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THE “UNWRITTEN CONSTITUTION”
AND UNWRITTEN LAW
Stephen E. Sachs*
America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law—the everyday, nonconstitutional law, written and unwritten, that structures our gov- ernment and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language. This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep theories of political legitimacy and with daily practice in the courts, the book may venture further than our conventional legal sources can support. To put it another way, any- thing the “unwritten Constitution” can do, unwritten law can do bet- ter; and what unwritten law can’t do, probably shouldn’t be tried. Yet whether or not we accept the idea of an unwritten constitution, by re- focusing attention on America’s rich tradition of unwritten law, Amar performs a great service to constitutional scholarship.
I. INTRODUCTION
Everyone knows that America has “a written constitution, not an unwritten one.”^1 That’s a central feature of our law. And few have stud- ied that Constitution with as much care and devotion as Akhil Amar. 2
- Assistant Professor of Law, Duke University School of Law. Thanks to William Baude, Jo- seph Blocher, Josh Chafetz, Marin Levy, David Pozen, and Amanda Schwoerke for advice and com- ments. Particular thanks, also, to Akhil Reed Amar—who not only taught me “Reading the Constitu- tion,” but also a great deal about reading the Constitution. I’m deeply grateful for his help as a teach- er, mentor, and scholar, and I’m honored to participate in this Symposium on his work.
- Michael Stokes Paulsen, How to Interpret the Constitution (and How Not to) , 115 YALE L.J. 2037, 2049 (2006).
- See, e.g. , A KHIL REED A MAR , A MERICA’ S CONSTITUTION : A BIOGRAPHY (2005); A KHIL REED A MAR , T HE BILL OF RIGHTS : CREATION AND RECONSTRUCTION (1998).
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But Amar’s new book pursues another target: America’s Unwritten Con- stitution.^3 Beyond the “terse text,” 4 writes Amar, lie doctrines that “support[] and supplement[]” the document and “fill in its gaps.”^5 These include “the basic tools and techniques” of interpretation; “the practices, proto- cols, procedures, and principles that constitute the government”; and other “cherished principles of higher law.”^6 Together, these form Amer- ica’s “unwritten Constitution,” 7 a set of legal rules that range from the highly unorthodox (including a panoply of evolving and unenumerated rights)^8 to the wholly conventional (supporting the holdings, if not the reasoning, of nearly all of modern American case law). 9 From a scholar committed to the document over the doctrine,^10 Am- ar’s commitment to an unwritten constitution might seem surprising. In other ways, though, it’s perfectly understandable. Most of the important parts of American law, “the basic ground rules that actually govern our land,”^11 really aren’t in the Constitution’s text.^12 And many of the rules that get called “constitutional” (and so get taught in Con Law classes) aren’t spelled out there either. If the text is so incomplete, then shouldn’t everyone, even a “hardcore textualist,”^13 start looking outside the Constitution’s four corners? Of course we should. But once we look beyond the “terse text,” the first thing we should see is the rest of the law: the vast array of ordinary legal rules that lack constitutional status, yet still play a crucial role in structuring our government and society.^14 Some of those rules are de- rived from written sources, like statutes, treaties, or regulations. Others are unwritten, like rules of common law, equity, and admiralty. These ordinary rules—unwritten, but also unmysterious—do much of the gap- filling and stabilizing work that might otherwise be attributed to an un- written constitution. In fact, despite the book’s unconventional framing, Amar generally bases his claims about the unwritten constitution in these conventional sources of American law. Often the book supplies a label for existing le-
- A KHIL REED A MAR , A MERICA ’ S UNWRITTEN CONSTITUTION : THE PRECEDENTS A ND PRINCIPLES WE LIVE BY (2012).
- Id. at 481.
- Id. at xi.
- Id. at 481.
- Id. at ix.
- Id. at 103. Among other novel conclusions, Amar argues that popular acceptance can ratify incorrect judicial decisions, id. at 238; that popular sovereignty is an independent ground for otherwise unconstitutional statutes, id. at 282; and that the Fourteenth Amendment’s apportionment provisions guarantee a fundamental right to vote, id. at 188–89.
- Id. at 141.
- See Akhil Reed Amar, The Supreme Court, 1999 Term—Foreword: The Document and the Doctrine , 114 HARV. L. REV. 26 (2000).
- A MAR , supra note 3, at ix.
- See Ernest A. Young, The Constitution Outside the Constitution , 117 YALE L.J. 408 (2007).
