The metaphor of a “law trapped in amber” has unexpectedly surfaced in recent U.S. Supreme Court decisions, raising intriguing implications for constitutional interpretation. Chief Justice John Roberts articulated this metaphor in United States v. Rahimi, implying that recent Second Amendment rulings should not be viewed as immovably rooted in historical context. This metaphor has since ripple through various cases and legal opinions, suggesting an indirect embrace of the concept often known as living constitutionalism.
This use of amber as a metaphorical concept, with origins in the liberal judicial thoughts of the 1970s, challenges the conventional preference of conservative jurists for static interpretation. Its application to a range of cases, including statutory interpretations and discussions around birthright citizenship, signifies a shift in judicial perspective. The metaphor was originally invoked by liberal figures like Justice Thurgood Marshall, who argued against the static interpretation of constitutional principles in Richardson v. Ramirez.
Roberts’ suggestion that legal principles once conceived as dormant may indeed have dynamic potential is indicative of tensions within the Court’s current conservative majority. Notably, Justice Sonia Sotomayor’s dissent in Trump v. Slaughter questioned the selective application of the metaphor. Meanwhile, Justice Brett Kavanaugh’s partial dissent in Trump v. Barbara applied the metaphor to arguments regarding historical exceptions in birthright citizenship laws, illustrating its expansive interpretive power.
This metaphor’s appeal may lie in its ambiguity, inviting interpretation by painting the now poetic image of law that is no longer passive but rather alive and evolving. As such, it seems to align with the principles underpinning the notion of a “living Constitution,” albeit without overtly aligning with typically liberal views. The metaphorical approach has sparked robust discourse among legal scholars and judges, as exemplified by a growing body of literature, including recent analyses published in law reviews.
Whether this metaphor will endure as a meaningful judicial device remains to be seen. For now, it acts as a consensus-building tool, masking underlying judicial conflicts over constitutional interpretation. Until the Court decisively moves away from metaphor and towards concrete legal principles, it remains captured—if not in amber—by its own evocative yet indeterminate language.
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