The subtitle of Akhil Amar’s book, “Timeless Lessons for the Issues of Our Era,” describes an interesting problem faced by a Constitution like ours. The Constitution has to be timeless, in the sense of straddling our history past and future, from its original framing in 1787 for as many centuries hence as we expect the republic to endure. But it’s not just an abstract inscription on a pediment. Every generation needs to bring it into focus to resolve controversies that erupt in the particular circumstances of a particular day. Our yearning for something like an immemorial Constitution compounds a desire for continuity, respect for a generation of statesmen at the founding whose like we do not expect to see again, and our distrust of many of the current judges and politicians. At the same time, we need a Constitution that is relevant to our present concerns, if not dictated by them—one that prescribes intelligent solutions to the unprecedented problems that we face. In Amar’s words, the Constitution has to be both timeless and timely.
That’s a tall order, and it is not always easy to get the balance right. Constitutional originalists cling to the understanding of the constitutional text as it was framed and ratified by politicians and voters 229 years ago. They say we should use eighteenth-century understandings to regulate our handling of issues like election-hacking, counterterrorist surveillance, the exclusion of refugees, and same-sex marriage. Using anything more up-to-date would be a betrayal of our constitutional heritage.
Akhil Amar is a professor of law at Yale, where he has taught for more than thirty years. He counts himself as something of an originalist, though he says he’s a liberal originalist. What’s that? Well, he doesn’t think it possible to dismiss out of hand the original understanding of the constitutional text. How else would we even begin to know what the Constitution was referring to? The right to bear arms—is that something about having detached ursine limbs in one’s taxidermy collection or is it a misspelled right to roll up one’s sleeves in the sunshine? (Please: these are Amar’s examples, not mine.)
On the other hand, even the most dogmatic originalism has to give equal attention to those parts of the text laid down in the nineteenth and twentieth centuries. An originalist’s Constitution can’t just be the words of 1787 or 1791, when the Bill of Rights was added. Ours is “a temporally extended text” and its eighteenth-century provisions have to be read in light of “the purpose and spirit and logic of later amendments.” That’s a progressive assignment, says Amar, because
later generations of ordinary Americans mobilized to enshrine in this terse text an end to slavery, a sweeping guarantee of equal birthright citizenship, an emphatic commitment to protecting civil rights against all levels of government,…
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