- A MAR , supra note 3, at 63.
- See Young, supra note 12, at 411–12.
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1. What is an “Unwritten Constitution”?
The phrase “unwritten constitution” can mean many things. That’s because constitutions do many things. Americans are used to the picture from Marbury v. Madison of constitutions as formal documents, “defin[ing] and limit[ing]” the “powers of the legislature.”^17 But other constitutions look very different. The United Kingdom doesn’t have a written constitution, but it has plenty of legal principles that regulate of- ficial action—including a healthy dose of parliamentary sovereignty.^18 A political scientist, interested in how governments actually oper- ate, might define “the constitution” in a functional way: say, “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state.”^19 On that definition, America’s “constitu- tion” includes a huge variety of legal sources, not just a single text.^20 Congressional committee structures, civil service laws, the Administra- tive Procedure Act, the organic statutes of a host of agencies, and the equivalent sources in fifty states (and also some territories and Indian tribes)—all these affect the distribution and exercise of power, even if they’re repealable at the drop of a hat.^21 Thinking about a “constitution” this way can be useful, especially for scholars of comparative government. But it misses an important sense in which lawyers think about constitutions. In our legal system, un- like our society more generally, the significance of a constitution (state or federal) is more formal than functional. Whatever provisions get put in a constitution, however minor or functionally irrelevant, 22 they can’t be al- tered by ordinary legislation or the ordinary acts of officials. In Marbury , Chief Justice Marshall was certain that “all those who have framed writ- ten constitutions contemplate them as forming the fundamental and par- amount law of the nation.” 23 Even if that’s not true always and every- where, it’s certainly been true of the United States. In our system, a “constitution” refers to a particular document containing particular con- stitutional rules, and a legal rule gets to be called “constitutional” only if it trumps any conflicting legal rules that aren’t. Are any of our constitutional rules, viewed in this sense, “unwrit- ten”? As Blackstone explained long ago, “unwritten” laws can still be written down in various places, like the case reports or scholarly treatis-
- 5 U.S. (1 Cranch) 137, 176 (1803).
- See S EC’ Y OF STATE FOR J USTICE & LORD CHANCELLOR , THE GOVERNANCE OF BRITAIN, 2007, CM 7170, ¶ 211 (U.K.), http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf.
- A.V. DICEY , I NTRODUCTION TO THE S TUDY OF THE L AW OF THE C ONSTITUTION 22 (8th ed. 1915).
- See generally Young, supra note 12.
- See id. at 417.
- See, e.g. , A LA. CONST. amend. 634, § I (adding an extra $40 to Conecuh County’s court costs to fund a new jail).
- Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); accord A MAR , supra note 3, at 205.
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es.^24 What makes them “unwritten” is that “their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and im- memorial usage, and by their universal reception throughout the king- dom.” 25 In other words, like the rules of grammar—and unlike the rules of Monopoly 26 —unwritten laws have no single and authoritative textual source , no pedigree tracing their validity back to a written ancestor. So we might stipulate a definition of an “unwritten constitution,” in our sys- tem, as a body of unwritten law with legal force and effect like that of the Constitution’s written text.
2. How Could We Tell?
If that’s the right way to think about unwritten constitutions, then how do we know if we have one? As any good positivist knows (and as Amar accepts), 27 law is a mat- ter of social convention. 28 Only contemporary acceptance by officials and the public explains why, say, Congress gets to make law for the United States and the Queen-in-Parliament doesn’t. And as it happens, our social conventions don’t acknowledge any “unwritten Constitution”—at least not right now, and not in those terms. (Otherwise we wouldn’t need a book to persuade us.) Americans do recognize a variety of sources of law. Some are laid out in particular texts: treaties with foreign nations, say, or federal and state constitutions, statutes, regulations, and rules of court. Others lack textual foundations, such as customary international law or admiralty law, or principles of common law and equity. And all these sources stand in various relations to each other: written law generally trumps unwritten law, and within a given system (state or federal), constitutions trump everything else.^29 But the Constitution of the United States, the only one we’ve got, is a written document, and one that describes itself as such.^30
- 1 WILLIAM BLACKSTONE, COMMENTARIES *63 (“When I call these parts of our law leges non scriptae , I would not be understood as if all those laws were at present merely oral , or communi- cated from the former ages to the present solely by word of mouth.”).
- Id. at *64.
- See Monopoly: Parker Brothers Real Estate Trading Game , HASBRO, http: // www.hasbro.com / common / instruct / monins.pdf (last visited June 23, 2013).
