America's Unwritten Constitution

July 2, 2012
Yale law professor Amar follows his highly regarded historical-textual analysis of America’s Constitution with a companion volume on the history, culture, and legal tenets of the “unwritten constitution,” the traditions and precedents that inform constitutional interpretation. Amar proposes that the unwritten constitution is by necessity on equal grounds with the written one and provides the context for unraveling the many questions the Constitution leaves undetermined. In effect, the unwritten constitution fills the gaps necessary to make the Constitution a working, living document. Among the “documents” Amar cites are the precepts of early English jurisprudence; Supreme Court decisions, including cases that are notorious because they were wrongly decided; and famous speeches, like the Gettysburg Address that presaged the meaning of the equal protection clause of the 14th Amendment. Among the many examples Amar uses to explain the interplay between the written and unwritten Constitution are death penalty jurisprudence, the right to a jury trial, and the establishment clause of the First Amendment. He also examines the constitutionality of special prosecutors, political parties, and filibusters to effectively make his point: the Constitution’s textual limitations and its interpretation require acknowledging the unwritten constitution. Sophisticated readers will be rewarded for traveling with Amar as he covers a great deal of ground. Agents: Glen Hartley and Lynn Chu.