What I’ve Learned So Far

Before I offer some substantive riffs on Akhil Amar’s new book–The Unwritten Constitution, I thought I would point out some of the new (and cool) facts that I’ve discovered as a result of reading this (though I’m not done yet):

1.  There was more than one version of the Constitution circulated during the ratification debates.  Basically, this involved typographical differences, but a more important distinction involves the inclusion of the phrase “Year of our Lord” in one printing (to describe the year 1787) that was omitted from other printings.  Thus, there is a dispute over which version of the Constitution is the true one.

2.  In 1840, Congress refunded the fines imposed under the Alien and Sedition Act and called the statute unconstitutional.

3.  Casey‘s dicta stating that “a decision to overrule [a precedent[ should rest on some special reason over and above the belief that a prior case was wrongly decided” has never been cited by a majority opinion of the Court.

Next week I’ll probably talk about some of my criticisms of the book.

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3 Responses

  1. Dear Gerard,

    I read your recent post on Professor Akhil Amar’s new book. (https://concurringopinions.com/archives/2012/09/what-ive-learned-so-far.html) I am in IRELAND now. I don’t yet have a copy, as it will not be printed in the Common Travel Area until sometime next month. But I have seen copies of drafts of Amar’s book. He presented several chapters as working papers and the papers are available on the internet. I have attached a draft copy of a chapter of his book. (See http://lawweb.usc.edu/who/faculty/workshops/documents/Amarspaper.pdf)

    There Amar wrote:

    Let us put aside, for a moment, the iconic parchment, which is only a ceremonial document, and focus instead on the official printed Constitution—the democratic one, the legal one, the one actually ratified by the people. The September 28 print sent out to the state ratifying conventions did contain a typeset list of the Philadelphia signatures, preceded by the very same dating words [the Attestation Clause] that have caused all the shouting.
    But are these words part of the legal Constitution itself, or are they actually something else, akin to other documents that accompanied the written Constitution yet were not part of it? Although no prominent debater has cleanly posed this question, it gets us to the crux of the matter.

    Draft at 89 (footnote omitted).

    There are two primary versions of the Constitution under discussion here: the parchment version (the signed version at the national archives) and the printed archetype (the printing that the Charles Thomson, Secretary of the Articles Congress, sent the States to ratify). In the passage above, Amar states that both versions had the Attestation Clause and the signatures. His point is that the Attestation Clause and signatures are not part of the operative legal document. Rather, the Attestation Clause and signatures only attest to the work product of the Federal Convention, and were not part of the (legal) Constitution itself. I think his claim odd, but whether Amar’s interpretive claim is right or wrong, in his draft paper, he did NOT take the position that the Attestation Clause was absent from either of the two primary authorized/official versions of the Constitution. I really doubt that he changed his mind on this issue. It is primarily a question going to the historical record, not interpretation.

    Can I ask you to check to see if you have correctly represented the position Amar took in his book. FWIW, I found the flow of Amar’s language and his rhetoric (in his draft paper) difficult to negotiate. If the error is yours, I, at least, do not fault you.

    Seth

    Seth Barrett Tillman
    Nat’l Univ. of Ireland Maynooth, Lecturer of Law
    Ollscoil na hÉireann, Má Nuad
    http://law.nuim.ie/staff/mr-seth-barrett-tillman
    http://ssrn.com/author=345891
    http://works.bepress.com/seth_barrett_tillman

    Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 NW. U. L. REV. COLLOQUY (forthcoming circa 2012-2013), http://ssrn.com/abstract=2012803

    http://www.dorfonlaw.org/2012/08/coda-on-dual-service-in-congress-and-as.html (Lederman-Tillman in comments)

  2. Joe says:

    I think #3 is a reasonable policy but the book (from the Amazon preview I could glance at) does seem to reasonably suggest the opinion took it too far as some sort of set “rule,” and it was one of the weak parts of the plurality that was taken to somewhat sanctimonious extremes.

    #1 was probably a Democratic plot.

  3. Seth Tillman says:

    Dear Gerard,

    I read your recent post on Professor Akhil Amar’s new book. (https://concurringopinions.com/archives/2012/09/what-ive-learned-so-far.html) I am in IRELAND now. I don’t yet have a copy, as it will not be printed in the Common Travel Area until sometime next month. But I have seen copies of drafts of Amar’s book. He presented several chapters as working papers and the papers are available on the internet. I have attached a draft copy of a chapter of his book. (See http://lawweb.usc.edu/who/faculty/workshops/documents/Amarspaper.pdf)

    There Amar wrote:

    Let us put aside, for a moment, the iconic parchment, which is only a ceremonial document, and focus instead on the official printed Constitution—the democratic one, the legal one, the one actually ratified by the people. The September 28 print sent out to the state ratifying conventions did contain a typeset list of the Philadelphia signatures, preceded by the very same dating words [the Attestation Clause] that have caused all the shouting.
    But are these words part of the legal Constitution itself, or are they actually something else, akin to other documents that accompanied the written Constitution yet were not part of it? Although no prominent debater has cleanly posed this question, it gets us to the crux of the matter.

    Draft at 89 (footnote omitted).

    There are two primary versions of the Constitution under discussion here: the parchment version (the signed version at the national archives) and the printed archetype (the printing that the Charles Thomson, Secretary of the Articles Congress, sent the States to ratify). In the passage above, Amar states that BOTH versions had the Attestation Clause and the signatures. His point is that the Attestation Clause and signatures are not part of the operative legal document. In other words, the Attestation Clause and signatures only attest to the work-product of the Federal Convention, and were not part of the (legal) Constitution itself. I think his claim odd, but whether Amar’s interpretive claim is right or wrong, in his draft paper, he did NOT take the position that the Attestation Clause was absent from either of the two primary authorized/official versions of the Constitution. I really doubt that he changed his mind on this issue. It is primarily a question going to the historical record, not interpretation.

    Can I ask you to check to see if you have correctly represented the position Amar took in his book. FWIW, I found the flow of Amar’s language and his rhetoric (in his draft paper) difficult to negotiate. If the error is yours, I, at least, do not fault you.

    Seth

    Seth Barrett Tillman
    Nat’l Univ. of Ireland Maynooth, Lecturer of Law
    Ollscoil na hÉireann, Má Nuad
    http://law.nuim.ie/staff/mr-seth-barrett-tillman
    http://ssrn.com/author=345891
    http://works.bepress.com/seth_barrett_tillman