- See A MAR , supra note 3, at 205.
- See generally H.L.A. HART , THE CONCEPT OF LAW (2d ed. 1994). I don’t use “social conven- tion” here in any technical sense. Cf. Richard H. Fallon, Jr., Precedent-Based Constitutional Adjudica- tion, Acceptance, and the Rule of Recognition , in THE RULE OF R ECOGNITION AND THE U.S. CONSTITUTION 47, 54 n.36 (Matthew D. Adler & Kenneth Einar Himma eds., 2009) (distinguishing various forms of conventions and related entities).
- Cf. Kent Greenawalt, The Rule of Recognition and the Constitution , in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION , supra note 28, at 1, 36–37 (describing a hierarchy of sources of American law).
- See Christopher R. Green, “This Constitution”: Constitutional Indexicals as a Basis for Tex- tualist Semi-Originalism , 84 N.D. L. REV. 1607, 1607 (2009) (arguing that the Constitution presents itself as “composed of language”).
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those rules may or not be rules of law (much less constitutional law); they might just be rules of English grammar, or of common legal usage at a particular time. Additionally, as I’ve discussed in prior work, the Constitution often interacts with unwritten law without actually turning it into constitutional law—whether by incorporating unwritten law by reference, by insulating unmentioned law from change, or by using defeasible language that can be defeated by legal rules the legislature can’t alter. 36 Many of the rules in Amar’s “unwritten Constitution” take one of these forms. And in each of these cases, the Constitution’s text might “intertwine” with un- written law in some way.^37 But that doesn’t mean we have to view that unwritten law as part of an unwritten constitution. Rather, it’s just ordi- nary unwritten law; the only thing that makes it special is the Constitu- tion’s written text.
B. Rules for Reading the Text
The Constitution can’t be read in a vacuum. To have written law, you always need something else outside the text. On Amar’s view, that something is the unwritten constitution, which includes “the basic tools and techniques by which faithful interpreters tease out the substantive meaning of the written Constitution.”^38 And some of the tools and tech- niques championed by Amar—such as “liquidating” the text through practice, or reading the Constitution holistically—have deep and wide- ranging consequences. Our interpretive tools are obviously crucial to our constitutional law. But that doesn’t make them part of the Constitution, written or un- written. They might just be rules of language, or similar conventions used by lawyers in a particular place and time. That we need these tools doesn’t show that our society, much less every society with a written con- stitution, has an unwritten constitution too.
1. Are the Rules for Reading in a Constitution?
No one reads the Constitution’s text in isolation. We can always imagine a “hardcore textualist,” who treats the document as “a crisply defined text with a neatly bounded and universally identifiable set of words,” refusing to “ventur[e] even an inch beyond [its] four corners.”^39 But that sola Scriptura approach^40 makes language incomprehensible.^41
- See Sachs, supra note 15.
- A MAR , supra note 3, at 20.
- Id. at 481.
- Id. at 63.
- See H. Jefferson Powell, The Original Understanding of Original Intent , 98 HARV. L. REV. 885, 889 (1985) (describing the Reformers’ rejection of interpretation).
- See Larry Alexander & Saikrishna Prakash, “Is That English You’re Speaking?”: Why Inten- tion Free Interpretation is an Impossibility , 41 S AN DIEGO L. R EV. 967 (2004).
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Text alone can’t establish that the text is in English (as opposed to an ar- tificial language deceptively similar to English),^42 that it’s a form of com- munication rather than a random pattern of marks, 43 that it’s properly taken as binding law rather than as a proposal, parody, or prose poem,^44 and so on. To use texts as law, we also need broad social agreement on those texts’ accurate content and legal validity, neither of which can be established by the texts themselves.^45 We don’t, though, need an unwritten constitution. To understand the Constitution properly, you need to understand late-eighteenth- century English—down to the very last detail about the semicolon.^46 Yet rules of English grammar aren’t rules of law, and so they certainly aren’t rules of constitutional law—written or otherwise. The same goes for many of the communicative practices specific to law, the “settled nuances or background conventions that qualify the lit- eral meaning” of a legal text.^47 Most of these are really just rules of le- galese, as opposed to English. But others may count as “law” under our rules of recognition. The common law, for example, provides that the repeal of a repealing statute revives the original act.^48 (For federal stat- utes, that’s been abrogated by 1 U.S.C. § 108.) Legal rules like these don’t have to be constitutional rules, even if they’re used to read a consti- tutional text. We can use common-law rules to construe statutes and constitutions, without pretending that the rules themselves suddenly gain the stature of statutes or constitutional provisions. They’re just common- law rules, which happen to offer clues as to a text’s meaning at the time it was written. That’s why, for example, we care about how the interpretive rules stood when a provision was enacted, not how they stand as a matter of law today. (If the common-law rule about repealing statutes evolved back and forth over time, we’d have to read new repeals differently, but we wouldn’t keep reconstruing old ones, discarding or resurrecting vari- ous ancient statutes as we go.) Think of it this way. When reading the Constitution, we might use the canon of expressio unius —for example, to conclude that the enumer-
- See id. at 974–75.
