Rose the United States constitution is over 225 years old. Though our nation has transformed since the document was ratified, this text has remained largely unchanged. Some scholars question relevance of the constitution in the modern day, others insist we must strictly adhere to the words of our founders, akhil amar suggests that we look beyond the text. He is the sterling professor at Yale Law School and a constitutional law scholar. His new book is called americas unwritten constitution, the precedence and principleses we live by. I am pleased to have him at this table. Welcome. Thank you. So what about this love affair with the constitution that you have, did it come from undergraduate z it come from law school, did it come from some sense of america and its it came from the day that i was born and because the day im born in ann arbor, michigan, my parents are not u. S. Citizens. They evers students, theyre, they were here to do their medical training. They met in ann arbor and because of the first sentence of the 14th amendment, great gift, the constitution gives a gift to peon my birthday, a Birthday Gift t makes me a citizen of the United States. Because is with born here, no questions asked. And i think ever since, and i grew up as an immigrant kid, very much believing in america. My parents chose this place. They came here and i have been, i have this love affair with mark and its constitution and we have been trying ever since to repay the gift that it gave me. Rose when did you decide you wanted to be a constitutional scholar . I think in retrospect, you know, things seem obvious. But i think it was a process. I think there were three things that were key. When i was 10 years old my parents took me to see Independence Hall and the declaration of independence where it was drafted and the constitution. We went to the national archives. We went, hi lunch with my congressperson. And i visited mount vernon and the white house so i think that had a really big effect on me. Then when i was in high school i was the editor in chief of our high school newspaper. And the principles censored some of my editorials which were maybe kind of too politically edgy. And then i came, i was lucky enough to go to yale college and just studied from amazing undergraduate teachers of american history, edmond morgan, john morton blum, so i think that combination just, you know, in retrospect it seems obvious i was destined to do this. Rose editor of the law review an all that. And now you teach there. I condition believe i get paid to teach. Rose and when you use the term the unwritten constitution what dow mean . I dont mean to take away from this document that i do love. These 8,000 words that we call the constitution that calls itself the constitution, and i wrote a previous book, walking the reader through the written thing from start to finish. But this document doesnt say the rule of law in so many words. Doesnt say checks and balances, limited government, federal im, separation of powers. Doesnt say separate and inherently unequal. Doesnt say one person, one vote. Doesnt say that a criminal defendant has the right to take the stand in his own defense. And yet all of those things, did i mention one person, one vote. Doesnt say the bill of rights even though there are amendments that we call bill of rights. When you look at the thing, the bill of rights, it says Congress Shall make no law a bridging free speech but what if the president tries to censor speech or federal courts or states, did we not have free speech before the First Amendment was adopted . The first year and a half or so of the constitution . So my claim is that we have to honor this written text but much of our actual constitutional experience requires us to go beneath and behind the words, while staying fateth faithful to the words, that is the trick, going beneath and behind yet staying faithful. Will you recognize this idea and this person, roll tape. The only way you can have democracy in an extensive nation is through written laws. And if you dont give those written laws the meaning that they were understood to have by the people who adopted them and more importantly by the people to whom they were promulgated, democracy doesnt work. The key question with regard to textualism and original meaning versus the opposite view which is that the constitution evolves and the Supreme Court says how it evolves, the key question is simply this, would the American People have ratified the document if it said the application of this document and what it means shall be whatever the Supreme Court says it means from age to age. Nobody, nobody would have ratified that document. Its a dead document to you. I like to say an enduring document. Rose but you dont say its a living document. It is not living. It is not living. Rose so what is the basic difference between judge scalia and professor mar there are some differences between judge scalia and judge scalia because he talks a good game but does he, for example, brief that a criminal defendant has a right to take the stand in his own behave behalf. And he does. And yet this document doesnt say so. And at the time the bill of rights was adopted, no criminal defendant in america could take the stand in his own defense. And even at the time the 14th amendment was a dodd after the civil war, almost no criminal defendant could. Rose he accepts the idea there are Constitutional Rights that were not in play at the time the document was written. Well, it depends what day you ask him. Because sometimes it accepts it and sometimes he says thing like that now here is what i would say. The constitution itself tells us that there are more rights, never less. So i agree with him. I dont want the Supreme Court to just bend this and fold it up into a piece of origami and do whatever it wants with it but the text itself says there are uninnumerated rights, more rights than listed but never less. Then the question is how do we find those additional rights