The Bill of Rights guarantees Americans certain individual rights. Akhil Reed Amar, Sterling Professor of Law at Yale Law School, explained that the Constitution also ensures additional enumerated rights. On Friday, November 2, 2012, Amar addressed a collection of Notre Dame Law faculty and students. The lecture was entitled “America’s Unwritten Constitution: The Precedents and Principles We Live By” and featured Amar’s recently released book, America’s Unwritten Constitution.
Per the book’s website, “Amar takes readers on a tour of our nation’s unwritten Constitution, showing how America’s foundational document cannot be understood in textual isolation.” In addition to judicial decisions, political precedents, and common practices, sources include documents such as “the Federalist papers, William Blackstone’s Commentaries on the Laws of England, the Northwest Ordinance of 1787, Lincoln’s Gettysburg Address, and Martin Luther King, Jr.’s I Have a Dream speech.”
One topic Amar discussed was the continued importance of the Almighty. “God appears in five of our six texts,” Amar said. Moreover, God’s exclusion in Brown v. Board of Education, the Supreme Court case famous for ending segregated schools, can be explained as the Court’s secular, anti-Establishment doctrine.
Perhaps most notable is God’s relevance with regard to the Founding Fathers. Amar explained that while the Constitution does not explicitly endorse religion, “neither is it an anti-religion document.” Furthermore, Amar lectured that the signers of the Declaration of Independence risked treason when they signed a document professing “certain unalienable Rights” guaranteed by their “Creator.” “Proverbially, there are no atheists in foxholes,” Amar said.
In addition to religion and a variety of other topics, Amar lectured on federalism, specifically the famous privacy cases. Amar said of religious clauses, “the First Amendment resembles the 10th Amendment.”
He further highlighted unenumerated rights by discussing privacy cases and specifically, Griswold v. Connecticut, an influential Supreme Court case involving birth control. “Seven of nine [justices] voted for sex privacy,” Amar said. With humor, he later remarked that the right to “assemble on a bed” was indeed not the intent of the First Amendment.
Concurrently, Amar expressed disapproval of Justice Harry Blackmun’s opinion and argument in Roe v. Wade, the Supreme Court case which (in)famously allowed abortion. “[The] best textual foundation for lived constitution was not the overused due process clause but the overlooked privileges and immunities clause,” Amar stated. “Consequently, Roe is more controversial than other enumerated rights cases.”
As previously mentioned, Amar discussed numerous other issues related and unrelated to his book and the Constitution’s unenumerated rights. When answering audience questions, he delved into issues pertaining to the Slaughter-House cases and expressed personal thanksgiving for the rights extended to those born in America – of which he is a personal benefactor.
A final example of Amar’s clout and expertise occurred during the question and answer session. Responding to an audience member, Amar expressed his scholarly disagreement with the Supreme Court for the prominent Bush v. Gore decision. Since that decision, Supreme Court Justice Antonin Scalia has encouraged dissenters to “get over it.” Amar, after explaining the reasons for his disagreement, concluded that the particular decision caused him to lose trust in some of the Supreme Court’s justices.
The question epitomized Amar’s impressive familiarity with not only the issues, but his substantial clout within the legal field. Without doubt, the Notre Dame Law Program on Constitutional Structure and Constitutional Studies minor program should be commended for attracting a potential Supreme Court justice.
Scott Englert is a senior political science and economics major. Regardless of party affiliation, he hopes that you voted and participated in the 2012 election. For questions, comments, or concerns, please contact him at senglert@nd.edu.
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