- See id. at 976–77.
- See Gary Lawson, On Reading Recipes... and Constitutions , 85 GEO. L.J. 1823, 1825– (1997).
- Cf. A MAR , supra note 3, at x (noting that we couldn’t even “properly identify the official written Constitution” without some degree of extratextual agreement).
- See , e.g. , Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional? , 90 CALIF. L. REV. 291, 334–52 (2002) (explaining the importance of semicolons for the existence of West Virginia).
- John F. Manning, The Absurdity Doctrine , 116 HARV. L. REV. 2387, 2393 (2003); see also A NTONIN S CALIA & BRYAN A. GARNER , READING LAW: THE I NTERPRETATION OF LEGAL TEXTS 51–339 (2012) (describing various canons of interpretation); Caleb Nelson, Originalism and Interpre- tive Conventions , 70 U. CHI. L. REV. 519 (2003) (discussing the importance of interpretive conven- tions).
- 1 BLACKSTONE, COMMENTARIES *90.
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a. Liquidation by Practice
Article II is famously opaque; it vests “[t]he executive Power” in “a President of the United States of America” without saying what that means.^52 Is it just the handful of powers enumerated in Sections 2 and 3? Is it a separate residuum of authority? Does the Vesting Clause let the President remove executive officers, or maybe recognize foreign nations? Amar holds that the Vesting Clause does “confer... a general re- siduum of ‘executive Power’ above and beyond [the] various specific presidential powers and duties” listed in the rest of Article II.^53 On Am- ar’s account, however, the Clause’s opaqueness was intentional: the pres- idency was “undertextualized” precisely so that George Washington, the most respected American of his day, could fill in the details through practice.^54 In other words, “the framers and ratifiers were deputizing Washington to clarify the Executive Article, subject to the broad advice and consent of the other branches and the American people.”^55 Based on Washington’s conduct and on debates in Congress during his term, Amar concludes that the President does have unilateral power to remove “indi- vidual department heads” at will.^56 These claims might seem surprising on first glance. But Amar’s supporting arguments fall within a wholly conventional framework. One interpretive convention that may have been used at the Founding was to resolve contested issues in light of subsequent practice, through a process known as “liquidation.” In The Federalist Papers , Madison suggested that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”^57 Hamilton, too, wrote that courts would have to “liquidate and fix [the] meaning and operation” of conflicting legal texts.^58 Caleb Nelson has suggested that liquidation may have been a widely shared component of “the founding generation’s own interpretive intentions”: should part of the text have an indeterminate meaning, “they expected subsequent practice to liquidate the indeterminacy and to produce a fixed meaning for the future.”^59 Perhaps the most famous case of a supposed liquidation is the “De- cision of 1789,” in which the House of Representatives debated the re-
- U.S. CONST. art. II, § 1, cl. 1.
- A MAR , supra note 3, at 310.
- Id. at 313.
- Id.
- Id. at 322.
- THE FEDERALIST NO. 37, at 236 (James Madison) (Jacob E. Cooke ed., 1961).
- THE FEDERALIST NO. 78, supra note 57, at 525 (Alexander Hamilton).
- Nelson, supra note 47, at 547.
