When Ronald Reagan nominated federal Judge Robert Bork to fill a vacancy on the Supreme Court in 1987, my first reaction was generally positive: I was a Republican congressman, had a good relationship with Reagan (having been director of policy task forces for his 1980 presidential campaign), and was inclined to accept the president’s choice.
Then at breakfast one day, I asked Bork whether he actually believed — as had been reported — that citizens have no constitutional right to privacy, despite the court’s finding in Roe v. Wade. In response, he repeated his view that citizens can claim only those rights guaranteed to them by the Constitution. Because I believe the opposite (that citizens retain all rights not delegated to government), I opposed his nomination.
But that is the way it is in the world of constitutional interpretation, a perpetual debate between originalists (essentially, mind readers whose subjects are long dead) and strict constructionists (who hold that a document means precisely what it says).
The Constitution has been described as both binding law and aspirational treatise. Must one obey it or merely be “guided” by it as one might take note of Franklin’s aphorisms or Montaigne’s essays? Into that debate comes Akhil Amar, a Yale law professor and one of contemporary America’s most brilliant constitutional scholars, suggesting in his latest, and best, book, “America’s Unwritten Constitution,” that the issue is not an “either-or” question. Rather he argues that the Constitution itself contains an invisible language, which can be deduced from the reasoning behind the actual passages.
Amar is a clever man and in arguing for more attention to those principles unstated but implied in the Constitution he presents us with a variety of sub-constitutions: the one that was enacted, the one that is lived, one that is symbolic, a “feminist” Constitution, a “conscientious’’ Constitution, and so forth. In less deft hands, this would be a muddle. Not so here. Discussing the interpretations that have allowed Congress and the courts to extend specific protections to women, for example, Amar writes:
“If we are to vindicate the written Constitution’s legitimating principle — popular sovereignty — we should embrace the following as a basic precept of America’s unwritten Constitution: When the written Constitution can fairly be read in different ways, congressional laws that are enacted after the Nineteenth Amendment and are designed to protect women’s rights merit a special measure of respect because of their special democratic pedigree. Thus, Congress should enjoy broad power to protect women’s rights for the simple reason that the unwritten Constitution is a Constitution of American popular sovereignty.’’
Discussing the role of conscience, Amar notes the frequency with which jurors are not told of their “absolute legal right to acquit even in cases of overwhelming guilt if they feel as a matter of conscience that the legal punishment is obscenely harsh.” How then to bring conscience into play? Trial judges, he writes, “should be recognized as having broad discretion to be merciful to criminal defendants. Cruel and unusual punishments are expressly prohibited by the Constitution; merciful and unusual punishments are not.” In support of his argument, Amar cites the case of John Peter Zenger, the New York publisher who was technically guilty of libeling the colony’s crown-appointed governor but was nonetheless acquitted by a jury whose collective conscience laid the foundation for First Amendment guarantees of the freedom of the press.
As a lawyer and constitutional rights activist, I cannot imagine how anybody who cares about the law, and justice, which are not always the same thing, could fail to place this important book at the very top of the must-read list. It’s a gem.
Jeffrey Toobin’s book, “The Oath: The Obama White House and the Supreme Court” is no less a gem, but of a very different sort. If Amar’s book is for scholars, Toobin’s is for political, and governmental, junkies — those of us who simply cannot get enough of the fascinating interpersonal dynamics that shape so much of what goes on at the top levels of government. If one would compare Amar’s book to Blackstone’s “Commentaries,’’ Toobin’s would fall into the Robert Caro-Lyndon Johnson category. The “what’s really going on here?” genre of political studies.
Looking at a Supreme Court showdown over the individual right to keep and bear arms, Toobin begins not with the Constitution but with a man named Robert Levy, an employee of the Cato Institute, and his decision to challenge restrictions on gun ownership even against the opposition of the National Rifle Association, which thought his case was weak and could harm chances of a court victory in the future.
Most political observers know the case ended up affirming the right of citizens to keep handguns in their own homes; what Toobin adds is the “rest of the story”: the players and the internal conflicts and the careful strategizing of the justices in shaping the decision.
Likewise, the Supreme Court’s consideration of the Hamdan case (about the adequacy of Guantánamo detainee “trials” before military commissions) provides Toobin with an opportunity to talk about the mindset of Justice Anthony Kennedy (“the most provincial of men”) who “grew up in Sacramento and still lived [at the time of his appointment] in the house where he was raised.”
If Amar’s book enlightens us — makes us think more deeply about deeply serious things — Toobin’s entertains us and reminds us that it is the interplay between different personalities and agendas that more than any scholarly argument or historical text is often at the heart of the laws we live with.
AMERICA’S UNWRITTEN CONSTITUTION: The Presidents and Principles We Live By
By Akhil Reed Amar
Basic, 615 pp., illustrated, $29.99
THE OATH: The Obama White House and the Supreme Court
By Jeffrey Toobin
Doubleday, 325 pp., illustrated, $28.95