A Critical Review of America’s Constitution: A Biography by Akhil Reed Amar
Tommaso Pavone ([email protected])
4/10/2014
Akhil Reed Amar’s American Constitution: A Biography1 is an exceptionally well-research book
(containing some 128 pages of endnotes!) that seeks to provide a comprehensive and contextualizing
historical appraisal of all of the US Constitution’s textual components. As a heterodox work largely
devoid of a single theoretical or interpretive framework, Amar’s book is a constructive counterweight
to other constitutional exegeses, such as Bruce Ackerman’s We the People,2 whose primary focus is to
retrofit American constitutional history to conform to a Whiggish populist theory of constitutional
development. Yet this approach renders Amar’s contribution surprisingly elusive and difficult to
review: It would appear that to summarize America’s Constitution requires nothing less than a
reconsideration of Amar’s study of the constitutional text’s drafting, promulgation, and amendment
from 1787 through 1992 – an impossible task. To overcome this obstacle, this critical review employs
a more circumscribed strategy: I first provide an overview of Amar’s approach, drawing heavily from
the book’s postscript (pgs. 465-477); I then selectively extract seven particularly intriguing points
made by Amar throughout his book; and I conclude by delivering a brief critique of his text-centered
approach to the historical study of American constitutional development.
Synopsis: Amar’s Approach
Amar’s goal is exceptionally ambitious: to “offer a comprehensive account of America’s Constitution,
introducing the reader both to the legal text (and its consequences) and to the political deeds that gave
rise to that text” (pg. 465). His study begins, and in many ways ends, with the text itself. A selfprofessed “constitutional textualist” (pg. 470), Amar structures his book chronologically, beginning
with the drafting of Articles I through Article VII in 1787 and their ratification in 1788, followed by a
chronological analysis of all 27 amendments subsequently appended to the original text. To the central
pillar of “law” he then layers the insights of the disciplines of “history, and political science” to form
the “legs of the stool on which” the book rests (pg. 467). What emerges is an intriguing yet elusive
piece – part constitutional casebook, part constitutional history, and, as my critique will highlight later,
part textual originalist constitutional theory.
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2
Amar, Akhil Reed. 2005. America’s Constitution: A Biography. New York, NY: Random House.
Ackerman, Bruce. 1991. We The People: Foundations. Cambridge, MA: Harvard University Press.
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Seven Intriguing Points Delivered in America’s Constitution
Before plunging into a critical appraisal of Amar’s efforts, it is worthwhile to highlight some of the
most intriguing facts or arguments highlighted in America’s Constitution, which serve to make much
of the book a rather fascinating read. The following seven points particularly struck this reader:
1) The degree to which the Articles of Confederation were understood to be no more than a multilateral
treaty, and the Congress no more than an assembly of ambassadors. The Articles’ legal foundation was
more congruent with the statist-contractual approach of international law, where a breach of the contract
by either sovereign state meant the termination of the agreement, than the popular sovereignty, antisecessionist approach common to constitutional law. This rendered the Articles more proximate to the
modern United Nations than the modern United States, in contradistinction to the views of Lincoln and
others who considered the United States (with a capital ‘U’) to have been born in 1776 (with the
Declaration of Independence) (pgs. 23-28; 38-40).
2) The degree to which Canadian inclusion in the United States was seriously considered by the AntiFederalists – particularly vis-à-vis the incorporation of Quebec – and to which Switzerland served as a
potential model for the US to follow. Despite Quebec’s civil law system, which sharply contrasted with
the American states’ appropriation of the British common law tradition – Amar notes that geopolitical
considerations, namely the need to acquire territorial buffers against outside invasion, rendered the
incorporation of Quebec lucrative. The Anti-Federalists repeatedly invoked the success of the Swiss
Cantons in joining together, despite their cultural/religious differences, out of mutual national security
needs. The Federalists, who opposed such a plan, ultimately won this battle (pgs. 49-51).
3) The degree to which the pre-commitment to popular democratic ratification of the Constitution pushed
the Philadelphia Convention members to err on the side of incorporating more democratic and
participatory provisions within the text itself. The uncertainty regarding the prospects of the
Constitution’s ratification within the states – where, in many cases, voting restrictions were relaxed to
allow as many citizens (including some women) to have their say as possible – “shaped every major
debate at Philadelphia and often gave a decided advantage to more democratically defensible ideas” (pg.
67). Amar even goes so far as to argue against the general understanding that the Founders contrasted
democratic and republican government in favor of the latter – by his reading, the Founders used the
conceptual categories of “democracy” and “republic” interchangeably (pgs. 14-18).