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moval of executive officers.^60 At the time, Madison suggested to his col- leagues that their debate would serve as a “permanent exposition of the constitution.”^61 And, as Amar describes it, “Congress squarely acknowl- edged presidential authority to remove certain kinds of executive ap- pointees at will.” 62 The recognition power gets a similar treatment. Some have grounded that power in the President’s authority to “receive Ambassa- dors and other public Ministers,”^63 and so to decide whether to recognize the governments sending them.^64 But Amar grounds it in the practices of the Washington Administration, which chose to recognize the revolu- tionary government in France without consulting Congress, as presidents have done ever since.^65 If it was unclear who held this power at the Founding, perhaps Washington’s example liquidated the obscurity and settled the issue “beyond all doubt.”^66 These claims might be right or wrong. In form, however, they don’t actually represent part of an unwritten constitution, or an invisible Dele- gation-to-Washington Clause. If the Framers thought Washington would likely be the first President, and also that the first President would end up doing a lot of liquidating, then they may well have expected Washing- ton to have an outsized personal influence on the Constitution—without thinking that the document actually conferred that power on him, explic- itly or implicitly. More generally, if liquidation was part of the interpretive conven- tions under which the Constitution was written, then it may be a legiti- mate aspect of what the Constitution is —a document designed to be liq- uidated in a certain way, just as a treaty, contract, will, or deed is written with certain kinds of interpretive rules in mind. 67 Getting the interpretive conventions wrong could lead to a misreading of the document, just like mistakes about when it was written, or what language its authors and au- dience spoke. And if the liquidation convention really took account of practice in the way Amar describes, then we may well have to look to early practice to see which questions have already been liquidated, and which were left open for us to decide. So, even if liquidation were mandated by original interpretive con- ventions, 68 that wouldn’t make it part of an unwritten constitution. On this picture, we can’t understand the text correctly without considering
- See generally Saikrishna Prakash, New Light on the Decision of 1789 , 91 CORNELL L. REV. 1021 (2006) (describing these debates).
- 1 A NNALS OF CONG. 495 (1789) (Joseph Gales ed., 1834).
- A MAR , supra note 3, at 322.
- U.S. CONST. art. II, § 3.
- See, e.g. , Zivotofsky v. Clinton, 132 S. Ct. 1421, 1428–29 (2012) (discussing a party’s argu- ment).
- A MAR , supra note 3, at 316.
- Id. at 315–16.
- See Nelson, supra note 47, at 561–69; Powell, supra note 40, at 896.
- Nelson himself is skeptical on this point. See Nelson, supra note 47, at 552–53.
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Whether or not we accept these claims (or holism in general),^81 there’s nothing in them that suggests an unwritten constitution. Amar includes among various “unwritten sources” for interpretation the “prin- ciples and purposes implicit in various patches of constitutional text,” as well as “structural deductions from the constitutional system viewed ho- listically.”^82 These principles, purposes, and deductions may not be listed in the text, but they also don’t constitute unwritten law in the sense used here, because they have no independent legal force. (Think of a statuto- ry analogy: the fact that Congress intended X or Y isn’t itself a rule of law, but a fact potentially relevant to interpreting the law they did pass.) The only source of law here is the text, read intelligently and in a single sitting. Should the Nineteenth Amendment be read as a narrow rule, banning only discrimination in the franchise? Or should it be read broadly, as providing that “no law”—including prior constitutional amendments—“could henceforth treat males and females differently in the domain of voting rights”?^83 Amar’s broad reading could be right or wrong; in any case, the only piece of law being applied is the Nineteenth Amendment. The same is true of other readings urged by Amar. Do the voting- rights amendments confer only “a right to vote for legislators,” or also “a right to vote within a legislature” by running for office and standing for election?^84 Is the Fourteenth Amendment’s Citizenship Clause^85 merely a rule of nationality, or is it also an anti-caste rule, forbidding the govern- ment from “heaping disabilities or dishonor upon any citizen by dint of his or her birth status”? 86 These questions are deep ones, but they don’t go deeper than the text itself. Answering them, one way or another, is part of the ordinary project of constitutional interpretation. And once we’ve answered them, we’ll simply apply the rules we’ve found in the Constitution, not any exotic rules of unwritten law. Nor is a commitment to holism itself required by unwritten constitu- tional law. If the Constitution, or any particular amendment, had been originally understood not to be a holistic document—if holism were im- posed on it “from the outside,” so to speak—then we’d need some inde- pendent source of legal authority for reading it that way, over and above our usual method of reading old texts. That source of authority (whatev-
- For objections to holism, see generally Adrian Vermeule & Ernest A. Young, Commentary, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730 (2000). Pre- cise texts serve numerous conflicting purposes at once, none of which should be advantaged; holism can be the enemy of perspicuity or ease of application; holism places an impossible burden on drafters; there’s no reason to expect coherence from texts composed at separate times; and so on.
- A MAR , supra note 3, at 20.
- Id. at 287.
- Id. at 288. I don’t know if Amar would extend this argument to the Twenty-Sixth Amend- ment, overturning the age requirements for service in Congress.
