An analysis of the early portions of America's Constitution, by Akhil Reed Amar, and America's Unwritten Constitution, also by Akhil Reed Amar. One interesting point the author makes in the latter book is that the written Constitution itself invites recourse to certain things outside the text. This includes Supreme Court opinions, Congressional statutes, and presidential proclamations. This is a welcome argument for those in the legal profession who disagree with the recent preeminence of Justice Antonin Scalia’s textualism movement. Scalia looks to the text of the Constitution to decide the cases before him, except when there are contrary precedents. Reed Amar, on the other hand, says that judicial decisions should be based on the people’s document (the Constitution) and not deviations from the document (incorrectly decided cases that are now on the books as precedent). A moderating correlary principle is that an erroneous precedent that improperly deviates from the written Constitution may in some situations stand if the precedent is later championed by the people (p. 238). In effect, the people ratify the principle into the Constitution by their popular acceptance of it. It all comes back to the Constitution - whether written or unwritten. For more on the written Constitution, look no further than America's Constitution. One interesting passage refers to the original U.S. Constitution's 3/5th Clause. I liked Reed Amar’s conceit that the three-fifths clause in the Constitution did not refer to 3/5 ths a slave, but rather a slave’s 3/5th apportionment as a basis for determining a state’s representatives to the House of Representatives (and also the electoral college, which would decide the presidency, the president who in turn nominates cabinet heads, Supreme Court justices, and other Article III judges). Reed Amar argues that if the point was apportionment, the Southern states would want slaves counted 5/5 (a full member of the population) so that their total population would be higher. Representation is based on total population and not people eligible to vote (which would not include children and women, who also could not vote). However, Reed Amar says that counting slaves as part of the total population does not make sense because eligible voters vote on behalf of themselves and their related non-voters (women, children), but in no case do voters vote on behalf of their slaves, except to continue to keep them in bondage. At the end of the day, if the slaves were not in bondage, many would flee the state. Thus, slave numbers should not have bolstered Southern state representation in the House of Representatives because no elected official from the South was representating the greater interests of slaves. As Reed Amar analogously puts it, If, because of serious conflicts of interest and circumstance, Parliament could not plausibly claim to represent Americans, surely masters could not plausibly claim to represent slaves. If George III had no right to speak for Americans after he sought to deny them their unalienable Right of Life, Liberty, and the Pursuit of Happiness, to reduce them under absolute Despotism, and to deprive them of jury trials and legal protection, surely slaveholders had no right to speak for their slaves.