The Liberal Law Prof Who Agrees With Scalia
WHY YOU SHOULD CARE
Because the supreme law of the land requires some supreme interpreters, and not just the ones in the robes.
By Sean Braswell
“Lincoln is my hero,” Yale law professor Akhil Reed Amar proclaims to a packed crowd at the National Constitution Center in Philadelphia. “He should be all of yours,” he continues, adding, for good measure, “We live in his house.”
Amar is not being metaphorical. The soft-spoken constitutional scholar with shaggy hair, gray beard and glasses can be deadly earnest, particularly when it comes to Lincoln. But Amar’s infectious enthusiasm for his subject and his ability to communicate its nuances to law students and laypeople alike have transformed him into that rare public intellectual who’s just as comfortable across the table from Clarence Thomas as Stephen Colbert. And the scholarly ground Amar has staked out — what some would call a liberal “originalist” view of the Constitution, with similarities to the late Justice Antonin Scalia’s emphasis on the original meaning of the text — has also made him one of the most provocative and controversial legal scholars of his generation.
For many, constitutional law may never have seemed an un-drab concept, aside from that time Elle Woods went to law school. But the ideas expounded by scholars like Amar, who did not respond to requests for comment, and the debates in the academy over how to interpret the constitution, often predate and presage key decisions like the Supreme Court’s recent ruling on same-sex marriage. Amar’s latest book, The Law of the Land: A Grand Tour of Our Constitutional Republic, is an exploration of the role that geography has played in the life of U.S. constitutional law that begins, as it must, with Honest Abe. Not just because of Lincoln’s good Midwestern-boy roots, which Amar argues influenced his plans for the nation, but because he says Lincoln’s stubbornness against secession during the Civil War were the two most important constitutional decisions in American history. Asking where the U.S. would be today without them would be like asking “who you would be if your parents never met.”
Amar loves historical excavation and resurrecting forgotten constitutional history.
One of Amar’s unlikeliest constitutional heroes we meet in the book: former Supreme Court justice Hugo Black, a former Klansman from Alabama who got us to apply the provisions of the Bill of Rights to state and local governments, formed the basis for the influential Warren Court and helped redeem, claims Amar, Lincoln’s vision of national unity in the 20th century. Both Lincoln and Black, says Amar, who has two degrees from Yale, had scanty academic credentials and were underestimated “by all these people who had fancy educational East Coast degrees.” It’s one of those fancy East Coasters who brought Amar to Black: his Yale mentor, Guido Calabresi, who clerked for the justice.
The son of Indian immigrants, Amar grew up in Walnut Creek, California, and is not someone you would imagine as admiring a Klansman. He’s spent most of three decades ensconced in Yale’s snowy ivory towers and calls himself “a California-Connecticut Yankee through and through” in his new book. His immigrant parents inspire some of his seemingly conservative love for the text of the Constitution, particularly that birthright-citizenship clause that Donald Trump and others have condemned mightily. “My parents were not citizens,” Amar, who endearingly and almost invariably carries a pocket Constitution in his coat, once told Publishers Weekly. “But … the first sentence of the Fourteenth Amendment made me a citizen on the day of my birth. It gave me this great gift that I have basically spent my life trying to repay.”
In some ways, Amar is Justice Black’s intellectual heir, an originalist, much like Thomas and Scalia, meaning he cares about the original meaning of the Constitution’s text. And yet he loves historical excavation and resurrecting forgotten constitutional history in a way that not infrequently leads to rather progressive outcomes. “Amar’s greatest contribution to constitutional scholarship,” says Jeffrey Rosen, a law professor and president of the National Constitution Center, “has been transforming the debate about the meaning of textualism and originalism,” making a liberal originalism possible.
Other scholars are not as convinced. “Akhil is a prolific and enormously important constitutional scholar, [and] his emphasis on text has been important,” says Erwin Chemerinsky, a constitutional scholar at the University of California, Irvine. “But he is non-originalist in supporting a right to marriage equality.” Scalia would likely have agreed; and for some, like Daniel Urman, the director of Northeastern University’s Doctorate in Law and Policy program, Amar’s thinking is more a demonstration of Thomas and Scalia’s “outsize influence on how we understand constitutional interpretation.”
But there is also something refreshing in having a liberal Yankee like Amar freely praising a conservative from Georgia like Thomas for the “steadiness and humility” of his jurisprudence. After all, as Amar tells the crowd in Philadelphia, Lincoln is Thomas’ hero too. “The story of the Constitution is what unites us all,” Amar adds. “North and south, east and west, liberal and conservative, Republican and Democrat, red and blue.”