Posner v. Amar, Round I: Posner on Amar’s “promiscuous” reading of the Constitution

October 20th, 2012

In discussing the ongoing feuds between Justices Scalia and Richard Posner, I commented “Know what would be awesome? The feud that would ensue if Posner reviewed Akhil Amar’s new book the same way he reviewed Scalia and Garner’s book.”

Posner reviewed Amar’s book. And it was just as awesome as I expected.

So let me declare the battle of Posner and Amar opened. Round 1 goes to Posner.

Some history first. In Amar’s blog post on Volokh criticizing Randy Barnett, Amar also assailed Posner for not reading his work.

Now, it is hard to blame Posner for being unaware of evidence presented in a book still in page proofs when he set out to skewer Scalia. It is easier to blame Posner for completely ignoring earlier versions of this evidence in my previous two books, and in a whole slew of articles that I wrote over the last twenty years.

Well now Posner has read it–and he’s not persuaded.

Posner’s main claim is that Amar has 12 (!) different “Constitutions,” which he can pick and choose from to obtain whatever result he sets out to reach.

Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.

This mirrors Randy Barnett’s comments about Amar’s book, which is stated much more subtly.

Despite Mr. Amar’s best attempts to convince us otherwise, the danger of the unwritten Constitution remains. The label elevates non-constitutional authorities to a stature equal to, or even greater than, that of the written Constitution. Where Mr. Amar cannot make the written Constitution say what he wants, he can simply appeal to the unwritten Constitution to say the rest. And, judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.

Notwithstanding his purported textualism, in this highly engaging and thought-provoking book, Akhil Amar’s “unwritten Constitution” turns out to be just another living constitution, after all.

I commend you to read the entire review, though here are some of Posner’s more barbed comments:

Posner opens up by going after all theists, Catholics in particular, by comparing adherence to a written Constitution with devotion to a written Bible–and not in a good way.

This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there.

Amar turns between each of the various Constitutions whenever it suits him, Posner asserts:

But Amar often turns textualist and originalist when he is discussing the written Constitution, as he can afford to do since he has eleven unwritten constitutions to fall back on to reach whatever result his heart or his philosophy tugs him toward. . . .

WHEN YOU HAVE twelve constitutions to play with, of which only one is a document, you can reach any result you want, and you can say that the result you want is in the Constitution(s), which like the Trinity is at once singular and plural. You put it in, you stir it in a pot called “the implicit meaning of the Constitution as a whole,” and then you pluck it out, congratulating yourself on your “sensitive understanding of America’s unwritten Constitution.”

And Posner had the temerity to say that Larry Tribe is just the Amar of Harvard. Or is it that Amar is the Tribe of Yale. Either way, I’m sure both are offended.

If instead of invoking unwritten constitutions, Amar were content to note and to describe the multifarious influences on the judicial formation of constitutional doctrine, he would be on solid ground. But he takes the notion of unwritten constitutions literally, and the results are bizarre—even more so than those of The Invisible Constitution, by Amar’s Harvard counterpart Laurence Tribe. Tribe was able to conjure only six invisible (not to him, of course) constitutions, all beginning—a remarkable coincidence—with the letter g, such as the geodesic constitution and the gyroscopic one. Amar, with eleven unwritten constitutions, has more putty to knead and shape: eleven unwritten constitutions to Tribe’s six invisible ones. (I expect we will soon see a book titled The Hidden Constitution.)

 Posner criticizes Amar’s treatment of the 9th, 14th, and 19th Amendments, arguing that they are devoid of reality and ignore how those provisions were actually enacted and what they meant, both at the time of their framing, and today.

This bit about the 9th Amendment is somewhat interesting in light of Posner’s association of popular constitutionalism and the Affordable Care Act.

He thus reads it to forbid infringing on rights even if they are not mentioned in the Constitution and did not exist when the Ninth Amendment was ratified in 1791. Rights such as the right to decide what to eat or when to go to bed are part of the unwritten constitution, and therefore sacrosanct. “A strongly held belief by 55 percent of Americans that they have a constitutional right” is enough to make it “a truly unenumerated” constitutionally protected right. And doubtless more than 55 percent of Americans (especially if one excludes children, prison inmates, and soldiers) think they have the right to go to bed when they want to go to bed; and therefore it is their constitutional right. (And likewise to buy sugared soft drinks in large containers—Mayor Bloomberg, watch out!) On the eve of the Supreme Court’s decision in the Affordable Care Act case, two-thirds of Americans were opposed to the key provision of the Act and the focus of the constitutional challenge: the individual mandate—the requirement that everyone who could afford to buy health insurance must do so. Why wasn’t Amar rooting for the invalidation of the mandate as an infringement of the “lived” constitution?

Progressives, generally warm to notions of popular constitutionalism and asking courts to look to public opinion when considering constitutional law suddenly came down a bad case of judicial restraint with the Health Care Cases (as I discussed in my new article).

