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Sunday, April 28, 2013

Akhil Amar and the Historical School

From David Rabban's very interesting book, Law's History: American Legal Thought and the Transatlantic Turn to History (2012):

Among the many late-nineteenth century scholars who stressed the role of evolving custom in constitutional law, only [Christopher] Tiedeman devoted an entire book to this subject.  In The Unwritten Constitution of the United States, published in 1890, Tiedeman stressed that "the great body of American constitutional law cannot be found in the written instruments, which we call our constitutions."  Rather, it is "unwritten" in the legal sense of that term, "to be found in the decisions of the courts and the acts of the National and State legislatures, constantly changing with the demands of the popular will."  While maintaining that the constitutional understandings of the people are more important than those of the framers, Tiedeman stressed that these popular understandings change over time.  "The present popular will," not the will of those who either framed or voted for the Constitution, "must indicate which shade of meaning must be given to the written word." . . . . Tiedeman emphasized throughout his book that "all political constitutions undergo a constant and gradual evolution, keeping pace with the development of civilization, whether there be a written constitution or not."  He added that "these changes generally take place without formal amendments to the written constitution."  Rather, they evolved through what he called the "unwritten constitution."  (349)

Has anyone ever classed Professor Akhil Amar as a contemporary member of the historical jurisprudential school?  I haven't seen this particular association made before, but perhaps others have.  Amar's unwritten constitutional sources in the book are more numerous than Tiedeman's, to be sure (and they emphasize the popular will less), but the overarching structure of the arguments from unwritten constitutionalism seemed similar to me.  

Posted by Marc DeGirolami on April 28, 2013 at 02:35 PM | Permalink


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