America’s Unwritten Constitution: An Open Letter to Randy Barnett

 

Though I’m an avid reader of The Volokh Conspiracy, I have never posted on this (or any other) blog — until now. Eugene has kindly invited me to try this blogging thing on for size, and this week seems the perfect time to accept his kind invitation. The stars are all in line: This month marks both the 225th birthday of the Constitution and the 150th re-birthday of the Constitution, thanks to the Emancipation Proclamation of September, 1862, which signaled the beginning of the end of American slavery. Oh, and did I mention I have a new book out this month, America’s Unwritten Constitution: The Precedents and Principles We Live By, which one of the regular Volokh Conspirators just reviewed for the Wall Street Journal two days ago?

Here’s my plan for the week. Today, I am posting below a long response to Randy Barnett’s long review of my long new book, which my many fans (all four of them!) have been eagerly awaiting for a long time. (It has been seven years since I published my last book, America’s Constitution: A Biography, the prequel to my latest effort.) Tomorrow, I will discuss a few passages of my Unwritten Constitution book that build on Eugene’s work on the history of American freedom of speech — passages that also cast new light on the recent unpleasantness between Richard Posner and Antonin Scalia. On Wednesday, I will reprint the passage of my new book that takes aim at David Bernstein’s recent book on Lochner, and expand briefly on my critique of my old friend, David. On Thursday, I will offer a quick corrective to another YLS grad who hangs out on this site, Ilya Somin. On Friday, I will try to outflank Orin Kerr from the right, by summarizing the parts of the book that call for the immediate end to the exclusionary rule.

While I welcome the above-mentioned Volokh Conspirators (and others, if they so choose) to respond to my comments, I will probably not immediately reciprocate with quick replies to anything that anyone posts over the next few weeks. That’s because I will be having other conversations with other constitutionalists — most of them right-of-center — in other venues this week and next. Specifically, I will be having an hour-long discussion with Justice Clarence Thomas at the National Archives on Wednesday evening; will be debating Richard Epstein in NYC at lunchtime on Friday; will be discussing constitutional interpretation with Michael McConnell in DC Friday evening; will be addressing the students at Baylor University alongside Ken Starr on Monday, and will be doing a similar event at the University of Oklahoma with David Boren on Tuesday. (OK, maybe that last sentence was TMI — more the sort of thing that one tweets than blogs; remember, I’m still a newbie at all this.)

But if Eugene is game, then at some future point, I hope to return to this site to continue the conversations I aim to begin this week.

OK, on to my book and to Randy’s review. First, thank you, Randy, for taking the time to engage my book. Thanks also for saying that I am “masterfully creative in finding overarching themes that tie the [Constitution's] disparate clauses together;” for acknowledging that my “long-standing commitment to textualism makes [my] approach more interesting for constitutional conservatives — and much more difficult to dismiss;” and for describing my book in your concluding sentence as “highly engaging and thought-provoking.” And I think you correctly describe the book’s basic ambition and theme early on in your review. In a nutshell, I aim to show how faithful interpreters must go beneath, beyond, and behind the explicit text of the Constitution without ever losing sight of the text. The document does not tell us, explicitly, how it must be construed; and several of the most faithful and proper modes of constitutional interpretation involve more than clause-bound literalism. But even as unwritten constitutionalism properly supplements the text, it must never supplant it, or go against the terse text’s core meaning.

Alas, in your review you also say several things that I cannot accept. You consistently describe me and my book as “progressive,” but nowhere tell your audience about the many specific conclusions in this book that conservatives will especially like. Three of the book’s five blurbers, after all, are conservative icons — Steve Calabresi, Ken Starr, and Rick Brookhiser, alongside progressive superstars Laurence Tribe and Nadine Strossen. And Booklist‘s reviewer had a decidedly different — and in my view far more accurate — take on my book: “A sophisticated and comprehensive theory of constitutional jurisprudence that resists being construed along narrow political lines.”

For example, my book champions an individual right to keep a gun in one’s home for self-protection, a right deserving protection against both state and federal officialdom. The Supreme Court’s four most progressive members have consistently and unanimously opposed this right; by contrast, Justice Alito’s opinion for the Court affirming this right in McDonald v. City of Chicago favorably cited my earlier work on this topic six times, and Justice Thomas’s concurrence added a pair of additional approving cites. My book also features a slashing constitutional critique of the exclusionary rule, placing my views in line with — actually to the right of — Chief Justice Roberts and Justices Scalia, Thomas Alito, and opposed to the views typically championed by Justices Ginsburg and Breyer (and before them, Justices Stevens, Souter, Brennan, Marshall, et al.). The book also offers a reading of Lawrence v. Texas that shows why this case does not compel judicial recognition, at the present moment, of a constitutional right to gay marriage across the land.

