Examining America’s Unwritten Constitution — A book by Professor Akhil Amar '84
The eight thousand words of America’s written constitution only begin to map out the basic ground rules that actually govern our land. For example, the idea that racial segregation is inherently unequal does not explicitly appear in the terse text. The First Amendment prevents “Congress” from abridging various freedoms, but does not expressly protect these freedoms from abridgment by the president or state governments. None of the Constitution’s early amendments explicitly limits state governments. While everyone today refers to these early amendments as “the Bill of Rights,” this phrase, too, is unwritten. The phrases “separation of powers,” “checks and balances,” and “the rule of law” are also absent from the written Constitution, but all these things are part of America’s working constitutional system—part of America’s unwritten Constitution.
Consider also the axiom that all voters must count equally—one person, one vote—in state elections and in elections to the U.S. House of Representatives. No clause of the written Constitution expressly proclaims this axiom. At the Founding, this axiom was not widely honored in practice; nor did it sweep the land at any time over the next 175 years. And yet
today, this unwritten rule—a rule supported by every Supreme Court justice, by both major parties, by opinion leaders of all stripes, and by an overwhelming majority of ordinary citizens—forms the bedrock of the American system of government.
Of course, much (though not all) of America’s “unwritten Constitution” does involve written materials, such as venerable Supreme Court opinions, landmark congressional statutes, and iconic presidential proclamations. These materials, while surely written texts, are nonetheless
distinct from the written Constitution and are thus properly described by lawyers and judges as parts of America’s unwritten Constitution.
America’s unwritten Constitution encompasses not only rules specifying the substantive content of the nation’s supreme law but also rules clarifying the methods for determining the meaning of this supreme law. The written Constitution does not come with a complete set of instructions about how it should be construed. To some extent, these instructions are thus unwritten.
Without an unwritten Constitution of some sort, we cannot even properly identify the official written Constitution. In the late 1780s, several different versions of the text circulated among the citizenry, each calling itself the “Constitution.” Each featured slightly different punctuation, capitalization, and wording. Which specific written version was and is the legal Constitution? To find the answer, we must necessarily go beyond these dueling texts themselves and consider things outside the texts. (When we do, we shall discover that the handsigned parchment now on display in the National Archives is not and never was the official legal version of the Constitution, though this celebrated parchment does, happily, closely approximate the official text.) With a proper analytic framework in place, we shall also be poised to resolve a debate that has recently erupted about whether the Constitution contains a consciously Christian reference to Jesus in the phrase “the Year of our Lord”—a phrase that appeared in many but not all of self-described written Constitutions making the rounds in the 1780s.
What, exactly, is the unwritten Constitution and how can we find it? How can Americans be faithful to a written Constitution even as we venture beyond it? What is the proper relationship between the document and the doctrine— that is, between the written Constitution and the vast set of judicial rulings purporting to apply the Constitution? In particular, how should we think about various landmark cases— from Brown v. Board of Education and Gideon v. Wainwright to Reynolds v. Sims and Roe v. Wade—that critics over the years have assailed as lacking proper foundations in the written Constitution?
To read the full text of this article, visit the webpage for the Winter 2013 issue of the Yale Law Report.