Our Timeless, Timely Constitution

The subtitle of Akhil Amar’s book, “Timeless Lessons for the Issues of Our Era,” describes an interesting problem faced by a Constitution like ours. The Constitution has to be timeless, in the sense of straddling our history past and future, from its original framing in 1787 for as many centuries hence as we expect the republic to endure. But it’s not just an abstract inscription on a pediment. Every generation needs to bring it into focus to resolve controversies that erupt in the particular circumstances of a particular day. Our yearning for something like an immemorial Constitution compounds a desire for continuity, respect for a generation of statesmen at the founding whose like we do not expect to see again, and our distrust of many of the current judges and politicians. At the same time, we need a Constitution that is relevant to our present concerns, if not dictated by them—one that prescribes intelligent solutions to the unprecedented problems that we face. In Amar’s words, the Constitution has to be both timeless and timely.

That’s a tall order, and it is not always easy to get the balance right. Constitutional originalists cling to the understanding of the constitutional text as it was framed and ratified by politicians and voters 229 years ago. They say we should use eighteenth-century understandings to regulate our handling of issues like election-hacking, counterterrorist surveillance, the exclusion of refugees, and same-sex marriage. Using anything more up-to-date would be a betrayal of our constitutional heritage.

Akhil Amar is a professor of law at Yale, where he has taught for more than thirty years. He counts himself as something of an originalist, though he says he’s a liberal originalist. What’s that? Well, he doesn’t think it possible to dismiss out of hand the original understanding of the constitutional text. How else would we even begin to know what the Constitution was referring to? The right to bear arms—is that something about having detached ursine limbs in one’s taxidermy collection or is it a misspelled right to roll up one’s sleeves in the sunshine? (Please: these are Amar’s examples, not mine.)

On the other hand, even the most dogmatic originalism has to give equal attention to those parts of the text laid down in the nineteenth and twentieth centuries. An originalist’s Constitution can’t just be the words of 1787 or 1791, when the Bill of Rights was added. Ours is “a temporally extended text” and its eighteenth-century provisions have to be read in light of “the purpose and spirit and logic of later amendments.” That’s a progressive assignment, says Amar, because

later generations of ordinary Americans mobilized to enshrine in this terse text an end to slavery, a sweeping guarantee of equal birthright citizenship, an emphatic commitment to protecting civil rights against all levels of government, and radical expansions of the rights of political participation—to blacks, to women, to the poor, to the young, and more.

Also, originalism is not literalism. The Nineteenth Amendment gave women the vote, but it said nothing about women standing for office and it left intact Article II’s repeated reference to the president as a “he.” For all his originalism, Amar says that keeping women off the ballot would today be “politically unthinkable and indeed unconstitutional,” at odds with the spirit even if not the letter of the Constitution, whatever the Framers would have thought. The difficulty with originalists of any stripe is to get them to leaven the rest of what they say about the Framers’ intentions with commonsense thoughts like this.

Why revere the Framers? Well, they spoke themselves of the “veneration which time bestows on every thing, and without which the wisest and freest governments would not possess the requisite stability.”¹ They had no choice but to look on the work they were doing with the eyes of generations to come. This is a point that Hannah Arendt makes in On Revolution: “Either they were founders and, consequently, would become ancestors, or they had failed.”²

And they didn’t fail. The fruit of their work is that we have a longer-lasting written constitution than any other advanced democracy. Others have older constitutional materials, like the Act of Union, which formed the United Kingdom of England and Scotland in 1707, or the English Bill of Rights from 1689, from which our prohibition on cruel and unusual punishment is taken. But the United States has the oldest enduring constitutional code, collecting together most, if not all, of the principles of its political order. (Anyone interested in exploring the “if not all” should read Amar’s 2012 book America’s Unwritten Constitution.) That this text survived the transition from a set of fragile and quarrelsome white supremacist states clinging to the edge of an unexplored continent to a vast and integrated postindustrial megapower with 5 percent of the world’s population and almost a quarter of its GDP is a remarkable tribute to those who drafted it in Philadelphia, to the thousands of ordinary citizens who, through majority voting state by state, made it the supreme law of the land, and to the millions whose patience and resolution have kept it working ever since.

No model presented itself. The Framers and ratifiers themselves had no ancestors to worship. They knew that Locke and Montesquieu got it wrong as often as they got it right.³ They were all too human in their quarrels, hesitations, and jostling for partisan advantage. The spirit of the framing was a spirit of innovation: these were radicals who risked everything, first in a revolution (for which, had they failed, they would have been hanged), and second for an entirely new theory of politics. James Madison put it this way: had the people of the United States not taken a chance on the unprecedented structure of what he called an “extended republic,” they would now be “laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind.” The Framers gave us a grand design, but they knew it was “incumbent on their successors to improve and perpetuate” the constitutional scheme.⁴

And in a lovely paradox, what Akhil Amar’s “liberal originalism” fixates on is that it really is up to us to improve as well as perpetuate this invention. A responsible originalist has to be able to look back to the future:

Amendment-minded Americans should imagine ourselves today as representatives of twenty-second-century posterity, tasked with the awesome challenge of framing just rules for that society even though we won’t be here to see it. As modern American constitutionalists focus obsessively on the deeds and words of 225 years ago, shouldn’t we spend at least some time thinking about what we want two centuries into the future? Much of American constitutional law remains to be written.

