Free America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar Page A

exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldomact, they are designed to be permanent.” Given that acts of constitution and amendment require great popular exertion that cannot be expected to occur routinely, it seems perverse to insist that We the People must repeat what We said whenever judges garble what We said the first time.
    Simply put, the basic structural argument against a broad reading of the Casey dictum is that Marbury -style judicial review presupposes that judges are enforcing the people’s document, not their own deviations. Departures from the document—amendments—should come from the people, not from the high court. Otherwise we are left with constitutionalism without the Constitution, popular sovereignty without the people.
    DOES A PROPER VIEW OF THE CONSTITUTIONAL SYSTEM, then, require that whenever the current Court believes that a past case misinterpreted the central meaning of some part of the Constitution, the justices must overrule the erroneous case? Not quite. Two moderating structural ideas come into play, both of which can be understood as “equitable” considerations that the Judicial Article allows to be taken into account. (That article features language explicitly empowering federal courts to hear cases “in Law and Equity” arising under “this Constitution.”) 23
    One structural and equitable notion may be stated as follows: Once We the People have struggled to put a rule or principle in the document, that rule or principle should not be altered, except by the people themselves. An erroneous precedent that improperly deviates from the written Constitution may in some situations stand if the precedent is later championed not merely by the Court, but also by the people. When the citizenry has widely and enthusiastically embraced an erroneous precedent—when even most initial skeptics have deemed the precedent to be fundamental and admirable—a court of equity may sometimes, consistent with the document’s emphasis on popular sovereignty, view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling. This is especially true if the erroneous precedent recognized an unenumerated right before its time. If this right then catches fire and captures the imagination of a wide swathe of citizens, it thereby becomes a proper Ninth Amendment entitlement even though the Court (by hypothesis) jumped the gun.
    As we have seen, unenumerated constitutional rights retained by the people under the Ninth Amendment (and the Fourteenth Amendment’s privileges-or-immunities clause) encompass, among other things, those basic rights that the people at large in fact believe that they have and should have under the Constitution. If enough people believe in a given right and view it as fundamental, then that right is for these very reasons a right of the people, a basic privilege of citizenship as understood by citizens themselves. It usually does not matter how the people’s belief arose—even if it arose as a result of a Supreme Court case that was wrong as a matter of text and original intent when decided.
    Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact—broad and deep popular endorsement—that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even