'America’s Unwritten Constitution'
By Akhil Reed Amar
Basic Books, $29.99, 615 pp.
Akhil Reed Amar’s America’s Unwritten Constitution is full of fascinating history, as well as novel and often persuasive analysis of how our written Constitution blends with an unwritten one to form a coherent whole. Amar argues convincingly that constitutional interpretation cannot rest exclusively on the actual text of the Constitution and the original understanding of its provisions. But he also argues that Supreme Court justices act inappropriately if they impose legal doctrines that are genuinely inconsistent with the written text. Such decisions, he asserts, will almost inevitably be abandoned.
America’s Unwritten Constitution can be read as a supplement to Amar’s earlier book, America’s Constitution: A Biography (2006), which was about the written Constitution—the circumstances of its composition, what it meant then, and what it has come to mean since. The new book concerns the binding constitutional principles that reach beyond the clear words of the text. These principles fill in gaps in the written document, show how important amendments bear on earlier provisions, and take account of other historical developments that reflect changes in ideas about...