I have gathered these most helpful reflections from passages here and there in The Constitution Today. It is a pity, however, that they are not matched in their sober thoughtfulness by the essays that make up much of this book. It brings together almost eighty of the columns that Amar has written over the past twenty years for Slate, The Daily Beast, The New Republic, and The Washington Post, among others.

Essays have been included, he says, “on many of the most consequential questions of the last two decades.” There is Paula Jones’s lawsuit against Bill Clinton, the electoral travails of George W. Bush, and Barack Obama’s defense of the Affordable Care Act. One valuable feature is that Amar manages to avoid the obsessive focus on judicial personality that deforms most constitutional studies. On the other hand, the columns are accompanied by observations on the importance of Amar’s own writing that not every reader will find engaging: he is careful to tell us when he was among the first to think about a given topic or when he is convinced that his own students know more constitutional law than some federal judge whom he disagrees with. Also the essays are packaged didactically, sometimes as a course of instruction for ordinary citizens and sometimes as a vocational seminar in constitutional journalism.

Many involve timely suggestions for change—I guess in the spirit of the remarks noted earlier about forward-looking originalism. So, for instance, facing the prospect that the loser in a presidential election might be the clear winner of the popular vote (as Hillary Clinton was in 2016), Amar says we could do away with the Electoral College if every state legislated to choose a slate of electors loyal to the candidate who received the most votes nationwide. (They are entitled to do this, he says—or set up any rule they like for choosing electors—under Article II of the Constitution, without any need for an amendment.) If the eleven most populous states did this (and each could condition its doing so on enough other states participating), the winner of the popular vote would automatically become president. An academic daydream? Amar thinks daydreams “are useful in illustrating how much constitutional creativity is possible within the existing constitutional framework.” And in fact, since he made this proposal, eleven states with a combined 165 electoral votes have passed such a law.

Amar has plans for other problems too. Consider the fate of Merrick Garland, nominated in March 2016 by President Obama to replace Justice Antonin Scalia on the Supreme Court. Garland, who was and is chief judge of the Court of Appeals for the District of Columbia Circuit, is moderate, well regarded, and clearly qualified. Republicans in the Senate, however, wanted Americans to believe that President Obama was not entitled to have his nominee considered after more than three fifths of his second term had expired. So the Court struggled on for the rest of 2016 and up to the present in potential deadlock, with only eight members. What if Garland had been nominated earlier as a sort of justice-in-waiting (like an alternate on a jury) so we wouldn’t have to endure a long vacancy when a sitting justice died or retired?

It’s not as silly as it sounds, says Amar. In July 2005 Justice Sandra Day O’Connor intimated that her resignation would become effective “on the nomination and confirmation of my successor.” Amar’s proposal would be O’Connor’s gambit universalized. It would help keep “the political hardball game of Court replenishment within the lines of fair play.” This too would not require a constitutional amendment, just a change of practice among our politicians. Fat chance, one is inclined to say. But academic daydreams can suggest new solutions to intractable problems.

Here’s another one. At the moment, we have to wait two and a half months after a general election for the victorious presidential candidate to take over—compared to the few minutes it takes in the UK for an electoral transition. Could we change this? It would be easy, says Amar. First of all, once the concession speeches are given, Vice President Biden resigns. President Obama then nominates Donald Trump to be vice-president, under the Twenty-fifth Amendment. Congress confirms him. Then President Obama gracefully steps aside and Vice President Trump becomes commander in chief. All in a matter of days. Admittedly this plan is uncontaminated by any consideration of the thousands of executive appointments that need to be made during an American transition. More than four months after the 2016 election, President Trump’s nominations and confirmations are way behind schedule. But Amar’s point is that “if Americans truly want to streamline our transfers of power, the Constitution does not stand in the way.”

A constitutional amendment would be required, however, for Amar’s solution to the controversy about native-born presidents. Was Ted Cruz born in Canada? Who cares? Why not put paid to the whole mess by simply allowing foreign-born citizens to serve, as Austrian-born Arnold Schwarzenegger was permitted to serve as governor of the state of California? Wouldn’t that be a proposal befitting a country of immigrants? What’s the point of the “native-born” requirement anyway—to stop some foreign potentate with fat moneybags from insinuating himself into the affections of our citizens? In 1797 American newspapers spread the story that the secular Bishop of Osnaburgh, second son of King George III, was fancied by some as king of the United States.⁵ But perhaps that danger has passed.

