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“America’s Unwritten Constitution: The Precedents and Principles We Live By By Akhil Reed Amar

By Ken Gormley,October 06, 2012

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Indeed, Amar decries today’s bipolar political culture, declaring, “Too often, each side shouts past the other, and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontextual — unwritten — principles.”

This book is constructed like a towering Jenga game. It presents constitutional brain twisters such as: Could a president be arrested while traveling in a state hostile to his policies and thrown in jail for alleged criminal conduct, even though this might cripple the nation? The Constitution tells us nothing about whether presidents can be indicted or incarcerated while in office. (The answer is: probably not. You’ll have to read the book to see why.)

The book includes surprise discoveries such as that the version of the Constitution most often used in schools and courts — hand-signed by the framers — is not the “official” version of the document as ratified and printed on Sept. 28, 1787. Some words and punctuation do not even match. As Amar quips, so much for “hardcore” textualism.

The book includes thought-provoking chapters such as “Remembering the Ladies: America’s Feminist Constitution,” which explains why the ratification of the 19th Amendment in 1920, granting women the right to vote, empowers Congress to protect women’s rights in a host of modern contexts.

Perhaps the most intriguing chapter is the last, in which Amar visualizes America’s Constitution in the future. According to him, we might see:

●A system by which Americans could pick presidents by direct national popular election by 2020;

●Amendments allowing immigrant Americans to be elected president;

●Fixed terms for federal judges and justices, perhaps limiting them to 18-year non-renewable terms;

●A U.S. Senate that more directly reflects population, perhaps with up to eight senators for large states;

●Term limits for legislators, recall elections and line-item vetoes, as exist in many states.

Amar makes a creative case that America’s written Constitution and its unwritten Constitution, since the beginning of the nation, have fit snugly together to form a single, more perfect union. He reminds us that “ordinary citizens celebrate this document — at times to the point of idolatry, revering it without reading it.” A good starting point is to read the Constitution. A next worthwhile step is to brew a perfect mug of tea, find a quiet chair and read Amar’s book.

bookworld@washpost.com

Ken Gormley is dean and a professor at Duquense University School of Law. He is the author most recently of “The Death of American Virtue: Clinton vs. Starr.”

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