under the 9th amendment which he doesnt like some of, but also under the 14th amendment which speaks very spaciously of the privileges and immunities of citizens of the United States. Well, what are those. And one final thing t may not be a living document but it has been amended over and over again. And the amendments that happened lated which are added as postscript, like a careless written letter so, many pss and ppses dont fully tell us just how much of what went before, we have to rethink. One example. Where does it is a that a woman is eligible to be president. Because when you read the words of article 2 it says he, him, his. Rose right. My claim is the 19th amendment was about womens politically quality political equality but doesnt say in so many words that black and white that Hillary Clinton an sarah palin are eligible to be president and Vice President ment but it has to mean that. Rose where do you think it might be amended in the future. Thats the last chapter. Rose i know. There are different ways of thinking about an unwritten constitution. And i end with the constitution still to be written, the constitution of the future, of 2020, of 2121, of 2222. The unfinished constitution and i offer a few thoughts on that. One thing is we have to think seriously about that. If we can talk, spend a lot of time thinking about stuff that happened 250 years ago, we need to be thinking about posterity, about what the constitution that we should we qooelt to people 250 years from now. Here with my principleses. Number one that any constitutional amendment as a practical mat never todays world is going to have to satisfy both the republicans and the democrats. There is a chapter on the party system t in effect built t that is part of our unwritten constitution, we have a two party system and the gestures to a two party system, in a couple of ways, but a two party system means that you will never get twothirds of the house, and twothirds of the senate, three quarters of the state to agree to anything unless both parties are on board. Second anything that we add to the federal constitution is going to need to, as a practical matter be road tested by states first. Almost everything in our constitution states tried first. They had written constitutions. Three branches of government, by separate business of rights, judicial review, so all of that first, some of them got rid of slavery first, some of them gave women the vote first. So stuff that is already in the constitution was road tested first by the state and that will be true going forward. The third principles is that almost all the amendments have added to liberty and equality except for prohibition, not taken away from liberty quality. What are the payoffs of that. Here is an amendment that i think could actually happen. Someone who is born outside the United States comes in early age, should at some point be eligible for president. Why would that work. Rose early age would be defined as. You have to be here for 30 years or something. Why might that pass. Because it adds to liberty and equality, it continues this great narrative of a document from the people and then we end slavery and promise womens equality and womens equality, an 18yearold vote t would fit this trajectory. Both republicans and democrats might favor it because for every Janet Granholm who might be eligible there is an arnold schwarzenegger, henry connectioner for every madeleine albright. Rose all of those people to the born if the United States. Right, but the republicans might be able to say you know, we believe in enforcing our borders but were not opposed to the right kind of immigration. They might find it in their political interest to support this as part of comprehensive immigration reform. The person who actually introduced the constitutional amendment to do just that, orrin hatch of utah, republican, i testified on behalf of it. And the tea party, the Republican Party has gone a little crazy of late but they are going to recover their senses. Because they have to win immigrant americans. This might be part of it. And states do this. Jennifer granholm was governor of michigan. Arnold schwarzenegger of governor of california, governors are minipresident s. And so if state does it, if it passed my three states, states have road tested the idea. Both parties might be in favor of it. And it adds to liberty and equality it fits the story, the trajectory, the unwritten trajectory. Rose what is another one like that. Direct election of the president. Rose there we go. Because how do we pick governors in states. We dont have a little miniElectoral College. Here is how we do it in california we count all the votes equally and carefully and if its close we recount them. Call us crazy but that is how we do it in california, in texas, in pennsylvania, we do that in every state. And every state. Rose we dont do that in the nation. Direct relation of the president looks like an american idea for two reasons. Because state does it for their governor so it doesnt look weird, european. Frooerky. And second, because part of our unwritten constitution is not in the founding document, one person, one vote is a bedrock principles today, since war in court. Not in the text but today we really believe in treating voters equally. The Electoral College doesnt do that. This would. And by the way, both republicans and democrats might be in favor of this because the Electoral College today isnt skewed to either party. It helped george w. Bush in 2000, but it could have helped kerry in 2004. Obama could have have possibly people were predicted in september and october won the Electoral College while losing the popular vote. So the Current System right now isnt skud. There is one red joker there is one blue joker in the deck. They wop up pop up but it is not a stacked deck. Both parties might favor it states have road tested the idea. It adds to equality. Rose erol warren where do you place him in the mant panth onof chief