Amar begins America’s Unwritten Constitution: The Precedents and Principles We Live By with the words, “The eight thousand words of America’s written Constitution only begin to map out the basic ground rules that actually govern our land.” He goes on to use as examples failure of the Constitution to state that racial segregation is inherently unequal or of the First Amendment to prohibit the president or state governments from abridging various freedoms. Amar points out that Constitution says nothing about notions such as the separation of powers and the rule of law. He contends that the document cannot be viewed in textual isolation. Rather, it must be examined in the light of other documents, precedents set by early presidents and congresses, modern American practices, and notable judicial decisions. America’s Unwritten Constitution is a provocative look at constitutional interpretation.The Bill of Rights is the Constitution’s centerpiece. Amar refers to it as “the high temple of our constitutional order.” In The Bill of Rights: Creation and Reconstruction, Amar discusses the history of the Bill and analyzes the document. He holds that the Bill of Rights was intended to empower popular majorities and not to protect minorities from majorities. He contends that only with Reconstruction and the 14th Amendment did individual rights take center stage. Amar argues that before Reconstruction the Bill of Rights was viewed as dealing with government’s structure, not individual rights. He reviews the thinking of the Founding Fathers and the changes that the 14th Amendment brought about in legal thought. Amar’s book is a provocative look at what many believe is the most important part of the Constitution.
Lawrence Tribe’s The Invisible Constitution takes a stance similar to Amar’s America’s Unwritten Constitution. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University, argues that the written document has provided only a small fraction of what Americans have come to understand about it. He states that the written document holds hints that lead us to the unwritten document’s meaning, giving us a fuller understanding of the Constitution. Tribe points out key court cases and historical events that have made the Constitution’s meaning clearer. The Invisible Constitution, like America’s Unwritten Constitution, is a provocative way of looking at the United States Constitution and how to interpret it.
Constitution 3.0 deals with technology’s effects on our civil liberties. Jeffrey Rosen, a law professor at George Washington University Law School, and Benjamin Wittes, a senior fellow in Governance Studies at the Brookings Institution, edited the book, which addresses how Americans can protect their constitutional rights, which were mapped out more than 200 years ago, in an era of cell phones, laptops, surveillance cameras, and GPS, among other technologies. Scholars in law, technology, and ethics have written the essays, which question whether technology has obliterated our privacy, our right against self-incrimination, and other rights.
Robert Dahl’s How Democratic is the American Constitution? questions whether the United States Constitution furthers democracy. Dahl, who was the Sterling Professor Emeritus of Political Science at Yale University (he died on February 7, 2014), notes that the Constitution is "a document produced more than two centuries ago by a group of fifty-five mortal men, actually signed by only thirty-nine, and adopted in only thirteen states." He continues by saying that the Founding Fathers distrusted democracy, left slavery in place, and limited the vote to white male property owners. He feels that two undemocratic elements remain in place, the electoral college and the United States Senate. How Democratic is the American Constitution? is valuable for giving readers a different perspective on the Constitution.
United States Supreme Court justice Stephen Breyer believes that the Constitution exists to help citizens participate in shaping government and the laws. He calls this process “active liberty,” and his book is entitled Active Liberty: Interpreting Our Democratic Constitution. Breyer feels that active liberty requires deference to Congress as well as recognizing changing popular needs. He points out that the Constitution’s flexibility is what has made it a success. He takes John Marshall’s view of the Constitution as a living document. Breyer uses examples from contemporary issues such as speech, federalism, and privacy to make his points.
Freedom of religion is one of the freedoms guaranteed by the Bill of Rights. However, what freedom of religion is and how it is to be protected have been hotly debated. Religious Freedom and the Constitution by Christopher L. Eisgruber and Lawrence G. Sager explore ways in which the rights of the religious and those of the secular can be respected. The authors call the process “equal liberty,” and it consists of respecting all faith communities. They apply their theories in a variety of situations that take in issues such as prayer in public schools, teaching the theory of evolution, and the Ten Commandments in classrooms. Religious Freedom and the Constitution at balancing the rights of the religious and the secular.
“Original intent” is a term that is in vogue in constitutional law. Lawyers and judges pore through the Constitution and other documents to determine what the Founding Fathers meant when they wrote the Constitution. A History of the American Constitution by Daniel A. Farber and Suzanna Sherry maps out the history of the concept of original intent by providing condensed documents on the Constitution and its major amendments. In addition, the authors provide background on the documents so that readers can do their own interpreting of original intent.Perhaps the most important of all of the documents that determine original intent are The Federalist Papers. These documents began life as articles in The Independent Journal and The New York Packet as well as in a collection of essays that were published in two volumes. Alexander Hamilton, James Madison, and John Jay attempted to influence ratification of the Constitution as well as discuss the broader political debate. Generations of political science and constitutional law students have read all or many of The Federalist Papers, which are almost certainly the most frequently read documents on original intent.
Check these works and others out of the Neumann Library.