America's Constitution: A Biography
by Akhil Reed Amar
In the Beginnings
A review by Richard Primus
American constitutional law has never come fully to grips with the Civil War.
A constitution is a system of government, and no system of government fulfills
its basic purposes if it cannot settle divisive political issues by non-violent
means. In other words, a civil war is a constitutional failure. In the American
case, it may be said that the Civil War of 1861-1865 marked the catastrophic failure
of the Constitution of 1787.
Given the enormity of the collapse, it is remarkable that American civic culture has not internalized any real sense that the Constitution failed. One reason, of course, is that the victorious North did not tear up the written Constitution and start completely afresh. But there are also deeper reasons why Americans have been reluctant to see the Civil War and Reconstruction as regime-changing events. Long after Appomattox, the issues of the Civil War remained explosive in American politics. The status of African Americans was still a fighting matter one hundred years later, and even today national political cleavages track the geography of the old sectional division. Many Americans romanticized the Confederacy right through the twentieth century, suggesting that they could not wholeheartedly endorse the results of the Civil War. To ground the modern constitutional order in the Civil War and Reconstruction, therefore, would be to build the republic on a foundation about which many powerful people were at best ambivalent.
To regard the Founding as the one true source of our Constitution, by contrast, offers a great deal of comfort. If we are the direct successors to 1787, it must be the case that nothing earth-shattering has intervened. Celebrating the Founding allows us to repress the memory of slavery, of early America's failure to deal humanely and peacefully with that problem, and of the mass bloodletting that followed. The desire to erase that awful memory has been prominent for more than a century, ever since waving the bloody shirt ceased to be an effective electoral strategy for Northern Republicans. Woodrow Wilson, the first Southerner elected president after the Civil War, spoke on the fiftieth anniversary of Gettysburg of "the quarrel forgotten." And when the world war that followed Wilson's expression of relief spawned a tendency among historians to see mass warfare as the pointless tragedy of a blundering generation, the idea that the Civil War could have been a heroically generative event became less attractive still.
In the middle of the twentieth century, however, academic attitudes toward Reconstruction began to change. Huge black migrations from Southern farms to Northern cities altered the balance of power in national politics and made racial inequality an issue that neither major party could quite ignore. The confrontation with Nazism and the diplomatic and military imperatives of the early Cold War helped to incline more white Americans to think of the Civil War as an authentic crusade against slavery. Much of the historiography that had depicted Reconstruction as a foolish debacle was slowly discredited, in part because of its undertones (or overtones) of racism. In the 1970s and 1980s, historians such as Eric Foner emphasized the revolutionary nature of Reconstruction, depicting the era as a moment when Americans dared to make tremendous advances for justice. This new approach to history was not lost on constitutional lawyers. By the early 1990s, Bruce Ackerman presented Reconstruction as a second founding, a revolution in government comparable to that of the 1780s. Others have followed.
The idea of Reconstruction as a second American revolution is not yet orthodox in constitutional law. Judges still look to the eighteenth-century Founders for authoritative understandings of the Constitution, as if the changes that have occurred since are less than fundamental. In the broader civic culture, very few people think of John Bingham, Charles Sumner, and Thaddeus Stevens as constitutional founders on the order of Madison and Hamilton. But among academic experts in history and constitutional law, there is a growing current of scholars who recognize Reconstruction as an enormous shift.
Nobody believes in Reconstruction as the pivotal event in American constitutional history more than Akhil Reed Amar. In many articles and books, he has argued that the post-Civil War amendments fundamentally altered constitutional understandings inherited from the eighteenth century. He treats men such as Bingham, Sumner, and Stevens -- the leaders of the Republican Congress during radical Reconstruction -- as not just on a par with Madison and Hamilton but, if anything, more important in shaping the Constitution that America obeys today.
Now Amar has written a "biography" of the Constitution, in which he proposes, by his own description, "to offer a comprehensive account of America's Constitution." The aspiration to completeness defines the structure of the book. Like a medieval glossator, Amar proceeds through every single section of the Constitution, from the Preamble to the Twenty-Seventh Amendment, expounding as he goes. But the book is more than a series of local insights. Amar has a comprehensive theory of the Constitution, and it animates his readings from start to finish. It is both a theory of constitutional history and a theory of the legitimacy of the Constitution as the country's paramount legal authority.
Amar's theory is that of a radical democrat. In his eyes, the legitimacy of law is a function of its process of enactment: the more democratic the process, the more authoritative the law. Thus he contends that if a federal statute conflicts with the provisions of a treaty between the United States and a foreign country, the statute should prevail. His reasoning is straightforward. Treaties are made by the assent of the president and the Senate alone, but statutes also require the concurrence of the House of Representatives, a larger legislative body closer to the people themselves. An enactment of the House, Senate, and president together has more democratic authority than an enactment of the Senate and president without the House. By the same logic, the greatest of all authorities is the Constitution, which was enacted more democratically than any other law. Unlike statutes, which are passed by the people's elected representatives, the Constitution was adopted -- so the story goes -- directly by the people themselves.
It would be na´ve, of course, to imagine that the process by which the Constitution was written and ratified in the 1780s was democratic as we understand democracy. The disfranchisement of all women and almost all blacks, to say nothing of chattel slavery, would mock such a claim. Amar is keenly aware of these deficiencies, and he does not minimize them. He offers no apologia about virtual representation and little about the Constitution being democratic for its time. On the contrary, he mounts devastating criticisms of the ways in which slavery infected the Founders' Constitution, and these criticisms are not limited to well-known embarrassments such as the three-fifths compromise or the fugitive slave clause. Throughout his discussion of the original Constitution, Amar exposes the corrosive influence of slavery at almost every turn. The electoral college was a slave-ocratic mechanism, rigged to tilt presidential elections toward Southern candidates. The methods for allocating representatives in Congress yielded a system in which power within Southern states tilted toward the richer, slaveholding portions of those states, giving slaveowners disproportionate influence. And unlike many writers before him, Amar does not protest that at least the Constitution laid the seeds of slavery's eventual destruction: it would be comforting, he says, to believe that it did, but it didn't.
