Akhil Reed Amar

  • September 17, 2012
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center. This post is part of an ACSblog Constitution Day Symposium.


    September 17th is Constitution and Citizenship Day, marking the day 225 years ago when our Founding charter was signed in Philadelphia and presented to “We the People” for ratification.  As Yale Law Professor Akhil Amar has eloquently explained, never before in world history had a government charter been ratified by the people themselves.  Calling our constitutional moment in 1787 the hinge of modern democratic history, Prof. Amar notes that the Founding generation took important steps to increase the number of eligible voters in the ratification process, with many states waiving voting restrictions (such as property requirements) and some allowing African Americans to vote for convention delegates.

    However advanced this expanded voting pool may have been during the 18th century; through a modern lens it is obviously profoundly flawed and restrictive.  Fortunately, after declaring that “We the People” would be the ones to establish and ordain the Constitution, the preamble also boldly states our intention to “create a more perfect union.”  The goal was not just to create something “more perfect” than what Americans had seen before -- whether it be the tyranny of the British crown or the dysfunction of the Articles of Confederation -- but to establish a Union that was itself perfectible across history.  Article V, authorizing Amendments, made it clear that the 1787 Constitution was not an end, but a beginning.  And perhaps nowhere is that arc of constitutional progress seen more plainly than in the story of suffrage.

  • June 29, 2012

    by Jeremy Leaming

    Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

    Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

    But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

    Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

    But that did not happen. And some constitutional law scholars say that fact should not be ignored.

    Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

    As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

    Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”

  • June 22, 2011

    Several of the nation’s top constitutional experts engaged in a robust discussion on what the U.S. Constitution means and how to interpret it, during the opening plenary discussion at the American Constitution Society’s Tenth Anniversary National Convention.

    ACS Board Chair Geoffrey R. Stone, a law professor at the University of Chicago, kicked off the discussion by offering a new way of framing constitutional interpretation, as articulated in a recent article in Democracy: A Journal of Ideas he coauthored with University of North Carolina law professor William Marshall, entitled “The Framers’ Constitution.”

    In the article, Stone and Marshall lay out their vision for interpreting the Constitution as the Framers intended, recognizing that the Framers were “visionaries” and not “timid men” who would have viewed originalists’ vision that “any particular moment’s understanding of the meaning of the Constitution’s open-ended provisions should be locked into place” as wrongheaded.

    “As men of the Enlightenment, [the Framers] believed that just as reason, observation and experience would enable us to gain greater understanding over time into questions of biology, physics, economics and human nature, so, too, would they enable us to learn more over time about the content and meaning of the broad principles they had enshrined in our Constitution,” Stone explained in his remarks.

  • February 7, 2011
    The criticism continues to mount over U.S. District Judge Roger Vinson's ruling in the Florida Attorney General's legal challenge to the landmark Affordable Care Act (ACA).

    Last week, a group of scholars at the Center for American Progress provided a devastating interactive assessment of the judge's opinion, revealing it to be one riddled with historical inaccuracies and teetering on a wobbly understanding of Supreme Court precedent.

    Now a leading constitutional law expert and Yale Law School professor has penned an op-ed for the Los Angeles Times offering a scathing critique of Vinson's work.

    Professor Akhil Reed Amar says that after reading Vinson's opinion, in which the judge invalidates the entire health care law because he says Congress does not have the constitutional authority to enact the law's individual responsibility provision, he found one thing immediately clear: "My students understand the Constitution better than the judge."

    Amar says the "central issue" in the legal challenges to the health care reform law is "how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland." Chief Justice John Marshall (right), Amar writes, said the Constitution provides Congress implied and expressed powers. There have been only two times, the professor continues, since 1937 that the Supreme Court has found that federal action goes beyond Congress's constitutional powers. Specifically those instances were ones that fell outside Congress's constitutional power to regulate commerce among the states.

    But the landmark health care law, Amar says, as do many other constitutional law experts, clearly regulates an industry that crisscrosses the entire nation. The health care law regulates an industry "that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state."

    He continues that there is nothing "improper in the means" that the Affordable Care Act uses to regulate that industry either. "Laws," he writes, "may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing."

    The opponents looking to tear down the landmark health care reform law should back politicians that support its repeal, Amar says, not "use seats on the lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

    In his conclusion, Amar notes another "judge named Roger," who gave the country a high court decision that ranks among the Supreme Court's most despicable opinions.

    Amar concludes:

    The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

    History has not been kind to that judge. Roger Vinson, meet Roger Taney.