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20131012 America’s Unwritten Constitution

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The main point of this book is that American Constitution should not and cannot be used and understood outside of unwritten rules and mores of culture at the any given moment, so with changes in this culture overtime the written text is read and perceived differently even if not a word had changed.

Akhil Amar starts with detailed legal review of constitutional issues of impeachment trial of Andrew Johnson. He makes pretty convincing case that the text of written constitution if taken literarily could conceivably lead to situation in which Andrew Johnson would preside as judge in his own case. This logical outcome of written text contradicts not only to all cultural traditions, but also to simple common sense. So the first lesson of this case is necessity of dialogue between written Constitution and unwritten Constitution, which includes various principles implicit in the text.

The second case used for analysis: McCulloch vs. Maryland related to state’s claim to tax Bank of United States – federal organization. Here chief judge Marshall established option of deriving rules not from the written text, but from “broad purpose of document”. Here is the logic: Step 1 – purpose of constitution security of the people; Step 2 – Creating central bank fit into this purpose; Step 3 – Therefore central bank is constitutional. I think it is one of the earliest examples of pulling constitutional rabbit out of the top hat. Needless to say that not everybody agreed with this logic and it took more then a hundred year before supporters of central bank achieved final victory in form of establishment of Federal Reserve System, and, after another 100 years, it is still not clear whether FED increased or decreased economic security of the country.

Other cases reviewed in this chapter involve freedom of speech and executive power. They all lead to one conclusion by author – the clause-bound literal interpretation of constitution fails.

The second chapter provides an interesting take on how the Constitution became the law. The one of the most important characteristic of this process was unabridged free speech of everybody involved and interested in process. This was a great break off from all known traditions including well-established British tradition of Parliament making laws and people just accepting it. The tradition of free speech with which American constitution started was not formed easily. Long after the Constitution become law the attempts by people in power to limit free speech continued, and so far all of them from Sedition Act of John Adam’s administration to “Fox News is not a news organization” of Obama’s administration failed and failed quite miserably. Another interesting things that was not well understood before, is that 9/13 rule of states ratifying constitution was not binding on states that voted NO. Actually 2 states Rhode Island and North Carolina declined to ratify the Constitution in 1787-88 and joined the Union later. In other words majority decision was binding only on states that vote for it. It would be great if such rule were expanded to individuals. In this case we would reed of the worst problem of democracy – people voting to give themselves money of other people.

The chapter three is about constitutional status of textually unnamed or underspecified rights. Such rights from property law to criminal law are based mainly on common law traditional for British culture. In this case it is not unusual for judges just attach part of constitution to whatever rules or rights they feel like creating. A good example of such situation reviewed here in details is the rule of exclusion of reliable physical evidence if it was obtained in violation of law. Neither Constitution nor common law provided for such option, but nevertheless this rule was successfully established and is maintained because it is what legal establishment wants.

The chapter four is all about the greatest discoverer of constitutional rights and privileges that nobody knew about before him – Earl Warren and his court. The legal revolution that occurred in 1950-60s was based on pretty much complete disregard of actual text of document and implementation of new rules that temporarily winning liberal establishment deemed proper. To say truth the previous conservative judges were not absolutely dedicated to the text either, but Warren’s court revolution was breathtaking. We can see it even now when the newest addition to the court Elena Kagan could not articulate anything hypothetical that government cannot do, logically stating that government has tyrannical power and constitution is just meaningless piece of paper which should be referred just for show.

The chapter 5 explores relationship between text and judicially crafted unwritten doctrine. More specifically – it looks at how precedent is treated in new decisions and when it is considered binding or not. There are lots of interesting intricacies in this discussion, but the bottom line is simple – whenever majority of court wants disregard previously established precedent and has support of other powers, it does it. The example used to demonstrate it is cases of segregation and Supreme Court’s change of position to completely opposite over period of a few dozen years.

The chapter 6 discusses a symbolic meaning of American Constitution as document, which helps to forge unity of nation that includes millions of people of completely different races, cultures, religions, and attitudes. This symbolic constitution includes not only Constitution per se, but also Declaration of Independence, Gettysburg address, and many other things that are America. The chapter provides detailed analysis of 6 such texts.

The chapter 7 dedicated to Ladies – the detailed review of process of expansion of individuals included into notion of American people which started with adult propertied white males and grew wider and wider to include the biggest part of population – ladies.

The chapter 8 reviews process of establishment of precedents of American republic starting with multiple precedents established by George Washington.

The chapter 9 is about American Institutional Constitution – the way of interpretation of government practices. This is pretty much about real distribution of power between individuals and groups who hold positions in institutions of power – Congress, Senate, Presidency, Supreme Court, and others.

The chapter 10 gives a very nice review of history and working of American two-party system. It was quite a process, but the one most important thing that could be inferred from this is that any political movement that want to become relevant has to take over one of two parties. We now at the very interesting point of American history when coalition of upper class socialist-democrats and underclass national-socialists took over Democratic party and are trying to implement their objectives – expansion of government with many positions of power to implement their utopias for upper class liberals and redistribution of wealth from middle class to them for national-socialist underclass. In its turn the Republican party is now in transition from party of conservative plutocrats who until recently happily enjoyed their wealth paying a little bit down to lower classes in form of compassionate conservatism, to the party of enraged middle class who are mad as hell and will not take any more of redistribution of wealth from them to upper class for their luxuries and utopias and to underclass for their non-working, even if miserable, living.

Chapter 11 – Conscientious Constitution is all about good feeling like rejection of death penalty in principle even in rejection of compliance with existing law as demonstrated by justices Brennan and Thurgood Marshall. It is also about juries and their power of law nullification demonstrated on many occasions over history of America. It is also about pro defendant asymmetry, which mainly exists in theory, while helping a lot in practice to well-connected and wealthy defendants and being practically nonexistent for vast majority of defendants. It also spends quite a bit of space on amendments process and on conscience of judges.

The final chapter 12 is about America’s Unfinished Constitution or, in other words about future changes that Akhil Amar envisions in American Constitution. He believes that it will be expanding into direction of more rights and inclusion. For example he believes into expansion of constitution to allow immigrant to become eligible for presidency, that we will soon rid of electoral college if not by changing constitution, then by going around it at the level of states when all state electors go to winner of popular vote. He also dedicates quit a bit of text to interaction between states and federal power and seems to believe that progress means decreasing role of states and increase of power of federal government as it did happen over last 100 years. I see it differently. I think that this century will be different and we’ll see decreasing power of federal government after huge government enterprises of XX century like big military, social security, and similar things will go down crashing. We’ll go away from the way of utopian thinking of upper classes isolated from real life by their wealth and/or academic environment into direction of thinking of middle class people who are not isolated from consequences of their mistakes and know very well that future is unknown and all experimentation should be not big and bold, but small and cautions, done at the level of state or even more local level. And when dust settle, we’ll see new refreshed constitutional order dictated by middle class for which good life now is much more important then future progress which will take care of itself, providing we took care about current situation now.


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