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126 Harv. L. Rev. F. 195 (2012-2013)
American Constitutionalism - Written, Unwritten, and Living

handle is hein.journals/forharoc126 and id is 185 raw text is: AMERICAN CONSTITUTIONALISM - WRITTEN, UNWRITTEN, AND LIVING Akhil Reed Amar* I am grateful to Professor David Strauss for the care and generosity with which he has engaged America's Unwritten Constitution: The Precedents and Principles We Live By.' I am also grateful for Profes- sor Strauss's own previous work in constitutional law, work that helped me refine various ideas that ramify through my book. In what follows, I first identify some striking similarities between Professor Strauss's work and mine, and then highlight some important differences. I. CONVERSATION: COMMON GROUND ABOUT COMMON GROUND There are notable affinities between Professor Strauss's general vi- sion and my own. Consider for example these key passages from Pro- fessor Strauss's 2010 book, The Living Constitution: Many people revere the U.S. Constitution. Many Americans consider themselves connected, in some important way, to the earlier generations who wrote and ratified the Constitution we have today - not just the liv- ing Constitution, but the document. Allegiance to the Constitution, and a certain kind of respect for the founding and for crucial episodes in our his- tory, seem, to many people, central to what it is to be an American.... ... The written Constitution is valuable because it provides a com- mon ground among the American people, and in that way makes it possi- ble for us to settle disputes that might otherwise be intractable and destructive. [O]ne of the absolute fixed points of our legal culture is that we cannot ... say that the text of the Constitution doesn't matter. We cannot make an argument for any constitutional principle without purporting to show, at some point, that the principle is consistent with the text of the Constitution. That is an essential element of our constitutional culture. And no provision of the Constitution can be overruled in a way a prece- dent can .... * Sterling Professor of Law and Political Science, Yale University. 1 David A. Strauss, Not Unwritten, After All?, 126 HARV. L. REV. 1532 (2013) (book review). '95

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