- See U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they re- side.”).
- A MAR , supra note 3, at 150.
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er it is) might make it appropriate to call holistic interpretation a rule of unwritten constitutional law. But Amar quite clearly believes that struc- tural coherence was expected at the Founding, 87 even if the Founders failed to “underst[an]d the logical implications of the new American sys- tem.”^88 This historical claim, too, could be right or wrong. But if it’s right, then holistic interpretation simply gives effect to a text according to the rules prevailing at the time for interpreting such texts. That’s a pretty standard way of handling written law, and it suggests that holistic inter- pretation doesn’t come from an unwritten constitution.
C. Rules Explicitly Incorporated by Reference
A written constitution sometimes incorporates unwritten law by reference. When that happens, the unwritten law acts like a constitution- al rule, but it isn’t actually contained in the Constitution, and doesn’t have any constitutional status of its own. I’ve previously described such rules as a type of constitutional backdrop—a rule of law that’s not really constitutional in nature, but that’s protected by the text from certain or- dinary means of change.^89 Consider the Seventh Amendment. On the conventional reading, the “right to trial by jury” that the Amendment “preserved” is the right as it existed at Westminster in 1791.^90 If so, the ancient common-law rules of jury trial might be beyond Congress’s power to alter. But that doesn’t make them part of any constitution, written or unwritten. They’re just ordinary common-law rules—and a different rule, one that is found in the text, requires us to keep using them. (Amar’s alternate reading of the Seventh Amendment makes the point even more clearly: if the Amendment “preserve[s]” in federal courts the jury right as it cur- rently exists under state law, 91 then the jury rules themselves aren’t part of any constitution, being revisable through ordinary state legislation.) Incorporation by reference lets the text do a great deal very quickly, without having to spell everything out. In fact, several portions of Am- ar’s unwritten constitution are better understood this way. Consider three examples: the “lived Constitution,” the rights of jurors, and the ju- diciary’s enforcement powers.
1. Incorporation and the “Lived Constitution”
On Amar’s view, the “lived Constitution” protects Americans’ un- enumerated rights.^92 The Supreme Court has protected such rights in the name of “substantive due process,” which Amar describes as “bor-
- Id. at 27 (discussing M ‘ Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
- Id. at 286.
- See generally Sachs, supra note 15.
- See, e.g. , Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).
- See A MAR , supra note 3, at 166 n.*.
- Id. at 132.
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trine accordingly would just be doing their jobs: “recognizing new rights” wouldn’t be “amending the document,” but “applying it.”^104 Even Am- ar’s fifty-five percent rule, which grates most harshly on the lawyer’s ear, could be a perfectly rational response to a vague “regard as fundamen- tal” standard. For the same reasons, though, this hypothetical Ninth Amendment wouldn’t generate an unwritten constitution. Unenumerated rights would be protected precisely because a written Ninth Amendment refer- enced them. Incorporating ordinary Americans’ views on fundamental rights is no weirder, theoretically, than incorporating English jury rules under the Seventh Amendment, incorporating state property law under the Takings Clause, or incorporating the rules of algebra in calculating interest on tax debts. 105 The views of ordinary Americans don’t have any special legal force on their own; the only thing that would (hypothetical- ly) make them binding would be the Constitution’s written text.^106 Of course, all this skips over an important question: do the actual Ninth and Fourteenth Amendments say such things? Do they have an implicit Regard-as-Fundamental Clause? Amar’s reading is disputed, to say the least.^107 But whether it’s correct or not is a perfectly ordinary problem of interpretation. Because the “lived Constitution” lives or dies by a particular reading of the text, it isn’t really unwritten.
2. Incorporation and the Jury
In the Founders’ vision of government, the jury played a central role, allowing ordinary people to check and balance government pow- er.^108 But that system, Amar argues, has now been lost. Today’s juries have fewer powers, less information, and a weaker capacity for decision making.^109 In particular, today’s doctrine denies juries the right to acquit against the evidence,^110 showing disagreement with the law or mercy for the defendant—even though “the very point of jury trial is to ensure that American penal policy, both in gross and in micro, commands broad support among the citizenry.”^111
- A MAR , supra note 3, at 136 (emphasis omitted).
- See Leslie Green, Legal Positivism , in S TANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., Fall 2009), http://plato.stanford.edu/archives/fall2009/entries/legal-positivism (offering the interest example).
