Author Archive | Prof. Akhil Reed Amar, guest-blogging

A Too-Quick Response to David and Ilya

Earlier this week, I said that I probably would not have time to respond immediately to any comments that my fellow Conspirators might post in response to my guest blogs this week.  And in fact, I don’t have time to do a proper job — I am on the road this week — but the temptation to say just a bit in response to my old friends David and Ilya is irresistible. David, I continue to think that Lochner is an anti-redistributivist case because the opinion of the Court says so in its language about a “labor law, pure and simple” — that is, a law to favor “Labor” at the expense of “Capital” as these terms were widely used at the time.  Explicit anti-distributivist language also appears on the surface of the Court’s opinion in  Coppage v. Kansas in which the Lochner-era Court condemned legislative efforts to level “inequalities of fortune.”  The Court was willing to allow all sorts of limitations on freedom of contract — safety regulations based on paternalism, other regulations based purely on moral objections to various contracts (such as prostitution contracts), etc.  The idea was not libertarianism pure and simple.  A key factor in several of the most objectionable cases was simply the idea that redistributivism was an improper government purpose.  You say that in my earlier work my “citation was to a famous, well-cited article by Cass Sunstein, Lochner’s Legacy.”  Not quite.  I cited to three works.  Here is an endnote from my prequel, America’s Constitution: A Biography:


In addition to Lochner itself, see Coppage v. Kansas, 236  U.S. 1, 17-18 (1915), in which the Lochner-era Court condemned legislative efforts to level “inequalities of fortune.”  For what it’s worth, my reading of Lochner is the orthodox one.  For similar

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On Equality and the Federal Government: A Reply to Somin

In a recent posting, Ilya Somin says the following: “Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the [Fourteenth] Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted.”

In Chapter 4 of my new book, I offer a different account:

The [Fourteenth] Amendment’s first sentence creates rights of equal citizenship that apply against the feds as well as states. Its text provides that “[a]ll persons born . . . in the United States” are by that fact alone “citizens of the United States” — and thus, equal citizens at birth. This sentence in effect constitutionalized the Declaration of Independence’s “self-evident” truth — a truth that Lincoln had famously stressed (and glossed) at Gettysburg — that all men (that is, persons) are created (that is, born) equal. Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence.

The Civil Rights Act of 1866 — a companion statute passed by the same Congress that proposed the Fourteenth Amendment, in the same season and by nearly the same vote — featured language virtually identical to this sentence, and explicitly linked this language to a racial-equality rule binding both state and federal officialdom: “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to .

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“De-habilitating” Lochner: A Response to David Bernstein

In my previous two posts as a guest blogger this week, I have served up a few thoughts about Conspirators Randy Barnett and Eugene Volokh, and the ubiquitous Richard Posner. Today, I offer a few words about David Bernstein.

In Chapter 6 of my new book — oh, have I mentioned in the last thirty seconds that I have a new book out? — I explore America’s Symbolic Constitution, encompassing a network of iconic texts, beyond the written Constitution itself, that help fill in the gaps of the written Constitution. These texts define a rich constitutional culture in America. They are constitutional texts because they help constitute us as Americans. They form part of the American Way of Life, the basic American creed for liberals and conservatives alike. The Declaration of Independence surely belongs in the core of this cluster of iconic texts; and so do the Federalist Papers, the Gettysburg Address, and the “I Have a Dream Speech” — to name just a few.

My chapter also identifies several texts that form part of the modern American anti-canon — texts that are widely demonized by judges from across the political and methodological spectrum as exemplars of how NOT to interpret the Constitution. I claim that by consensus, “three cases occupy the lowest circle of constitutional Hell and are today denounced by lawyers and judges across the spectrum.” The three cases are Dred Scott, Lochner, and Plessy. Mine is a descriptive and interpretive claim about our current practices, and in my footnotes I show that all three of these cases are in fact widely condemned by modern Supreme Court justices.

I explicitly acknowledge that “one can find scholars who praise Lochner and even some who call for its revival” but I immediately add that “one [...]

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Freedom of Speech in America’s Unwritten Constitution (With Some Thoughts on Volokh, Posner, and Scalia)

My new book, America’s Unwritten Constitution: The Precedents and Principles We Live By, is organized around different techniques of constitutional interpretation. Throughout the book, I use the freedom of expression as a testing ground for various interpretive approaches. As I explain in the book’s Introduction:

Textually, [the freedom of speech] appears in the First Amendment, but if everything depends solely on this explicit patch of constitutional text, which became part of the Constitution in 1791, then the First Congress in 1789 and 1790 was free to pass censorship laws if it so chose. But surely the First Congress had no such power, I argue. And surely states have never had proper authority to shut down political discourse even though the First Amendment does not expressly limit states. The robust, wide-open, and uninhibited freedom of American citizens to express their political opinions is a basic feature of America’s unwritten Constitution that predates and outshines the First Amendment. Or so I claim. I do not prove this specific claim in a single chapter devoted solely to free speech. Rather, free speech pops up at several points in the book, each time in connection with a different method for finding America’s unwritten Constitution. In Chapter 1, I invite readers to read between the lines of the Constitution — to see what principles are implicit in the document, read as a whole, even if these principles are nowhere explicitly stated in any specific clause. In the middle of this chapter I show that free speech is one implicit principle among many. In Chapter 2, I invite readers to pursue a wholly different methodological line of inquiry: Look away from the text altogether, if only momentarily, and instead ponder the specific historical procedures and protocols by which the Constitution was in fact enacted. It

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America’s Unwritten Constitution: An Open Letter to Randy Barnett


Though I’m an avid reader of The Volokh Conspiracy, I have never posted on this (or any other) blog — until now. Eugene has kindly invited me to try this blogging thing on for size, and this week seems the perfect time to accept his kind invitation. The stars are all in line: This month marks both the 225th birthday of the Constitution and the 150th re-birthday of the Constitution, thanks to the Emancipation Proclamation of September, 1862, which signaled the beginning of the end of American slavery. Oh, and did I mention I have a new book out this month, America’s Unwritten Constitution: The Precedents and Principles We Live By, which one of the regular Volokh Conspirators just reviewed for the Wall Street Journal two days ago?

Here’s my plan for the week. Today, I am posting below a long response to Randy Barnett’s long review of my long new book, which my many fans (all four of them!) have been eagerly awaiting for a long time. (It has been seven years since I published my last book, America’s Constitution: A Biography, the prequel to my latest effort.) Tomorrow, I will discuss a few passages of my Unwritten Constitution book that build on Eugene’s work on the history of American freedom of speech — passages that also cast new light on the recent unpleasantness between Richard Posner and Antonin Scalia. On Wednesday, I will reprint the passage of my new book that takes aim at David Bernstein’s recent book on Lochner, and expand briefly on my critique of my old friend, David. On Thursday, I will offer a quick corrective to another YLS grad who hangs out on this site, Ilya Somin. On Friday, I will try to outflank Orin Kerr from the right, [...]

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