Reading Between the Lines of the Constitution

Legal scholar Akhil Reed Amar explains how implicit values, precedents, and common practices have become part of the U.S. constitutional system.

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September 17 marked the 225th birthday of the U.S. Constitution. The document is revered by Americans as the embodiment of democratic principles that have governed the country for centuries. But many familiar freedoms, including the right to privacy and presumption of innocence, cannot be found in the written document. In America's Unwritten Constitution: The Precedents and Principles We Live By, Akhil Reed Amar shows how implicit values, precedents, and common practices have become part of the constitutional system. The Yale University professor recently spoke with U.S. News about the unwritten constitution and how he thinks it will influence today's political issues like same-sex marriage. Excerpts:

What is a common misconception about the Constitution?

Most Americans may not understand just how much an unwritten constitution supplements the written. They might think that all our basic rights and rules are clearly identified in the written Constitution. Most Americans might be surprised to learn that all judges go beyond the written Constitution.

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Which cherished American principles are not actually in the Constitution?

The written Constitution does not say "separation of powers" or "federalism" or "limited government" or "checks and balances." It doesn't say "proof beyond reasonable doubt" [or] "one person, one vote."

So where do these principles come from?

Sometimes they come from the Constitution read as a whole, things that are in effect principles that we deduce by reading between the lines. Separation of powers is one of those. There's Article I, that's the Legislature. A separate Article II, that's the Executive [branch]. A separate Article III for the Judiciary. So if you read the Constitution as a whole, you might see there is an idea of separation of powers even though no sentence, no clause says so.

What documents do judges rely on for interpretation?

Judicial cases; important presidential pronouncements like the Emancipation Proclamation; iconic unifying symbolic documents like the Declaration of Independence; the Gettysburg Address; the Federalist Papers; landmark judicial decisions like Brown v. Board of Education. Those are all important texts that help complete the written Constitution.

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How will today's political hot topics get decided using both the written Constitution and the unwritten one?

The argument for same-sex marriage would build on the word "equal," which is an important feature of the written Constitution. The written Constitution, however, doesn't fully specify all the ways in which our system has to be equal. It has to be equal on grounds of race, and so now blacks and whites can marry each other. That wasn't always the case. Now the question is, does it also have to be equal on grounds of sexual orientation? One important source on enumerated rights is lived American practices. Certain things weren't common at the founding but they became common later, and courts recognized them as rights when they became common.

For example?

Two-hundred twenty-five years ago, no criminal defendant could take the stand on his own behalf. There was an evolving state-by-state practice that the Supreme Court eventually nationalized. And I predict the same thing will happen with same-sex marriage. The word "equal" in the 14th Amendment will be read in light of evolving state practices in the same way that words like "due process" were read in the light of evolving practices on the right of a defendant to testify. And that's the interaction of the written Constitution and unwritten constitution. The written Constitution is read in light of lived experiences.

[See a collection of political cartoons on gay marriage.]

Is the written Constitution still relevant?

When the written Constitution was adopted, it was nothing less than the most democratic deed in the history of planet Earth. Before 1787, there's practically no democracy in the world. Today, over half the planet [is democratic], and that's because of what happened in America in 1787-88. It's the hinge of modern history, and it's just the beginning. Remember, our Constitution isn't merely a document from the 1780s, it's [been] amended by a later Bill of Rights, by amendments after the Civil War, by 20th-century amendments providing full women's suffrage and the 18-year-old vote. [An] inter-generational compact, from the founding to the present, it sets out all the basic rules by which we govern ourselves as a society. It's the legal world in which we live.