Basic. 357 pp $29.99
In the era of blue states and red states, it is a challenge to develop new theories about the governance of our country. In “The Law of the Land,” Yale Law School professor Akhil Reed Amar has done just that by examining a range of issues involving the Constitution and the Supreme Court through the lens of geographical differences.
“America’s Constitution looks slightly different in each of the cities, states and regions that make up this great land,” Amar declares. His approach is to examine a melange of cases, presidents, justices and eras, with a dozen states serving in some way as filters. The book builds on themes of his earlier work, especially his 2005 book, “America’s Constitution,” which noted ways in which the document expressly incorporated geopolitics into its text.
So, for example, he explores the roots of Abraham Lincoln’s profound commitment to national unity through the origins of his family in different parts of the Old Northwest Territory. This geography led to Lincoln’s view, expressed in numerous speeches, that the union was older than the states, older than the Constitution. In other words, before they became states via the constitutional process, Lincoln’s homelands already belonged to the union in territorial form.
Amar’s geographic observations take a variety of forms. He considers it no coincidence that in the 1950s and ’60s it was Justice Hugo Black, an Alabama native and former U.S. senator, who helped the Supreme Court give real meaning to the equal protection and due process guarantees of the 14th Amendment, a component of the Reconstruction imposed on the South. In the landmark 1954 school desegregation ruling, Brown v. Board of Education, Amar observes that the court’s choice of Topeka, Kan., as the lead case among several from different states “underscored the fact that legal segregation was not entirely a southern sickness. . . . By giving the Topeka litigation top billing, the Court aimed to take some of the sectional sting out of the case — to soften the sense among many belligerent white southerners that their region was once again being singled out by officious outsiders who simply failed to understand the southern way of life.”
At times the geographic thread of the book adds little to the discussion of constitutional issues. Amar’s strongest criticism of the Supreme Court comes in the chapter discussing Bush v. Gore, the 2000 decision that in effect gave the presidential election to George W. Bush over Al Gore. In one sense, this is the most geographic of chapters, since it focuses almost exclusively on Florida, where the electoral battle and legal dispute centered. Yet Amar’s position that the U.S. Supreme Court failed to respect the state’s laws, which designated the Florida Supreme Court as the place for resolution of this type of election dispute, seems to undercut his geographic theme, not support it — or at least suggests that the court is as free to ignore geographic influence as to follow it.
Amar makes other geographic observations that, although perhaps minor, are strained. He discusses a possible connection between Justice Black’s passion for reading the words of the Constitution literally and the religious fundamentalism of Black’s native Alabama. Fair enough, but Amar then asks whether Justice Antonin Scalia may be similarly influenced because he spent several years early in his law career teaching at the University of Virginia Law School. This seems a stretch. Elsewhere, Amar observes that Justice Robert Jackson was one of two New Yorkers on the court in his day. Observing that today’s court has five justices with New York origins, he suggests that Jackson “presaged the modern Court.” Technically this may be true, but what is the point?
Amar is one of the leading constitutional scholars in the country and an extremely creative thinker. The book is at its best when he explores some of his own elegant constitutionalism to explain the work of justices or insights about the Constitution.
Consider the chapter on Justice Anthony Kennedy, the pivotal center of today’s Supreme Court because he often occupies the ground between more liberal and more conservative justices. Some contemporary constitutional commentators find Kennedy’s judicial rhetoric overblown and too focused on philosophical concerns. Not so Amar. He praises Kennedy, especially in some of his earlier opinions after he joined the court in 1988. Kennedy, Amar writes, “tries to teach us about the Constitution. . . . All Americans are his students, and he tries to reach us by using words and images we can understand.” He praises Kennedy’s vision of equal citizenship and his expression of that vision with a minimum of legal jargon.
Amar notes that there was once more geographic diversity among Supreme Court justices. Today, he says, a geographic imbalance exists (that New York connection), and he observes that “demography has replaced geography” as a distributive focus for the makeup of the court, meaning that we now pay more attention to justices’ age and gender than to where they come from.
The risk with creative constitutional scholars is that they can let their ideas run away with them. Amar does so on occasion. He accurately summarizes Kennedy’s 1996 opinion for the court striking down a Colorado constitutional amendment that barred local governments from including gays in anti-discrimination laws. Kennedy found that the amendment discriminated against gays in violation of the 14th Amendment. Amar argues that Kennedy also “waves in the direction” of the constitutional provision that prohibits bills of attainder, which are laws that single out individuals by name for some legal penalty. In suggesting that the harm caused by precluding laws prohibiting bias against an entire class of people is similar to the harm of singling out an individual for a bill of attainder, Amar may be on to something, but there is certainly no such reference by Kennedy in the decision, Romer v. Evans.
Amar ends on a positive note of unification. Despite the many influences of geographic difference outlined throughout the book, he reminds us in the end that it is a “great truth” that states and regions “unite to form one nation, one constitutional system.”