4) The corroboration of Mark Graber’s thesis in Dred Scott and the Problem of Constitutional Evil3 that
the Constitution of 1787 was a pro-slavery constitution. The three-fifths compromise, combined with
the prediction of rising population within the southern states, sought to provide “slaveholding regions
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Graber, Mark A. 2006. Dred Scott and the Problem of Constitutional Evil. New York, NY: Cambridge University Press.
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extra clout” in both the electoral college for presidential elections and legislative apportionment for
congressional elections (pg. 97; also 87-98). This is particularly striking given that the British unwritten
constitution, so frequently a source of inspiration for the Founders, included a complete repudiation of
the idea eventually incorporated within the US Constitution’s fugitive slave clause. As Lord Mansfield
noted in the 1772 British case of Somerset v. Stewart, slavery was “odious” and a “high… act of
dominion” in violation of British law, which granted any slave immediate freedom upon stepping onto
British soil (pg. 258). In this view, the American Constitution symbolized a regression vis-à-vis the antislavery consensus within British common law.
5) The degree to which juries in the early years of the American Republic possessed judicial review
authority and were meant to function as a populist counterweight to trial judges. In retrospect, judicial
review by juries, particularly once the legal and constitutional corpus expanded and complexified,
seems rather dysfunctional, and this was precisely the reason why via a series of judicial
pronouncements “the jury’s role eventually shrank to the domain of fact” (pg. 241; also 236-242). Yet
the inclusion of a separate, democratic judicial counterweight to unelected judges is a rather intriguing
attempt to address the countermajoritarian difficulty, one that has been partially replicated in civil law
countries via the creation of non-judicial constitutional councils possessing judicial review powers (see,
in particular, the French Conseil Constitutionnel as described in Merryman and Perez Perdomo 2007:
Chpt. 18).4
6) Amar’s repudiation of Bruce Ackerman’s interpretation of the Reconstruction Amendments (the 13th,
14th, and 15th amendments), which casts them as “emerg[ing] from a process akin to civil disobedience,”
namely by their being imposed upon the southern states as conditions to rejoin the Union. Amar’s
counter-argument, namely that (1) the Reconstruction Amendments garnered three quarters of state
support even when counting the southern states (thus fully complying with Article V), and (2) were
never leveraged as conditions for re-entry, is persuasive (pgs. 364-375). Amar also notes how Section 2
of the 14th Amendment, which imposed a congressional representation penalty on southern states that
sought to disenfranchise voters, went largely unenforced and is part of the cause for Reconstruction’s
failure (pg. 377; 395). Here, Amar’s narrative is insightfully expanded by Graber (2013).5
7) The (selective) emancipatory power of conflict. War, both civil and foreign, sheds American blood, yet
it also is a force for freedom. Amar notes how in the aftermath of Reconstruction, the 15th Amendment’s
extension of voting rights to African American men was spurred in large part by their loyal participation
in the Union’s military efforts; indeed, women’s lack of participation in the war effort (not by their own
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Merryman, John H., and Rogelio Perez-Perdomo. 2007. The Civil Law Tradition: An Introduction to the Legal Systems of
Europe and Latin America, 3rd ed. Stanford, CA: Stanford University Press.
5
Graber, Mark A. 2013. “Constructing Constitutional Politics: The Reconstruction Strategy for Protecting Rights.”
Working Paper presented at Princeton University (Dec. 6).
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choosing, of course!) was cited as the reason not to extend the franchise their way (pg. 376). A similar
process occurred during the Vietnam War era, producing the 26th Amendment that extended voting
rights to all people old enough to be drafted – that is, 18 years of age. Amar summarizes the pattern as
follows: “As had previously occurred after the Revolutionary and Civil Wars and during World War I,
an extraordinary military mobilization thus led America to expand the suffrage” (pg. 447).
A Critical Appraisal
Amar’s book is particularly useful for the scholar or constitutional aficionado attentively reading the
Constitution, pondering over each individual clause, and referring to America’s Constitution to provide
the necessary historical context to fully appreciate said clause. The book seems organized for just this
purpose – an Appendix is provided reproducing the constitutional text, with page references next to
each individual clause to facilitate the retrieval of Amar’s correlative analysis.
