 7, 2012, edition of The Roanoke Times, Michael Pace and Timothy Isaacs of the Center for Teaching the Rule of Law wrote:
“The most significant challenge to individual liberty and collective freedom today is educating our youth about the importance of the rule of law and the need to preserve, promote and protect it.”
“America’s Unwritten Constitution” should have an important place on the reading list for that important aspect of a citizen’s education.