The U.S. Constitution is about 8,000 words long, and although it is the bedrock of America’s form of government, more often than not our way of life is governed by reading between the lines of that venerable document.
Yale Sterling Professor of Law Ahkil Reed Amar visited Wilton Tuesday evening, Jan. 8, to discuss his book, America’s Unwritten Constitution, and explain how “there is more to the Constitution than its text.” He spoke before a large crowd at Wilton Library.
The Constitution “doesn’t say a criminal defendant has the right to take the stand in his own defense,” Dr. Amar said, and yet that is something that occurs in every courtroom in the country.
“The rights people live on the ground get read into the Constitution,” he said.
An engaging speaker, Dr. Amar sketched out the chapters of his book, offering multiple examples of how the Constitution is constantly being interpreted.
One chapter is devoted to women. “Where does it say Hillary Clinton can be president?” he asked. The Constitution constantly refers to “he,” “him,” “his.” It doesn’t say Sarah Palin, Condoleezza Rice or Hillary Clinton can be president, “but they can,” he said.
“Where does it say Barack Obama can fire his cabinet? … The presidency is defined not by what the text says but by what George Washington did,” he said.
Washington decided he could fire his cabinet, and so succeeding presidents have thought and done the same. Executive privilege is not outlined in the Constitution, but Washington exerted it, and so have his successors.
“I believe there’s deep wisdom bound in the Constitution … but it doesn’t unlock itself,” he said. Nevertheless, he believes that “the Constitution is accessible. It’s not like the tax code,” he said jokingly.
How is the Constitution applied in situations that never existed when it was written? Dr. Amar used the Affordable Health Care Act — Obamacare — as an example. The act prohibits insurance companies from discriminating against insuring people with pre-existing conditions.
If a person with a pre-existing medical condition wanted to change jobs, but the new employer’s insurance company refused to insure the person because of that, the person very likely would not change jobs. That creates a condition called “labor lock-in.”
“That goes against the free flow of commerce,” which is written into the Constitution, he said.
During a question-and-answer period, the Second Amendment — the right to bear arms — was raised. Does the “well-regulated militia” application still hold?
At the time of the American Revolution, Dr. Amar explained, the militia — the Colonists — were “the good guys,” defending themselves against the British, seen as the aggressors.
Later, the role of the militia changed, and there were many cases where they were seen as “the bad guys.” For example, who would protect black families from the Ku Klux Klan?
The right to keep a gun in the home was recognized as necessary when law enforcement could not be counted on as protection.
The Supreme Court has ruled, he said, that to keep a gun at home for self-protection is legal. That doesn’t mean, Dr. Amar said, that there can’t be laws on how many guns a person may own or carry.
Given that there are about as many guns in the United States as there are people, “getting rid of all the guns would make Prohibition look like a walk in the park,” he said.
“We need to have a national conversation where liberals say it is OK to have guns in the home. That said, can we talk about reasonable regulation on the number of guns, the size of the clips and the amount of ammunition?”