But what are the consequences of accessing American constitutional history exclusively via the
Constitutional text? I argue that it clearly privileges a textual originalist approach to constitutional
interpretation, despite the fact that the book presents itself largely as a work of non-interpretive
constitutional history. Here, Amar follows in the footsteps of Antonin Scalia, who writes that “[w]hat I
look for in the Constitution is precisely what I look for in a statute: the original meaning of the text”
(1997: 38).6 Mary Ann Glendon (1997) similarly argues in favor of a “civil law” approach to American
constitutional interpretation – that is, an approach that begins from the text, and only then proceeds to
questions of legislative intent and historical contextualization. While Amar differs from both Scalia
and Glendon vis-à-vis the utility of considering legislative intent (Scalia and Glendon ultimately
consider legislative intent to be irrelevant for the purposes of constitutional interpretation), his use of
the constitutional text as a frame for historical study clearly emphasizes the priority of the text itself.
Fair enough – but what exactly renders Amar’s approach originalist? The answer may be found
precisely in Amar’s text-focused analysis: by only assessing critical junctures that resulted in a formal
constitutional amendment, Amar discounts judicial and populist reinterpretations of the Constitution
that occurred in between formal textual revisions. Consider, for example, Amar’s cavalier dismissal of
the New Deal era: “As for the New Deal, this alleged “constitutional moment” left virtually no textual
trace in the Constitution itself. Hence, my most direct engagement with the New Deal is via the Two
Term Amendment – an anti-FDR text” (pg. 475). Thus the reader relying on Amar’s reading of
constitutional history may well come to the conclusion that the New Deal backfired – that it curtailed
executive power – rather than enshrining a remarkable reinterpretation of the Constitution permitting
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Scalia, Antonin. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press.
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executive leadership in crafting the new American welfare state, the Congressional regulation of the
economy via a permissive reading of the Commerce Clause, and the progressive revolution in Supreme
Court jurisprudence enshrining new civil rights, criminal procedure rights, and political rights (from
Associate Justice Stone’s footnote no. 4 in US v. Carolene Products7 through the end of the Warren
Court era). All of these radical transformations begun with the New Deal, and all were justified by
reference to the Constitutional text. Living constitutionalists accommodate this form of incremental
constitutional development – Amar’s approach dismisses it.
A further consequence of privileging textual ratification and amendment over incremental
reinterpretation is to privilege the voice and agency of some political actors over others. The drafting
of the Constitution, along with its subsequent amendment, places the spotlight on the political actors
directly and formally engaged in these acts of constitution-making – the Founding Fathers,
Congressional officials, and Presidents. Courts, which played no role in the drafting of the American
Constitution or its subsequent textual amendment, are left out of the picture. This aligns with the
normative sensitivities of textual originalists, who favor greater judicial deference to the constitutional
interpretations of the political branches of government by embracing a more departmentalist
understanding of the Constitution.8 The contributions of popular constitutionalism, which emphasize
citizen participation in the constitutional reinterpretation and construction of America’s “unwritten
constitution” – are similarly dropped. Unsurprisingly, most scholars sympathetic to popular
constitutionalism decry exclusively textualist approaches to constitutional interpretation.
I conclude that buried within Amar’s historical contextualization of the American Constitution
is a subliminal endorsement of textual originalism. I say ‘subliminal’ because it is left implicit (aside
from the fleeting self-appropriation of the “constitutional textualist” label in the postscript (pg. 470)).
No wonder that textual originalists, like Michael Stokes Paulsen (2006),9 have praised the book,
whereas originalists holding elective affinities with popular constitutionalism, like Keith Whittington
(2005),10 have criticized it. The point is not that Amar should have incorporated the normative agenda
of living or popular constitutionalists into America’s Constitution. Rather, the point is that the positive,
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United States v. Carolene Products Co., 304 U.S. 144 (1938). Via the inconspicuous footnote no. 4, Stone took “the
opportunity to craft a new jurisprudence, one that would leave economic policy making to democratically elected officials
while not placing other civil liberties, especially those of small minorities, at the mercy of representatives of majorities”
(quoted in: Murphy, Walter F., Fleming, James E., Barber, Sotirios A., and Stephen Macedo. 2008. American
Constitutional Interpretation, 4th ed. New York, NY: Foundation Press: pg. 719).
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A view reinforced by Amar when he stresses the departmentalist understanding of US constitutional interpretation during
the early days of the American Republic (see pgs. 60-61).
9
Paulsen, Michael Stokes. 2006. “How to Interpret the Constitution (And How Not To). The Yale Law Journal 115 (8):
2037-2066.
10
Whittington, Keith. 2005. “Clothed With the Legitimacy of the People.” Virginia Law Review 91 (8): 2023-2046. Note
that many of the criticisms I leverage in this review parallel Whittington’s critique.
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empirical phenomena highlighted by living and popular constitutionalists – particularly the processes
and actors that engender incremental constitutional change in between periods of formal constitutional
amendment – deserved substantially more attention within Amar’s otherwise praiseworthy work.
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