JLST 401
The Unwritten Constitution Spring 2024
Division II
This is not the current course catalog

“The eight thousand words of America’s written constitution only begin to map out the basic ground rules that actually govern our land.” So begins Akhil Amar’s book America’s Unwritten Constitution. Amar recasts the debate over whether America has a “living Constitution,” a debate usually revolving around whether change in constitutional meaning requires resort to the formal amendment process or can be achieved through judicial interpretation. Amar supports the latter view, but proposes something far-reaching: history itself effectively amends the Constitution. Thus, for example, he argues that speeches by Martin Luther King and precedents set by George Washington, as well as the daily activities and assumptions of ordinary Americans, have become constitutional subtext requiring consideration when we interpret the Constitution. Is that notion convincing? Preposterous? A healthy way of understanding the inevitable intersection of law, history, and politics? A transparent excuse to read one’s own views into the Constitution? Through a careful reading of Amar, and other important constitutional theorists, we will probe different ways of thinking about the supreme law of the land.