America’s Constitution: A Biography
by Akhil Reed Amar
Random House. 672 pp. $29.95
During the Reagan years, many of the most prominent theorists at our law schools boldly argued either that the meaning of the Constitution was radically indeterminate or that, because the Constitution was a “living” document, judges should interpret it in light of contemporary values. It was folly, they insisted, to try to read our fundamental law according to some notion of “original understanding.” This politically precarious stance did not go unanswered, of course. Conservatives like Robert Bork and Edwin Meese led an aggressive defense of the “originalist” approach, arguing that it was the only alternative to rulings based on the idiosyncratic (and often highly political) views of judges.
In the decades since those heated disputes, Akhil Reed Amar of Yale law school has risen to prominence as a self-styled liberal originalist. Though a skilled practitioner of the historical methods often associated with conservative legal scholarship, Amar has found very different meanings in the wisdom of the founders and their successors in shaping the constitutional text. The latest installment in his ongoing project is America’s Constitution: A Biography, a book as informative and insightful as his previous ones—but ultimately, in its broadest conclusions, no more persuasive.
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America’s Constitution is a lovingly detailed, clause-by-clause exegesis of each of the Constitution’s provisions. Amar marries an at times densely legalistic analysis of these provisions to an overarching theoretical argument. As he sees it, the document’s diverse clauses are tied together by certain key themes, which he regards as the animating commitments of the founders.
Thus, against those who claim that the Constitution was written by and for propertied elites, Amar shows just how “populist” and “republican” it was for its day, comparing it with contemporary practice in England and in the colonies themselves before independence. At the same time, he contends that the original text was not only complicit with slavery but was suffused by it, especially through the insidious action of the “three-fifths” clause, which systematically over-represented the South throughout the federal government. What ultimately rescued the Constitution from this damning entanglement, Amar argues, was the founders’ faith in popular sovereignty. Through the amendment process, “We the People” would be perpetually able to strive for and achieve the Constitution’s “progressive alteration.”
Amar also stresses the founders’ “geostrategic vision”—their animating concern, that is, that the fledgling nation be strong enough to stand on the world stage—and sees this as the key to understanding their view of federal authority. Thus, in stark contrast to the earlier Articles of Confederation, the Constitution gave Congress broad authority not only to tax but to regulate commerce among the states. As for the Presidency, the founders intended to create a strong, energetic executive, one with especially wide prerogatives in our dealings with other nations.
Amar’s take on the role of the judiciary will be surprising to many. Echoing the view of a number of conservative scholars, he argues that, in their devotion to republicanism, the founders never meant constitutional review to be the special province of judges. George Washington’s first presidential veto was on constitutional grounds, as were many vetos by his successors, including Andrew Jackson’s rejection of the Bank of the United States. It was once common, too, for Congress to weigh in on these matters, debating the constitutionality of proposed legislation.
What the founders rejected, according to Amar, was not judicial review but judicial supremacy. The high court they envisaged would have a rather modest profile, reigning “supreme” chiefly within the sphere of the judicial hierarchy itself, not as the arbiter of all constitutional meaning. As originally intended, constitutional review encompassed the ordinary activity of all three branches, as well as of juries, with the people themselves retaining an important voice.
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As for the Bill of Rights and the other amendments, Amar reprises and refines arguments from his previous books. Here his innovation is to focus on the transformation wrought by the Civil War amendments, which tore up by its roots the original Constitution’s complicity with chattel slavery. Ratified during Reconstruction, these amendments, Amar writes, inaugurated “a constitutional revolution,” marking “a radical break” with the old order.
Here Amar’s interpretations become especially sweeping. In banning slavery and involuntary servitude, the Thirteenth Amendment (1865) “cast a wide net not merely over the nation’s economy but also over its social structure and its domestic institutions.” The Fourteenth Amendment (1868), which holds that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” was intended not just to protect newly freed blacks but, Amar writes, to repudiate “a multitude of inequalities.” No less important to him is the amendment’s “privileges and immunities” clause, which “codified a profound nationalization of American identity.”
Later alterations of the Constitution continued in this vein. “Much as zealous reformers in the mid-1860’s had enacted large wealth transfers from slavocrats to freedmen,” Amar asserts, “so a new generation of idealists in the mid-1910’s aimed to reduce anti-republican extremes of wealth and want,” giving us both a national income tax and the direct election of Senators (then still being picked by increasingly corrupt state legislatures). Subsequent amendments brought still more social change—the franchise for women and young people, the elimination of poll taxes, representation in the electoral college for the District of Columbia—in what Amar sees as an ongoing process of constitutional “democratization.”
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Amar’s exhaustive and meticulous analysis of the Constitution is refreshing in many ways. Done in an obvious spirit of veneration (the book’s opening chapter is titled “In the Beginning”), it departs from most other accounts in its sustained attention to the structure and institutional logic of the Constitution—as opposed to the glosses on it added by the Supreme Court. Amar provides insightful readings of many of the text’s least discussed but most significant provisions, and his interpretive themes breathe political and historical life into a document too often treated mechanically.
And yet, for all of Amar’s professions of fidelity to “original” meaning, this book has been transparently written to serve (depressingly familiar) contemporary political objectives. He selects the threads in his account with great care, weaving a tapestry that comes to bear a striking and unmistakable resemblance to modern liberalism. Amar devotes considerable space, for instance, to downplaying the founders’ commitment to property rights, evincing little understanding of property’s place in 18th-century political thought. When it comes to the Reconstruction amendments, he insists that they were a precedent for later federal measures aimed at seizing and redistributing wealth, even though the “property in question was the slaves whose human equality was, at the same time, receiving a profound if belated recognition.
More broadly, Amar attributes to the founders a view of the federal government’s reach that would have been profoundly alien to them. Congress’s power to regulate interstate commerce, he argues, was originally intended to apply to “all forms of intercourse in the affairs of life”—a position well beyond even the wildest flights of the New-Deal or Warren Court. As he surely knows, for most of American history (and certainly for the founding era) the powers of the national government were regarded as quite limited, leaving a deep residuum of “police” powers—over health, safety, and morals—to the states.
Most disappointing of all, perhaps, in light of his supposed rejection of judicial supremacy in favor of a more popular constitutionalism, is Amar’s obvious eagerness to pitch his arguments to the modern Supreme Court. In one footnote, he suggests that the Justices could have availed themselves of the Thirteenth Amendment’s prohibition against slavery in order to hold a state liable for failing to protect a child under the supervision of its social-welfare system. In another, he points to the Fourteenth Amendment’s “equal-birth principle” (that is, the equality before the law of “all persons born or naturalized” in the U.S.) as the best text for the Justices to have invoked when they struck down (on different grounds) an amendment to the Colorado state constitution that prohibited municipalities from enacting gay-rights ordinances.
As a touchstone for constitutional interpretation, originalism serves its purpose only when practiced in the proper spirit, a spirit that tries to insulate the interpreter from the whims and prejudices of his day. In the wrong hands, it can be all sail and no anchor, a tool for both judicial activism and government beyond law. The Constitution’s “real end,” Amar ventures at one point, “is the vast creative white space looming just beyond the latest amendment.” It is a space, alas, he knows too well.
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