Posner also undermines the entire notion that our Constitution was actually drafted by We the People–rather it was written by “We the elites.”

In his preoccupation with his unwritten constitutions, Amar sometimes displays unexpected obtuseness about the written one. I mentioned his misreading of section 5 of the Fourteenth Amendment. He describes the Constitution of 1787 as a “continent-wide ‘Constitution for the United States of America,’” though until the Louisiana Purchase in 1803 the western boundary of the United States was the Mississippi River. He harps incessantly on the Constitution of 1787 as a charter of “popular sovereignty,” a charter adopted by “We the People,” indeed “enacted by the American people,” enacted by “America’s supreme legislature, the people”—”the people themselves ratified the original Constitution and all its textual amendments”—hence a democratic charter. In fact the Constitution was ratified by state conventions rather than by popular vote, and although the delegates were elected, the suffrage was extremely limited. Slaves, Indians, free blacks in the South, women, indentured servants, and propertyless men (except in Pennsylvania) had no right to vote. As a result, probably no more than 10 percent of the adult population could vote for delegates to the state conventions. “We the People” who enacted the Constitution should have read “We the Elite.” And notice the inconsistency between Amar’s regarding the 1787 Constitution as a democratic efflorescence and his regarding the denial of the vote to women until much later as invalidating anti-feminist interpretations of that constitution.

In the past I have queried whether any women were involved in the ratification of the Constitution in the state conventions. It may have been possible for women in New Jersey to participate but I was never able to confirm this. I did some research,but not exhaustive. Unfortunately, Pauline Maier’s great book about the Ratification was silent on this issue. I’m glad Posner did this research… Also I seem to remember reading somewhere that free blacks in some New England states had suffrage, so they may have been able to participate. I am not disturbing Posner’s conclusion, but I think it may not be as he stated.

Posner also notes that the American system of government was closely modeled on the aristocratic British model.

Amar seems oblivious, moreover, to how closely the Constitution of 1787 tracked Britain’s less than democratic eighteenth-century governmental system. Although there are many differences, the U.S. Constitution allocates the traditional powers of the English monarch—such as enforcing the laws, appointing high officials, commanding the armed forces, conducting diplomacy, and pardoning—to the president. It allocates the essential powers of the House of Commons to the House of Representatives, and of the House of Lords to the Senate, and it models the federal judiciary on the British judiciary. Under the Constitution of 1787, only the House of Representatives was to be popularly elected, underscoring the resemblance of the House of Representatives to the House of Commons, and like the House of Commons the suffrage was limited. Senators were to be appointed by state legislatures, and the president and vice president were to be elected not by the “People” but by an electoral college whose members were selected by state legislatures. The Senate was radically malapportioned. Judges were appointed, and for life. All officials of the executive branch, other than the president and vice president, were appointed rather than being elected whether directly or indirectly.

I’ll quibble with this a bit. Britain in 1776 was ruled by a divine absolute monarch. The United States was governed by a President who was subject to Congress’s powers, and was elected by an electoral college to four year terms. These aren’t even in the same ball park. Further, Senators elected by state legislators with six-year terms are a far cry from the aristocratic lords. Also, the notion of a single Supreme Court was a novelty. The UK only created a true Supreme Court of its own a few years ago.

I quote from the lecture notes of Justice Harlan, who marveled at the Constitution, and the “providential” nature of our system of government.

When discussing the uniqueness of the United States Supreme Court, Harlan queried “[w]here the thought originated of one Supreme Court, I do not know. They certainly did not borrow it from any country on the earth . . . It seems to have come providentially into this instrument.” JMH Lecture [Lecture 19] (March 5, 1898).

Posner chastises “loose” reading of the Constitution (and I use the term “loose” loosely):

ONE GRADUALLY realizes that Amar does not need any of his unwritten constitutions to reach the results he likes, because he reads the written constitution promiscuously. . . .  The idea that the Constitution was a compromise does not enter Amar’s mind. Everything that enlightened modern Americans think good was in the Constitution from the beginning. The eleven unwritten constitutions are just the icing on the cake.

The parting salvo is brutal.

Amar knows a lot about the Constitution, and much of his very long book could be re-worked into a serviceable primer on constitutional law. But in its present form it is not a work of legal analysis. It is the effusion of a visionary and a utopian—of an idolater of the Constitution. The book is unmoored, and stands as a reminder that, as Leon Wieseltier recently wrote, “the mechanical application of ideas to circumstances can be dangerous, and historically amateurish, and lacking in wisdom. It is fanatical, or professorial, to move from a book to a trigger”—in this instance a trigger that could cause a Constitution to explode.

I expect Amar to write something on Balkin or maybe even Volokh in response.

And, in a happy coincidence, I write this post in Philadelphia, the city of the birth of the Declaration and the Constitution.

Update: Judge Posner writes in with a response to my comment comparing the American and British system of government here.