America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar Page B
Authors: Akhil Reed Amar
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remarkably “complete commentary on our Constitution”—far more systematic, disciplined, and detailed than most other contemporaneous sources—and a supremely intelligent commentary at that, with “intrinsic merit,” as Marshall pithily put it.
Justice Joseph Story said much the same thing about Publius in 1833, when Story published his own multivolume Commentaries on the Constitution , easily the most important work of constitutional scholarship of the nineteenth century. Story laced his treatise with copious quotations from and paraphrases of The Federalist , and he took pains in his Preface to acknowledge that he was standing on Publius’s shoulders. In Story’s words, The Federalist towered above all other Founding-era materials as a “great work”—an “incomparable commentary” that “discussed the structure and organization of the national government, in all its departments, with admirable fullness and force.” 9
When the Constitution was pending before the American people in 1787–1788, Publius beautifully summarized and synthesized many of thebest arguments that other leading Federalists were making elsewhere. In turn, The Federalist functioned as a debaters’ handbook that leading Federalists deployed in some of the later ratification debates, especially in all-important Virginia and New York. More than two centuries after the Founding, The Federalist thus remains a particularly handy place to begin serious constitutional analysis. 10
“Neither slavery nor involuntary servitude”
OF THE SIX CANONICAL WORKS highlighted in this chapter, the Northwest Ordinance is doubtless the one least familiar to the average twenty-first-century American. But this document loomed large in antebellum America and continues to inspire both constitutional scholars and Supreme Court justices. Over the years, the U.S. Reports have recorded explicit invocations of the Ordinance in over 125 Supreme Court cases. Roughly 20 of these citations have occurred in the past half-century, mostly in high-profile cases spanning a remarkable range of topics—including the non-establishment and free-exercise principles, the one-person-one-vote rule, the right of habeas corpus, the principle of educational equality, and the right to civil and criminal juries. 11
Enacted by the Confederation Congress in 1787 and reaffirmed by the new Congress under the Constitution as one of the first items of business in 1789, the Ordinance formed a large link in the great chain of American constitutional history. It simultaneously connected the fledgling constitutional system back to the greatest achievement of its predecessor regime (the Articles of Confederation); provided a guiding template for how the biggest national project of the antebellum era—territorial expansion and the ultimate admission of new states into the Union—should proceed; and foreshadowed America’s next great constitutional achievement (the Reconstruction). In the process, the Ordinance helped shape Americans’ deepest ideas about the nature of higher law and the essence of American federalism. 12
Much of the Ordinance’s substance concerned and confirmed constitutional first principles for America’s territories as distinct from states. Territories today occupy a much smaller quadrant of American land andAmerican law than they did in the antebellum period. Back then, a huge chunk of the national land mass had yet to be or had only recently been admitted to statehood, and questions about how that land mass should be governed—most obviously, whether, when, and how slavery should be allowed there—ranked among the most important policy and constitutional issues of the era.
Even today the Ordinance continues to serve as a source of supplementary principles in constitutional discourse concerning certain topics on which the Constitution’s terse text offers less specific guidance. For example, nothing in the written Constitution itself explicitly says that when a
Justice Joseph Story said much the same thing about Publius in 1833, when Story published his own multivolume Commentaries on the Constitution , easily the most important work of constitutional scholarship of the nineteenth century. Story laced his treatise with copious quotations from and paraphrases of The Federalist , and he took pains in his Preface to acknowledge that he was standing on Publius’s shoulders. In Story’s words, The Federalist towered above all other Founding-era materials as a “great work”—an “incomparable commentary” that “discussed the structure and organization of the national government, in all its departments, with admirable fullness and force.” 9
When the Constitution was pending before the American people in 1787–1788, Publius beautifully summarized and synthesized many of thebest arguments that other leading Federalists were making elsewhere. In turn, The Federalist functioned as a debaters’ handbook that leading Federalists deployed in some of the later ratification debates, especially in all-important Virginia and New York. More than two centuries after the Founding, The Federalist thus remains a particularly handy place to begin serious constitutional analysis. 10
“Neither slavery nor involuntary servitude”
OF THE SIX CANONICAL WORKS highlighted in this chapter, the Northwest Ordinance is doubtless the one least familiar to the average twenty-first-century American. But this document loomed large in antebellum America and continues to inspire both constitutional scholars and Supreme Court justices. Over the years, the U.S. Reports have recorded explicit invocations of the Ordinance in over 125 Supreme Court cases. Roughly 20 of these citations have occurred in the past half-century, mostly in high-profile cases spanning a remarkable range of topics—including the non-establishment and free-exercise principles, the one-person-one-vote rule, the right of habeas corpus, the principle of educational equality, and the right to civil and criminal juries. 11
Enacted by the Confederation Congress in 1787 and reaffirmed by the new Congress under the Constitution as one of the first items of business in 1789, the Ordinance formed a large link in the great chain of American constitutional history. It simultaneously connected the fledgling constitutional system back to the greatest achievement of its predecessor regime (the Articles of Confederation); provided a guiding template for how the biggest national project of the antebellum era—territorial expansion and the ultimate admission of new states into the Union—should proceed; and foreshadowed America’s next great constitutional achievement (the Reconstruction). In the process, the Ordinance helped shape Americans’ deepest ideas about the nature of higher law and the essence of American federalism. 12
Much of the Ordinance’s substance concerned and confirmed constitutional first principles for America’s territories as distinct from states. Territories today occupy a much smaller quadrant of American land andAmerican law than they did in the antebellum period. Back then, a huge chunk of the national land mass had yet to be or had only recently been admitted to statehood, and questions about how that land mass should be governed—most obviously, whether, when, and how slavery should be allowed there—ranked among the most important policy and constitutional issues of the era.
Even today the Ordinance continues to serve as a source of supplementary principles in constitutional discourse concerning certain topics on which the Constitution’s terse text offers less specific guidance. For example, nothing in the written Constitution itself explicitly says that when a
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