- The same is true of Amar’s analysis of the Equal Protection Clause. If ‘equal’ really means ‘equal, in light of contemporary social understandings of equality,’ then it’d be perfectly natural for courts to consider “broad understandings of social meaning.” A MAR , supra note 3, at 296.
- For contrary views of both amendments, see, e.g., Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment , 99 GEO. L.J. 329 (2011); Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment , 60 S TAN. L. REV. 895 (2008).
- See generally A MAR , supra note 3, at 431.
- Id. at 437–40.
- Id. at 432–33.
- Id. at 439.
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On Amar’s account, the Framers protected jury rights “in light of the post-Tudor history of the Anglo-American jury,” when the jury’s power to acquit against evidence was a crucial constraint on the Crown. 112 Though this history wasn’t “explicitly written into the original Constitu- tion or the Bill of Rights that immediately followed,” Amar argues that it “surely formed part of the implicit understanding of the words ‘jury’ and ‘grand jury’ that did appear in these documents.”^113 So, he concludes, the Constitution “is best read as presupposing an unwritten right of jurors” to nullify.^114 If Amar is right about the history, are these jury rights part of an unwritten constitution? If the nullification power had been part of the linguistic meaning of “jury” and “grand jury” (or of “Trial... by Jury”^115 more generally), then nothing unwritten is involved; it’s simply what the (written) Constitution requires. On the other hand, if the power to nulli- fy had been merely an incidental feature of jury trials, rather than part of what the word “jury” meant , then maybe it wasn’t written into the Con- stitution after all. Amar understands nullification as an “unwritten[] substratum of American constitutionalism.”^116 But there’s another possibility, namely that jury nullification (to the extent the history supports it) was a sepa- rate rule of unwritten law. As Amar notes, the Constitution’s references to juries “did not describe wholly new institutions being conjured into ex- istence.”^117 Rather, the reference to “Trial…by Jury” may have codified and incorporated by reference a recognized bundle of common-law rights associated with jury trial, whether or not these rights were linguis- tic components of the word “jury.” In other words, Article III and the Sixth Amendment might have worked like the Seventh Amendment, in- corporating and preserving various rules not spelled out in the text. (Similarly, the First Amendment might protect “‘the’ freedom of speech and of the press” through incorporation by reference, “affirm[ing] and declar[ing]” a “preexisting right” rather than creating one afresh.^118 ) If that’s right, then a jury today might have the power to nullify if and only if that power was recognized at common law—not because it’s a freestanding unenumerated right, but because the Constitution incorpo- rated it by reference. This reading aligns with Amar’s intuition that tra-
- Id. at 423.
- Id. at 424.
- Id. at 419.
- U.S. CONST ., art. III, § 2, cl. 3.
- A MAR , supra note 3, at 419.
- Id. at 424–25.
- See id. at 54 (emphasis omitted); see also United States v. Stevens, 130 S. Ct. 1577, 1585 (2010) (construing “‘the freedom of speech’ codified in the First Amendment” to exclude various “his- torically unprotected” types of speech); Crawford v. Washington, 541 U.S. 36, 54 (2004) (“Rather, the ‘right... to be confronted with the witnesses against him,’ Amdt. 6, is most naturally read as a refer- ence to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” (omission in original)); Sachs, supra note 15, at 1867.
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dies would have been using something other than “judicial Power.”^124 But the grant of judicial power might well have incorporated by refer- ence a residuum of conventional judicial powers, powers that were inci- dent to the judiciary in the same way that Madison and Hamilton thought the removal power incident to the Executive.^125 These powers may have included, for example, “the power to issue binding judg- ments... within the court’s jurisdiction”;^126 and we could read Amar as including other auxiliary powers in this class. If all that’s correct, then there’d be no need for an unwritten consti- tution to explain judicial doctrines implementing the text. On this pic- ture, when a court establishes a new doctrine, it’s using its incidental powers of determining procedures and establishing remedies. And the political branches’ inability, in some cases, to overturn what the court has done would thus be a function of the (written) Vesting Clause of Article III. This story assumes, of course, that such powers actually were inci- dental to the courts. That’s a historical question, and probably a contest- ed one. Federal courts haven’t always had a fully free hand to reshape procedures, remedies, and rules of evidence as they desire.^127 And Am- ar’s claim that courts can expand suffrage if the political branches have failed to do so seems in tension with other doctrines about enforcement discretion or the textual commitment of issues to coordinate branches.^128 More importantly, the relative silence of the text on issues of plead- ing and evidence doesn’t mean that those issues were wholly delegated to the courts. As Justice Breyer has pointed out, “silence is not ambiguity; silence means that ordinary background law applies.” 129 The ordinary background law might have imposed binding, rather than flexible, con- straints on the courts’ ability to craft new doctrines and to advance the purposes of substantive law.^130 But either way, it’d be ordinary law that decides, not an unwritten constitution.
