Akhil Reed Amar (Yale University) has posted Constitutional Innuendo on SSRN. Here is the abstract:
- In prior work, I have established two guiding principles for gleaning the one true meaning of the Constitution of the United States. The first principle is intratextualism--taking the text seriously requires that we closely compare and contrast the use of words and phrases in one part of the constitution with the uses of the same words or phrases in other parts. The second principle, related to the first, is holism. The meaning of the Constitution cannot be derived by determining the meaning of each individual clause and that combining that meaning by a mechanical procedure of addition: instead, the meaning of the Constitution is the meaning of the whole text from beginning to end.
- In this article, I develop a third principle, which illuminates the first two. Sextualism is the key insight that sexual innuendo has shaped America's basic constitutional vocabulary. It should come as no surprise that sex was on the mind of framers. By September 6, 1787, almost all of the delegates to the Philadelphia Convention had been separated from their partners for an extended period: the the result was a level of tension and frustration that exerted a powerful influence on the actual drafting of the constitutional text in a single week by the Committee on Style. It is surely no coincidence that on September 14, as the convention debated the extent of the "commerce" clause, Benjamin Franklin wrote to a friend with advice concerning his "commerce with the fairer sex." Moreover, the newly created legislature was called a "Congress"--hardly a subtle allusion to intimate relations. Nor is it a coincidence that George Washington proposed that the style of address for the newly created office of President should be "His Mightiness," reflecting the framing-era belief that mighty physical endowment was a prerequisite for high executive office. Similarly, the phrase "bear arms" in the Second Amendment would inevitably have called up the homophone phrase "bare arms"--a late eighteenth century idiom for disrobing.
- In a document designed for the people, not every detail is "explicitly" enumerated, lest the Constitution degenerate into a “promiscuous legal code” that would discourage the ardent attention of We the People. The Framer's use of sexual innuendo reminds us that communication need not be "explicit" to be effective. McCulloch taught us that certain governmental powers-like the power to establish a national bank-are implicit rather than minutely specified. The Ninth Amendment reminds us that rights, too, may be implicit. Just as the Framers used double entendre and sexual innuendo in the constitutional text to communicate implicitly ideas that would be inappropriate if made "explicit," so too they conferred powers and created rights that are "between the lines" of the "explicit" constitutional text.
- These very basic things often escape notice of clausebound textualists, who attend to words and clauses but often miss the spirit of the Constitution as a whole. Many of the features I have tried to highlight are not explicit legal commands, but are nonetheless rich with interpretive meaning. They clarify what the Constitution in fact is trying to say, to whom, and why. These sextual features of the document speak to us today, if only we will listen.
- Of course, sextualism is only a metaphor. The federal legislature does not literally engage in "congress." The presidency is not literally limited to those who are "mighty." But the lesson of constitutional innuendo is clear. To be faithful to the Constitution, we must attend both to what the words and phrases that make up the text and to America's unwritten constitution. The Supreme Court's recent flirtation with literalism is best understood as the constitutional equivalent of an extramarital affair--a betrayal of constitutional fidelity.
