What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.
“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.
Despite my admiration and enjoyment of America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.
To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation. New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.
But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right. It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty.