Magazine On-line [summer 2012]
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Akhil Reed Amar at podium

Yale scholar presents Harlan lecture on ‘America’s Symbolic Constitution’

Americans are a distinct people with a national narrative that shows an abiding concern for equality, fairness, and inclusion. The U.S. Constitution reflects those values and gives them legal standing in a formal, written context.

There is also a symbolic constitution that Americans hold dear, drawn from texts that put forth concepts relating to the written Constitution and that occupy a special place in constitutional discourse.

Those were the fundamental themes explained by Akhil Reed Amar in his presentation “America’s Symbolic Constitution,” given April 26 in Carrick Theater as part of the John Marshall Harlan Lecture Series. Amar is Sterling Professor of Law and Political Science at Yale University and one of this era’s most accomplished constitutional law scholars.

“In a polyglot nation of many faiths, ethnicities, and ideologies, the Constitution stands as uniquely unifying American symbol,” Amar said. “But several other iconic texts epitomizing the American way also help to bind Americans together.”

Amar said there are six texts that comprise America’s symbolic constitution: The Declaration of Independence, The Federalist Papers, The Northwest Ordinance, The Gettysburg Address, Brown v. Board of Education, and the “I Have a Dream” speech by Martin Luther King Jr.

Amar said the texts share these common characteristics: They all connect to the written Constitution and to each other, they relate directly to either Thomas Jefferson or Abraham Lincoln, and both Democrats and Republicans have influenced which texts comprise the symbolic constitution. In addition, he said references to God or religion appear in five of the texts; only the U.S. Supreme Court case Brown v. Board of Education is secular from start to finish.

“The written Constitution was ratified and amended by the American people,” Amar said. “Each element of our symbolic constitution at some point won the hearts and minds of a wide swath of the American people, thereby helping to bind us together as a legal and political entity.”

While the symbolic constitution texts are not on the same legal level as the written Constitution, Amar said, they are extremely important in our understanding of the written document.

“These works set forth background principles that powerfully inform American Constitutional interpretation,” he said. “Wherever the written Constitution is fairly susceptible to different interpretations, interpreters hesitate to embrace any reading that would violate the clear letter and spirit of these other canonical texts.”

Amar gave some telling statistics about the frequency with which several of the symbolic constitution texts have been cited in Supreme Court cases, including more than 300 cases for The Federalist Papers and more than 125 for The Northwest Ordinance.

He also gave examples of the interconnectedness of the texts, such as Lincoln’s Gettysburg Address that refers back to the themes of higher law, freedom, and nationhood explicated in The Northwest Ordinance, a 1787 document that restricted the spread of slavery to the western states of that era.

Amar gave several examples of texts that he said symbolized what Americans reject and abhor, including the 1896 Supreme Court decision in Plessy v. Ferguson, which upheld the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of “separate but equal.” Associate Justice John Marshall Harlan, namesake of the lecture series and an 1853 graduate of Transylvania’s law department, is remembered as the lone dissenter in this case. His ringing dissent included the words, “Our Constitution is color-blind....In respect of civil rights, all citizens are equal before the law.”

Amar said that Harlan’s dissent also included the statement, “The judgment this day rendered will in time prove to be as pernicious as the decision made by this tribunal in the Dred Scott case.” 

“That was a remarkably canny and prescient prediction,” Amar said. “It’s like Babe Ruth’s called home run shot—it’s stunning.”

View this lecture at

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