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Scholar lectures on law

Carolyn Hutyra | Monday, November 5, 2012

Days before Americans head to vote for the next president of the United States, legal scholar Akhil Reed Amar lectured Friday on the country’s Constitution and its place as a national symbol.

Amar, who is also a Sterling Professor of Law and Political Science at Yale University, delivered the inaugural Potenziani Constitutional Law Lecture on “Constitutionalism and the Pursuit of Happiness” to law students last Friday.

Amar’s lecture discussed his recently published book, “America’s Unwritten Constitutionalism: The Precedents and Principles We Live By.” The lecture aimed at understanding the Constitution in its paper form as well as in its unwritten form.

Amar’s lecture first focused on the phrase “the pursuit of happiness,” then on the pursuit itself as an implication in the family and home life.

“In a nation of many faiths, ethnicities and ideologies, the written constitution stands as a uniquely unifying American symbol,” Amar said. “The important thing to understand about America’s symbolic constitution is simply that it exists.”

Being the people of the United States means receiving certain rights, but not all of these rights are explicitly mentioned. Amar said the government upholds liberties such as having a pet dog, playing an instrument and raising children, even though nothing in the written constitution explicitly guarantees them.

“Many of Americans’ most basic rights are simply facts of life,” Amar said. “When it comes to rights, the written Constitution gestures beyond itself, and points to the existence of entitlements that are not enumerated, not strictly listed in the written Constitution itself.”

Amar said these rights are embodied in the ordinary ways in which ordinary Americans choose to live. They can be found in the Ninth Amendment to the U.S. Constitution, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This became especially important in the case Griswald vs. Connecticut where Amar said the state criminalized the use of contraceptives even between married couples in the privacy of their own bedrooms. The court ruled in a 7-2 vote to accept this as a form of privacy of the Constitution, and the law was abolished.

The Bill of Rights does not specifically mention privacy, but at the same time the court recognized that no law “could properly intrude into the private state of consensual private relations in the bedroom.” The lived constitution should then coincide with the social practices and norms of ordinary law abiding citizens, Amar said.

The ideas of privacy and property have no definitive line of separation especially when they relate to private places such as the home. Of the two ideas, Amar said privacy is innately the more egalitarian.

“Intimacy is distributed more equally across the social classes than is property,” he said.

Though not necessarily constitutional in themselves, Amar said other historical documents do serve as sources in interpretation of American law where the Constitution itself falls short or remains unclear.

The range of these sources includes “The Federalist Papers,” the Gettysburg Address, the Northwest Ordinance, the Dream Speech and a selection of Supreme Court cases.

Abraham Lincoln and Martin Luther King Jr. were among several important historical figures who created other texts, such as those mentioned above, that formed this symbolic constitution. Amar said those works act as “privileged sources of meaning, exploration and guidance.”

This level of open interpretation makes the written constitution susceptible to a number of different interpretations. But, in the process of gaining understanding, Americans can seek clarity in these other constitutional texts.

These texts do not stand alone, but rather they form a system. Amar said Lincoln based his Gettysburg Address on the 1776 Constitution. In turn, King referenced the Gettysburg Address in his 1963 speech given in front of the Lincoln Memorial.

“The ubiquity of Jefferson and Lincoln should hardly surprise us, for America’s modern constitution is a two-party constitution and Jefferson and Lincoln are the patron saints of America’s two parties,” Amar said.

Another common element in these texts is the reference to Providence. Five of the six representative texts Amar highlights in his book mention God. One of these is the Northwest Ordinance, which declares, “religion, morality, and knowledge are necessary to good government and happiness of mankind.”

“Lincoln’s closing sentence referred to quote ‘this nation under God,'” Amar said. “Words that would find their way with minor tweaking into the 20th-century Pledge of Allegiance.”

Even King’s speech contained religious influences, and Biblical allusions. Amar said that people often wonder how such religious texts can pervade the constitution or political office, but this is not unheard of.

“Although America’s Constitution is not itself a religious document, neither is it an anti-religious document,” Amar said.

Just as the Constitution does not specifically separate from religion, nor does it separate from including certain peoples. Amar said race, gender and even birth status do not change the link between the Constitution and the American people it mentions.

“Precisely that all men are created equal, all persons born in America would be legally equal and thus equally citizens at birth and no government could keep these disabilities on a person simply because of their birth status,” he said.