Not everything in the book consists of bright ideas like these. There is some serious substantive analysis. Amar gives a clear, detailed, and passionate account of what was at stake in the constitutional standing of Obamacare, taking us on an illuminating tour of the Constitution’s commerce clause (the clause that gives Congress the power to “regulate commerce…among the several states”). He explains how the problem of health care creates spillover effects that move right across state lines:

At any given instant, literally millions of Americans are out of state. Most of my students come from other states. I myself am out of state three days a week. If any of us falls sick while out of state, we can seek emergency-room care in the host state. And unless we have insurance, we will be imposing costs on other states. Obamacare addresses this obvious interstate problem.

Not only that, but the legislation made it easier for people to move from state to state, for a better job for example, if they don’t have to worry about obtaining new insurance for a preexisting condition. Where necessary Amar works in an originalist theme as well. The individual mandate in Obamacare is not unprecedented: the Militia Act of 1792 required citizens to procure muskets, shot, and powder pouches so that they could contribute to the common defense. The eighteenth-century legislators could have authorized the state to tax its citizens to buy the muskets for them. And everyone agrees that it would have been constitutional for the legislators of 2010 to tax individuals for nationally provided health care. The choice of mandate instead was just an alternative choice of means, and Amar demonstrates that no convincing constitutional challenge can be mounted against it.

On the “war against terrorism,” Amar offers relatively little in the way of commentary. The issues, he says, “lie near or beyond the boundary of my expertise.” He discusses whether we need legislation postponing federal elections like the state legislation invoked by New York Governor George Pataki on September 11. And in a piece on the Boston Marathon bombing, he argues that Dzokhar Tsarnaev ought to have been required, on penalty of contempt, to answer investigators’ questions. Provided that his answers are not themselves introduced in evidence, there is no violation of the Fifth Amendment. If only evidence generated by leads that his answers provide is used in court, he is not being “compelled to be a witness…against himself.” The Supreme Court, he says, should therefore change its interpretation of the Fifth.

Amar’s view of the Fourth Amendment, the one that controls searches and seizures by the government, is also heretical, but more refreshing in its implications. He argues that our notion of a search ought to be more generous. Amar wants the Fourth Amendment interpreted so that it controls not just the ransacking of one’s home and possessions but also the mere scrutiny of one’s public words and actions. So, for example, an FBI agent walks into a mosque. Like other participants, he watches and he listens. Afterward, he writes down some of what he heard and saw and passes it onto his superiors. He is trying to detect signs of radicalization, as part of the government’s strategy against lone-wolf terrorism.

Amar calls this tactic “naked-eye surveillance.” Is it a search, controlled by the Fourth Amendment? Yes it is, he says, citing the Oxford English Dictionary, which defines “search” as “to look scrutinizingly at.” (He doesn’t mention that this is sixth out of thirteen definitions in the OED, all of which are narrower than the one he cites.)

So does mosque-watching require a warrant? This brings us to a second point. The Fourth Amendment doesn’t actually say that every search has to be backed up by a warrant. It mentions warrants and it protects people against unreasonable searches, but it doesn’t draw a connection between the two. So why not say that government agents may search someone’s home (or mosque) even without a warrant, provided the search is reasonable? True, that requires us to make value judgments about new forms of surveillance that the men of 1791 could not have contemplated. But perhaps that’s why they used a word like “unreasonable,” to authorize our examination of contingencies that their intentions and their experience couldn’t possibly cover.

An example is the taking of DNA swabs for a law enforcement database from those arrested for serious offenses. Is that constitutionally prohibited? Amar insists that the Framers did not answer this question in 1791, and he himself doesn’t come up with a determinate answer. The Framers left it for us to consider various things that we know (and they couldn’t) about DNA’s possibilities and possible abuses in law enforcement that might affect the reasonableness of such a tactic.

As for mosque-watching, given the constitutional status of religious freedom, not to mention political expression, we might want this investigatory tactic to remain under the supervision of the courts. Certainly the FBI should regulate such surveillance as though it were a subject of constitutional scrutiny. Amar’s definition of “search” may be way too broad, semantically. But he is right about reading the Fourth Amendment so that we don’t lose sight of the reasonableness requirement attaching to government surveillance, and the independent work it is supposed to do. That a search must be reasonable doesn’t mean that the courts can permit or prohibit whatever they like. But patently the Framers are asking the courts to exercise judgment. They ought to respect the fact that the Constitution requires them to examine the strength of the reasons that motivate a given intrusion as well as the constitutional weight of the reasons that are adduced against it.

I don’t think there is anyone in the academy these days capable of more patient and attentive reading of the constitutional text than Akhil Amar. When that close reading is allied with the kind of thoughtfulness that we find in his Fourth Amendment discussion, it is a formidable resource. When it becomes an object of reflection in itself—why have we committed ourselves to a text in this way?—it produces deep insight into the possibilities and paradoxes of an enduring constitutionalism. It is only when Professor Amar starts building what he calls his “clever legal contraptions” that the essays become tiresome—too clever by half to accommodate the abiding concerns he identifies for us.