What the Constitution can and cannot do
Event Date : 10/27/2017


/secure/images/gallery1/143-5PWYpunyUf8s.JPGSALISBURY — Akhil Reed Amar, Yale law professor and author, said gerrymandering was not why Hillary Clinton lost the 2016 election.

Amar spoke at the Salisbury School on Friday, Oct. 27, as part of the Salisbury Forum series of talks.

He spent about 20 minutes talking about the major themes of his many books, and then went into a question-and-answer mode.

Asked about gerrymandering and the 2016 election, he said Democrats “cluster in cities,” while Republican voters tend to inhabit rural districts.

So while a Democratic presidential candidate might win an urban district by an 80 percent to 20 percent margin, they lose the less populated districts by, say, a 55-45 percent margin.

“A ‘wasted vote’ is one that goes to a candidate that doesn’t need it” in a district where the margin is already lopsided.

He was asked if Russian propaganda had influenced the election, if the Russians had “hacked” the election, and whether the Supreme Court could possibly nullify the election of Donald Trump as president.

“I’m going to be careful here,” said Amar. “I voted for her. But no, the Supreme Court should not be in the business of undoing presidential elections.”

The Constitution is clear: Presidents pick judges, not the other way around. He said he was disturbed by the year 2000 Bush v. Gore decision on this basis.

He was skeptical about the idea of voting machines being compromised by Russian hackers.

“I want to see some evidence,” he said. “We have too many conspiracy theories.”

And as for the idea that social media ads created by Russian malefactors tilted the election, Amar was blunt.

“Well, shame on people for being stupid.”

“We have to blame ourselves,” he continued. “Our side didn’t show up.

“What’s the solution? It’s called the next election.”

Asked what “strict construction” means when talking about the Constitution, Amar said that phrase and its counterpart, “judicial activism,” often really means “a decision I don’t like.”

He said a “charitable” interpretation is that “strict constructionists” pay “particular attention to the text and history and the structure of the Court itself,” as opposed to case law and precedent, “which may go somewhere else.”

“‘Strict construction’ is not a right-wing meme.”

He said Supreme Court Justice Hugo Black, appointed by President Franklin D. Roosevelt in 1936, always carried a copy of the Constitution with him.

“What a weird fellow,” said Amar, as he started pulling small paper-bound copies of the Constitution out of his pockets, like a conjuror producing a bumper crop of rabbits from unlikely places.

Black, a former senator from Alabama, came on the Court when the country was firmly and legally segregated and the principle of one man, one vote was not honored.

But Black noted that the Constitution (as amended) mentioned all the things that were denied certain citizens, and concluded that the Constitution — in particular the Bill of Rights — was not being applied to the states.

“Black says, ‘I’m going to take this seriously.’”

As such he was the “driving force of the Warren court” some years later.

And as such he could be called a “strict constructionist.”

Amar said Black’s view of the First Amendment is echoed in the Citizen’s United decision.

“Citizens United is misunderstood,” he said. “People made an anti-Hillary movie. I don’t think in America you can shut down a movie.

“‘Oooh, but it’s a corporation!’ Well, so is Random House,” he said, waving one of his Random House-published books.

“And the last time I looked, the New York Times and Yale were corporations. Do we make a distinction between media and non-media corporations?

“I don’t want Donald Trump to be able to shut down the New York Times or the National Broadcasting Corporation.”

Amar was asked if there are any other countries with the same pride in their constitutions.

“Maybe not,” Amar said. “I don’t think the Canadians do. Their constitution didn’t change the world.”