Akhil Reed Amar writes that the purpose of his latest book, America’s Constitution: A Biography, is to present a comprehensive account that will introduce readers “both to the legal text (and its consequences) and to the political deeds that gave rise to that text.” He further explains that the word “biography” denotes his attempt “to illuminate a landmark text much as a standard biographer might shed light on the life of some prominent person” by examining the document’s “external impact and internal structure”its personality. In several places he mentions that he wants to illuminate both the letter and the spirit of the Constitution.
Amar examines all the separate parts of the written Constitution of the United States. He analyses how and why each part was written as well as its various meanings during and shortly after enactment. Although he makes numerous references to later interpretations by the Supreme Court, he does not attempt to present a comprehensive account of the later history. The subtitle A Biography, therefore, is something of a misnomer, for it would seem to suggest a narration of the entire life of the Constitution, including the aging process. The reader who desires a more complete story of the Supreme Court’s interpretation of the Constitution should look to other books, such as A March of Liberty: A Constitutional History of the United States (1988), by Melvin Urofsky.
In the U.S. political system, the courts, especially the Supreme Court, have long exercised significant social and political power as a result of their established authority to declare legislative or executive acts to be unconstitutionala practice called judicial review. In a polarized political climate, therefore, one should not be surprised that conservatives and liberals strongly disagree about the methods and theoretical approaches that should be used in interpreting the Constitution. Many conservatives decry the practice of “judicial activism,” and they sometimes argue that judges and justices should take “strict constructionist” approaches to the constitutional text. Conservatives also tend to advocate exegesis based on the text’s “original meaning.” Liberals usually disagree and advocate the notion of a “Living Constitution,” which most often means that judges should be allowed to make broad interpretations that promote liberal principles of equality, human rights, and natural justice.
Such debates about hermeneutics (or interpretative theory) become intense because they are relevant to judicial decisions about issues such as affirmative action, property rights, states’ rights, abortion rights, criminal procedures, and capital punishment.
Amar uses a combination of interpretative approaches. While referring to himself as a constitutional textualist, he argues that it is necessary “to understand precisely what the document did and did not mean to those who enacted and amended it.” Amar takes very broad views of both textual analysis and the search for original understandings. In the first place, he tries to discern the “meaning inherent in the basic acts” of the writing and ratification processes, so that he considers that these actions reflect understandings that are part of the very essence of the Constitution. Secondly, Amar’s analysis gives special heed to how the constitutional texts were interpreted in the period following the ratification process. He insists that this is especially appropriate in the precedent-making acts of George Washington after 1789, even though a critic might object that framers and ratifiers did not indicate a desire to give Washington a carte blanche of unlimited prerogatives. In the case of the Fourteenth Amendment, Amar is more persuasive when arguing that the Reconstruction Congress signaled its intentions with implementing legislation.
Amar’s emphasis on originalism does not mean that he is opposed to the Living Constitution perspective. Indeed, he argues that “at key points the text itself seems to gesture outward” toward the recognition of “unenumerated rights above and beyond the textually enumerated ones.” This and other statements seem to imply that Amar would endorse an expansive reading of the Constitution to include the controversial right to privacy, which provides the theoretical justification for women to have abortions. It is unlikely, on the other hand, that he would give much attention to arguments in favor of legal rights for prenatal life.
Although Amar is highly critical of many provisions in the Constitution, especially on the issue of slavery, he acknowledges that his ideas are rather “Whiggish,” for he views the Constitution as moving toward ever-expanding democracy,...
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