America’s Unwritten Constitution

Common Law and Constitutional Exceptionalism

The significance of James Stoner’s Forum essay on the common law, with the two responses by Hadley Arkes and John McGinnis, is made even clearer by recent events. Commentary on the sad passing of Judge Robert Bork and three reviews of Akhil Amar’s new book, America’s Unwritten Constitution, by Robert George, Jeremy Rabkin (link no longer available), and Lino Graglia provoke further reflections on the place of law and the courts within constitutional government. At the heart of the dispute is the extent to which legal interpretation, including of course constitutional jurisprudence, can exist apart from political philosophy. And this no mere academic dispute raises the profoundest questions of how we might defend and expand our fading freedoms.

Stoner’s concern for common law is an essential historical inquiry but as well part of a broader attempt to recover the meaning of the American founding for both theory and contemporary practice. Professor McGinnis finds troubling the potentially expanding and arbitrary power in the content of contemporary common law, while Professor Arkes would further develop Stoner’s argument, to embrace specific consequences of natural law reasoning. Among them, and the work of other scholars, they bring out major schools of interpretation put forth by conservative legal scholars.

The Nine Unwritten Constitutional Lives of Akhil Reed Amar

The central question of constitutional law is the role of the Supreme Court in our system of government. Yale law professor Akhil Reed Amar’s America’s Unwritten Constitution: The Precedents and Principles We Live By argues for a role even more expansive, if possible, than at present.

Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges. America’s Unwritten Constitution rejects that limitation.

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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