- See John Harrison, Essay, The Power of Congress over the Rules of Precedent , 50 DUKE L.J. 503, 522 (2000) (making this argument in the context of stare decisis); cf. Sachs, supra note 15, at 1864 (making a similar argument).
- See Sachs, supra note 15, at 1859–63.
- William Baude, The Judgment Power , 96 GEO. L.J. 1807, 1811 (2008).
- See, e.g. , Process Act of 1789, ch. 21, § 2, 1 Stat. 93, 93 (requiring federal courts in common- law actions to follow the “forms and modes of proceeding” then used by the states in which they sat); Process Act of 1792, ch. 36, § 2, 1 Stat. 276, 277 (retaining that rule); Conformity Act of 1872, ch. 255, § 5, 17 Stat. 196, 197 (requiring dynamic conformity with the “practice, pleadings, and forms and modes of proceeding existing at the time” in state courts); Act of Jan. 2, 1975, Pub. L. No. 93–595, 88 Stat. 1926 (1975) (codified as amended at 28 U.S.C. app. (2006)) (establishing the Federal Rules of Evidence).
- See, e.g. , Nixon v. United States, 506 U.S. 224 (1993) (textual commitment); Heckler v. Chaney, 470 U.S. 821 (1985) (discretion).
- New Jersey v. New York, 523 U.S. 767, 813 (1998) (Breyer, J., concurring); accord id. at 783 n.6 (majority opinion).
- See supra note 126 and accompanying text.
1816 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013
D. Rules Implicitly Insulated from Change
Incorporating a rule by reference means mentioning it explicitly. But the Constitution can also insulate legal rules from change without even mentioning them, let alone specifying their content. So long as the text disables other actors from changing the rules in the usual way, the rules simply keep on going under their own power, enjoying constitu- tional protection without being named in the Constitution. 131 The simplest example involves the law of state borders. When two states border a changing shoreline, the Supreme Court determines the new border under traditional doctrines drawn from international law 132 — including, for example, rules distinguishing accretive from avulsive changes.^133 These rules aren’t set out in the Constitution’s text. Even so, Congress can’t easily alter them, at least as to existing shorelines. That’s because redrawing state lines created by past accretions and avulsions would reassign “Parts of States” to other states without consent— something expressly prohibited by Article IV.^134 In this way, the tradi- tional border rules function like constitutional rules, in that they’re hard to change (and might even require a constitutional amendment), but they have no constitutional force on their own. 135 Are any of the rules in Amar’s “unwritten Constitution” actually rules insulated from change? The discussion below identifies two exam- ples: Congressional contempt powers and majority voting.
1. Congressional Contempt
The Constitution lets each House of Congress “punish its Members for disorderly Behaviour.”^136 It doesn’t mention punishing nonmembers for contempt. Yet both Houses have exercised that power since the dawn of the Republic, arresting and jailing private citizens and even ex- ecutive officials.^137 The textual case for that power is extremely weak. Amar notes that each House can “determine the Rules of its Proceedings,”^138 which might imply some authority “to protect its core functions against outside inter- ference or defiance.” 139 But if that’s right, then every agency housekeep- ing statute would confer similar arrest powers. Likewise, the claim that
- See Sachs, supra note 15, at 1827–38.
- See, e.g. , New Jersey , 523 U.S. at 784.
- See id.
- See U.S. CONST. art. IV, § 3, cl. 1.
- See Sachs, supra note 15, at 1828–31.
- U.S. CONST. art I, § 5, cl. 2.
- See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); J OSH CHAFETZ, DEMOCRACY ’ S PRIVILEGED FEW : LEGISLATIVE PRIVILEGE AND DEMOCRATIC N ORMS IN THE B RITISH AND A MERICAN CONSTITUTIONS 222–34 (2007); Josh Chafetz, Executive Branch Contempt of Congress , 76 U. CHI. L. REV. 1083, 1128–43 (2009) [hereinafter Chafetz, Executive Branch Contempt ].
- U.S. CONST. art. I, § 5, cl. 2; A MAR , supra note 3, at 336.
- A MAR , supra note 3, at 336.
