摘要：It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, funny phrasing, and odd language. Amar’s earlier book, America’s Constitution: A Biography, displayed his contagious enthusiasm for the Constitution and its history. Postmodern theories, the Frankfurt School, or economic determinism did not make an appearance in his holistic interpretation of the Constitution. But like many a biographer, Amar cannot admire his subject if it has great faults. Some biographers fail because their admiration overwhelms their objectivity, and they tend to minimize or ignore serious personal flaws. Amar, however, is too honest to ignore his subject’s blemishes. He is faced with the quandary of an imperfect Constitution. His answer is to bend, pull, and stretch the original into a better form— a constitutional photoshop for the twenty-first century. Amar appears to get cold feet in the face of “the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be.” Readers must judge whether his quest for perfection has overwritten, if not erased, the original image. In this sequel, America’s Unwritten Constitution: The Precedents and Principles We Live By, Amar tries to save the object of his affection from the success of Biography. Amar’s method, however, yields conclusions that many leading constitutional law scholars would find unacceptable. Under a strict originalist approach, the Fourteenth Amendment does not appear to prohibit segregation by gender. Critics like David Strauss argue that originalism would permit racial segregation by the federal government, and perhaps by the states too, and would not have incorporated the Bill of Rights against the states. An original Constitution might not provide for a right to privacy or recognize a woman’s right to an abortion. It could reject parts of the large federal administrative state in areas such as the environment and labor, and it could restrict the scope of freedom of speech,
关键词：Originalism; Constitution; Constitutional interpretation; History; Constitutional history