None of the above facts makes it into your review; nor does the fact that in the twenty-five Supreme Court cases in which I have been favorably cited, the conservative Justices on the Court have cited me as often as — perhaps even more often than — the progressives. (So, too, on several occasions, conservative Senators such as Orrin Hatch, Trent Lott, and John Cornyn have invited me to testify on Capitol Hill.)

Randy, in one of your harshest lines, you say that “judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.” This is news to me, my friend. I personally am not a gun guy. I have never owned a gun. I have never gone hunting or shot at any living thing. I have not even touched a gun since becoming an adult. As a lad, I did learn respect for guns and gun owners in the Boy Scouts — but my analysis of gun rights in America in my book, and in previous work, is all about constitutional text, constitutional history, constitutional traditions, and current American norms as embodied in, among other places, the actual practices of my fellow Americans — many of whom do care deeply about guns in their homes — and the general pattern of state laws and state constitutions. On this topic, I aim to describe America’s actual Constitution, written and unwritten, not Amar’s utopian Constitution. America is a gun-loving nation, and for me that is a key fact, regardless of my personal views. So too, America is not yet a nation where gay marriage has generally prevailed in the several states. I personally regret that this is so, but this inconvenient fact is given considerable weight in the analytic framework I put forth for pondering unenumerated rights. So here, too, the interpretive rules I champion do not invariably “happen[] to agree with everything Akhil Reed Amar believes is right and good.”

Another example is even closer to home for you, given your involvement in the 2005 medical marijuana case of Gonzales v. Raich. I personally think that medical marijuana should be decriminalized, especially in situations such as the one in Raich. But as I say in the book, although the right of a “patient to use an otherwise illegal drug such as marijuana when a licensed physician has prescribed the drug to alleviate intense pain” is a right that has “considerable moral appeal to many thoughtful analysts and may one day come to persuade a majority of Americans and their elected lawmakers, that day has not yet arrived.” One final example — and there are many others I could invoke — involves the death penalty. I try to explain and justify why the Court struck down the death penalty in 1972, why it reversed course in 1976, and why its cases since then have gone back and forth on certain very specific issues regarding the death penalty (such as its use against low-IQ defendants). My account has nothing to do with my own views over time (which have stayed pretty constant); my account has everything to do with basic changes in the wider practices and attitudes in American living rooms, assembly rooms, court rooms, and jury rooms.

The zigging and zagging in this quadrant of case law does not mean that everything in the Constitution is up for grabs, and that unpopular written rights should be ignored by judges. You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”

Two other corrections, Randy, and then I’ll wrap up. First, you correctly note that I believe that unenumerated rights encompass more than “natural” state-of-nature rights, but you fail to tell your readers why I think that. First, I disagree with you that the word “retained” in the Ninth Amendment clearly meant only natural rights when this Amendment was adopted. And I cite some textual and historical evidence for my view. Second, and far more important, I believe that the Fourteenth Amendment clearly protects unenumerated rights, and it is clear that these rights were not limited to a narrow category of pre-existing state-of-nature rights. (I also explain how this Amendment limits Congress as well as the states, contra what Ilya has recently written – more on that on Thusday.) And I give some powerful examples that you simply ignore. For instance, the right of a criminal defendant to testify in his own behalf is not an enumerated right. Nor is it clearly implicit in the original Constitution’s text or history: In fact, at the Founding, no criminal defendant in America had such a right, in any state or federal court. Nor is this right a “natural” state-of-nature right; criminal trials with rules of evidence don’t really exist in the state of nature. Yet surely, I argue — and the Supreme Court unanimously agrees — that this unenumerated, non-natural right does properly exist in today’s America, and deserves protection against both state and federal officialdom.

Oh, and by the way, the right of a patient to receive medical marijuana from a duly licensed physician is not exactly a natural state-of-nature right either, because there are no state-licensed physicians in a state of nature; but that fact alone should hardly disqualify this right from judicial recognition, if indeed the American people generally come to embrace this right in the great mass of state legislation and/or the lived experiences of ordinary Americans.

You also say that I believe that “doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders.” Actually, I say something quite different, carefully distinguishing implementing rules of judges from the document’s pure meaning, and identifying a variety of ways in which this distinction matters in considering whether Congress can ever overrule the Court and whether the Court should ever overrule itself.

My book is a long one — and you only had a short time to read it and compose an early review. You faced considerable space restraints, and the ethics of journalistic book-reviewing generally don’t encourage reviewers to consult authors to make sure they’ve got the book straight. But Randy, despite the various ways in which I think you have misread my book, I am delighted that you are so eager to engage its ideas, and that you do clearly believe that other serious readers need to read and reflect on my book. The Constitution itself had all sorts of bugs in its first version that were eventually patched up later, and in the weeks and months ahead, perhaps both you and I will revise some of the positions we have staked out early on — you, in your review, and I in this response. So let the conversation continue!