Akhil Reed Amar thinks that Americans need to be cognizant of two constitutions.
At his 4 p.m. lecture today in the Hall of Philosophy, he’ll explain just what he means by that.
“We’ll be talking not just about the formal written Constitution, but the unwritten constitution — how things really work,” Amar said. “The written constitution doesn’t say ‘Democrat’ or ‘Republican’, but that’s our world. That’s our Constitution, that’s how our government is constituted.”
Amar, the Sterling Professor of Law and Political Science at Yale University, is the author of several books concerning the Constitution, his most recent being published in 2012, called America’s Unwritten Constitution: The Precedents and Principles We Live By. His lecture will mark the 10th year of Chautauqua Institution’s Robert H. Jackson Lecture on the Supreme Court of the United States.
He plans to address how “the rules have changed” since Jackson was last on the Supreme Court in 1954.
“In the old days, justices were often former politicians,” Amar said. “Now they’re former judges, and not just former judges, but former judges who all went to pretty fancy schools and have very elaborate judicial careers before they become justices. And that’s just not the world of Robert Jackson.”
Jackson is an important figure in the discussion of the judiciary, as he represents both a change and a riff in the status quo.
“In some ways, he foreshadows the modern world,” Amar said. “Robert Jackson himself wasn’t a clerk. He didn’t go to a fancy school, wasn’t even a judge before he was a justice, so it’s a lecture on how the process of judicial selection has changed in the last hundred years and how Robert Jackson himself is an interesting pivot point in that change.”
Amar will also focus on how various governing staples are both present and absent from the actual words of the Constitution.
“How about the idea that racial segregation or racial separation is inherently unequal? How about the idea that, of course a criminal defendant has the right to take the stand in his own defense?” Amar said. “The Constitution doesn’t say that, but that’s a bedrock idea.”
Amar said the Constitution doesn’t, in so many words, guarantee all sorts of unenumerated rights that every American takes for granted.
“You have a right to have a pet dog, to play the fiddle, to raise your children, to enjoy marital happiness with your spouse,” Amar said. “None of these is necessarily an absolute right. It can be outweighed, but these are all rights of today, recognized by courts, of constitutional significance although the words of the Constitution don’t specify.”
A better understanding of these unenumerated rights, what they are and where to find them, Amar said, is what he hopes people will learn after hearing him talk or reading his books.
“I want people to be able to understand both the written and unwritten principles and how they work together … to understand that the written Constitution doesn’t have all the answers,” he said. “We have a written and an unwritten constitution, and I want my audience to understand both.”