justices. There a chapter on him, he is up there in my view with john marshal. Rose perhaps the greatest. And that say controversial statement, it seems. I think he made one huge mistake and im this, im with the conservatives. I think the warren court let criminal defendants off on crummy technicallities unrelated to guilt or innocence. And that hasnt aged very well. The exclusionary rule. Rose right. But on the other five things that the warren court didnt. Rose you didnt like those rules. On that i am im to the right of Justice Scalia and thomas. We have Common Ground because it is not in the constitutions text and its not really part of the american spirit. But the other five things. Rose dont let them go on technicallities. Unrelated to guilt or innocence. But here are the five things that did, even today that conservatives actually affect. Brown versus board of education, that many those affirmive we brief in brown, we have a different broad pro test of free speech, conservatives say that means Citizens United but we believe in that too. One person one vote, conservatives say yes, that means bush versus gore because the recount was unequal. We believe in that. Religious equality. Yes, but dont discriminate against religion. Say the conservatives. So what is the other one, applying the bill of rights against the states. Rose yeah. And conservatives say that means the Second Amendment and not just the first and the fourth and the fifth. And so although hugely controversial at the time, the warren court actually laid the foundation for the house that you and i and all our audience lives in, is the house that earl warren dreamed up. Because here is what the world is in 1953. Apartheid, massive mall apportionment in many of the states, organized prayer in the public schools, no broad protection of free speech, practically no right force criminal defendants. And the bill of rights doesnt apply against the states. Thats not our world. But thats the world of 1953. And earl warren, hugo black, a textualist as much as scale ya, but from the left. Rose a senator from alabama. And bill brennan, a northeast judge from a democrat, a southern democrat senator and a western progressive republican governor, the three of them. Rose what is interesting is that black was a senator. Yes. Rose warren was a governor. Exactly. And brennan was a judge. Rose exactly. But they were not all they werent all judges. Rose and now so many of them come from the court of appeals or District Court or in some cases like solicitor general. Before elena kegan was appointed to the court every single justice, the first time in american his three was not only a judge, not only a federal judge, not only a federal, a federal appellate judge but a sitting federal appellate judge. Every single one of them before elena who was solicitor general. The court thattive ga you brown versus board of education, none of them had been judges before except hugo black who had sat on a police court at age 26 or something. John marshal, not a judge before a justice. Roger tawney, not. Rose great chief justice of california. Earl warren, none of these people, William Rehnquist hadnt been a squj before he was a justice. So we used to have a tradition of more senators and governors as well as judges. And maybe tlrb. Rose you think that is a good idea. Not nine of them, maybe, but a few, yes, a few of them who have been elected rrz you dont have to be go to law school to go to the Supreme Court. I suppose so. Rose you suppose so or . Nowadays as a practical matter its worse than that. Every single one of them went to harvard or yale, not just law school. Rose what do you think of that . Maybe not so good. Good for me because im training those people. Maybe not so great for the country because maybe you know im cooky and we want to have a diverse portfolio of people who have other professors rather than just a handful. So its very much against interests. But maybe every so often someone else should. Rose you dont like the idea of two senators from each state. You think maybe they ought to be more reflective of population. And i think. Rose so new york might have six and somebody else would have one. And i talk about how that could actually happen even with the constitution has some very special rules about that. And here is just a wild idea. Because right now why would wyoming ever agree to modify. Because remember, the amendment cant pass unless by twothirds of the senate which is currently, you know, wyoming count equal with new york, and three quarters of the state, wyoming counts equally as new york, why would wyoming people ever go for that . Heres what i propose. Lets imagine a constitutional amendment that wont go into effect for a 100 years. Lets try to think about how we could be framers for a future posterity, a senator from wyoming could say, you know, 100 years from now my grandkids are as likely to be californians as new yorkers as wyoming. Why should we privilege wyoming over california and new york. Why shouldnt i try to be impartial as to all america. Thats what i mean by the constitution of the future. The preamble talks about pos perritt posterity and we talk about stuff that happened 250 years ago. We can be framers of the future, talk about what should be fair rules for an america 250 years from now. Rose how would you like to sit on the Supreme Court . Probably not my skill set. I do know people that i would love to see on it but im pretty happy where i am. You clerked for judge pryer brier. While he was a Supreme Court. And nicest boss ever. Rose doess agree with most of what you say . You know, he cares less, maybe, about the text than i do. Hes more of a practical pragmatic person. I take some conservative positions in this book. I champion a right of individuals to have a gun in the home for selfprotection. Because i think thats part of our american any kind of gun. For selfprotection in the home. Rose any gind of gun. No, no. Rose so how do you define what kind of gu