America’s argument over the meaning of its Constitution started before the document was even ratified. Between October 1787 and May 1788, Alexander Hamilton, James Madison, and John Jay released a series of 85 essays now known collectively as The Federalist Papers. Published anonymously in newspapers and pamphlets under the pseudonym Publius, these pieces represent one of the earliest sustained efforts to explain the United States Constitution, which was then still being considered by state conventions. Although the governing blueprint was soon approved, the battle over its meaning rages on.
Today that long-running debate is largely organized around two competing ideas. On one side is a school of thought known as living constitutionalism, which holds that the document’s meaning must evolve to meet modern needs. Don’t let the dead hand of the past strangle the present, proponents of this view say. On the other side is the doctrine known as originalism, which maintains that the Constitution should be interpreted according to its meaning at the time it was adopted. If you want the text to evolve, originalists will tell you, there is a formal amendment process spelled out in Article V.
In his strange and fascinating new book America’s Unwritten Constitution, Yale law professor Akhil Reed Amar offers something of a third way, a liberal twist on originalism that draws heavily from both approaches. “Too often, each side shouts past the other,” Amar writes, “and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontexual—unwritten—principles and practices.” Despite his best efforts, Amar is unlikely to make peace between the two camps.
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