Constitutional Law by Yale 听课笔记(四)


笔记零零散散的,更多是边写作业边查资料所得。这门课后半部分,professor Akhil Reed Amar 主要是在讲unwritten Constitution,就是说那些历史啊典故啊什么的,虽然没有具体写在宪法的8000字里面,但是还是彰显着宪法的精神和光辉的。大致的框架和可以从Amar的这本书里面看出来:

America’s Unwritten Constitution : The Precedents and Principles We Live By.


  • The Enacted Constitution: Amar undermines the constitutional text by trying to demonstrate that we don’t actually know what the “official” version says anyway. And he goes on about “the Year of our Lord” about five times longer than one might have thought possible, debating with himself about whether that reference in the Constitution collides with the First Amendment.
  • The Implicit Constitution: Amar relies mostly on the predicate-act canon and the whole-text canon. The duty to do X includes the authority to do Y if Y is necessary to carry out X. On the whole, he stands on pretty firm ground here.
  • The Lived Constitution: You have a constitutional right “to have a pet dog, to play the fiddle, to relax at home, to enjoy family life with your loved ones, to raise your children, to wear a hat.” You get the idea. So how do you enforce your warm and cuddly constitutional right to “enjoy family life with your loved ones”? Amar doesn’t say.
  • The Warrented Constitution (that’s not a misspelling but a lame pun in homage to Chief Justice Earl Warren): The Warren Court (1953-1969) honored the “spirit” of the Constitution (and the letter, too, Amar argues unconvincingly). The Warren Court, of course, represented the official unmooring of constitutional law from the words of the document that the Court was supposed to be “interpreting.”
  • The Doctrinal Constitution: Amar asserts that Roe v. Wade was correct because it was “rights-expanding”: he argues that “a case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”
  • The Symbolic Constitution: “The most important thing to understand about America’s symbolic Constitution is simply that it exists, Amar writes:

Americans of all stripes can easily name certain texts that stand outside the confines of the written Constitution yet operate in American constitutional discourse as privileged sources of meaning, inspiration, and guidance. True, once we move beyond this core set of texts, the outer boundaries of the canon are fuzzy.

   Amar’s examples: the Gettysburg Address and Martin Luther King’s “I Have a Dream” speech.

  • The Feminist Constitution: In Amar’s view, all law relating to women was undermined by women’s suffrage: “under an entirely plausible vision of America’s unwritten feminist Constitution, judges soon after 1920 could have held that laws such as these [relating to contraception and abortion] were valid only if reenacted by a legislature elected by women voting equally alongside men. As for these laws, perhaps judges should have wiped the legal slate clean in 1920, by striking down the old laws and thereby obliging states to put the matter to a fresh vote.” To quote this is to refute it.
  • The Georgian Constitution (the name is based on that of George Washington): This chapter is mostly padding based on George Washington’s presidential (and precedential) actions. Perhaps it was intended to relieve traditionalists after the unreality of the preceding chapter.
  • The Institutional Constitution: Again, this is padding for traditionalists. “[P]ost-1789 institutional practice thus furnishes a powerful lens through which to read the 1789 blueprint.”
  • The Partisan Constitution: “Most of the rules and roles textually delineated in the original Constitution — for House members, senators, department heads, vice presidents, members of the electoral college, and so on — must today be reread through the prism of America’s two-party system.” But why?
  • The Conscientious Constitution: Here we get to the personal preferences of judges: “[T]here is a proper place for conscience — a concept that forms part of the necessary, albeit unwritten, substratum of American constitutionalism.” If you’re a judge, follow your bliss.
  • The Unfinished Constitution: This is the great morphing Constitution that is “still to be written, the hoped?for Constitution of 2020 — and of 2121 and 2222.” This constitutional morphing is our “constitutional donation.” Amar’s doubt about it is confirmed in his use of surely: “Though this [donation] does not reside on the clear surface of any explicit constitutional text, surely it forms an integral part of America’s unwritten Constitution.”

实在是每一节都很长...各种历史背景事件来龙去脉这样,读起来蛮累的。我个人印象比较深的是乔治华盛顿,比如他的言行举止言传身教确立了很多传统;然后就是一些彰显人文精神和时代光辉的文字演讲,比如大家耳熟能详的I have a dream;最后就是美国法院习惯的 stare decisis 即“遵循先例”,各种案例比如为什么现在是一人一票这样。宪法修正案也有很多故事什么的,学法律的过程除了看条文本身还要熟知很多cases,好累。我的理解是,法律是一个社会的规范条文,所以这东西不是证实或者证伪这么简单,理解法律除了需要抽丝剥茧之外,还考验人的综合和联想能力。一句话,费时的熟练工种...

虽然我是三天打鱼两天晒网,deadline之前奋力突击类型的,但是真的从这门课学到了很多东西。理解一个社会制度远远比理解一个数理模型难的多...所以宪法学起来其实比税法之类的经济法难很多,就像以前常说的一句话,经济学家考虑的更多是效率而非公平(efficiency > fairness),而法学家考虑的是社会整体的诉求和运转规则。出发点完全是不一样的。利益分析简单,而情理分析就好难。


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