All that said, Amar does not reflexively trash the Founders for their failure to anticipate modern notions of democratic equality. Side by side with his relentless exposition of slavery's role, he describes little-noticed ways in which the adoption of the Constitution was a remarkably democratic act. Amar notes that many states that ordinarily limited voting to propertied citizens relaxed their property qualifications when it came to constitutional ratification, thus allowing a broader-than-usual electorate to decide the country's most fundamental question. This piece of history is not part of the common knowledge of constitutional lawyers, and Amar deserves credit for bringing it to the foreground.
After Amar is through analyzing the pre-Civil War Constitution, he turns to the Reconstruction amendments. It is here, in his account, that real democracy triumphs. Reconstruction ended slavery, decreed equality, and transformed huge numbers of black men from abject outsiders into citizens eligible to vote. No longer would racial caste belie the claim that the Constitution was the democratic instrument of the people. Indeed, part of the achievement of Amar's damning account of the ways in which slavery distorted the Founders' Constitution is that it presents the Constitution as having been inadequate at a time when -- and precisely because -- it failed to embody the will of the people in a properly democratic way.
Amar's theory of constitutional history and his theory of constitutional authority are thus two parts of an internally coherent whole. The Constitution is the paramount legal authority because it is the most democratic, emanating from the people themselves. Given that premise, Amar cannot locate the ultimate moment of enactment in the Founding, because a constitution so thoroughly infected by slavery cannot claim obedience by virtue of its democratic pedigree. Only later did emancipation, equal protection, and enfranchisement democratize the Constitution. For this reason, it must be to the Constitution of the 1860s, not to the Constitution of the 1780s, that modern Americans owe allegiance. For it was during Reconstruction that the people and the Constitution were finally brought together.
Amar's constitutional theory is elegant, but it is significantly flawed. As
a historical matter, his vision of Reconstruction is airbrushed to make it seem
more democratic than it really was. And as a normative matter, democratic enactment
cannot suffice to legitimate the Constitution, if only because of the passage
of time. Regardless of the process by which the Constitution was adopted, today
it compromises democracy by governing people who were unrepresented in its formation.
Since Reconstruction secures the democratic legitimacy of the Constitution in Amar's narrative, he needs to present the Reconstruction amendments as having been adopted in a democratically legitimate way. This takes some effort, and not only because the polity that elected the Congresses that drafted the Thirteenth and Fourteenth Amendments excluded all women and almost all black men. The Thirty-Eighth and Thirty-Ninth Congresses also refused to seat representatives from the former Confederate states. As Bruce Ackerman has argued, Congress never could have mustered the two-thirds vote necessary for constitutional amendment if the Southerners had been permitted to sit. Moreover, Ackerman points out that Northern Republicans could not credibly exclude Southern states on the basis of secession, because the North's bedrock constitutional contention during the Civil War was that no state could leave the Union.
If the Reconstruction Amendments were imposed by the fiat of conquerors rather than adopted by legitimate democratic means, then Amar cannot maintain his central argument that Reconstruction provided the Constitution with a truly democratic pedigree. This is a serious problem for him, and he knows it. In a book whose text occupies nearly five hundred pages, the only time Amar discusses another modern theorist's work at length is when he engages Ackerman's account and defends the Reconstruction Congress's decision to exclude Southern representatives.
Fittingly, he proposes to justify excluding Southern states from Congress in the name of democracy itself. "Reconstruction pivoted on a remarkable reinterpretation of the Article IV republican-government clause," Amar explains. Under that clause as interpreted by the Supreme Court, a state whose government was not republican in form would be excluded from representation in Congress. Taking his cue from Sumner, Amar contends that this rule directed the exclusion of the former Confederate states in 1865 and 1866, when the Thirteenth and Fourteenth Amendments were before Congress. Why? Because at that time, no ex-Confederate state permitted blacks to vote. After emancipation, such race-based disfranchisement was downright unrepublican. Accordingly, the Southern states were not qualified to sit in Congress precisely because they were insufficiently democratic. (Readers inclined to worry that Amar conflates democracy with republicanism should rest assured that earlier in the book he thoughtfully argues that those two concepts are less distinct in American constitutional tradition than we have been led to believe.)
The main glitch in the argument about republican forms of government, as Southerners protested at the time, is that most Northern states did not allow blacks to vote in 1865 and 1866. If race-based disfranchisement kept Alabama out of Congress, why could New Jersey sit there? Again following Sumner, Amar responds that disfranchisement in the North was of a different kind from disfranchisement in the South. In most Northern states, blacks constituted a tiny slice of the population. The disfranchisement of black voters in those states, though morally wrong, was not politically significant. In the South, however, blacks constituted more than a quarter of the population in every state. For Sumner, this meant that racial disfranchisement in Southern states made those more states oligarchies or aristocracies rather than republics. Amar echoes the claim, writing that "no truly 'republican' state circa 1865 had the right to disfranchise a quarter or more of its adult free male population."
This argument might make sense about Alabama and New Jersey. According to the most recent census when the Thirteenth and Fourteenth Amendments were debated, the population of Alabama was 46 percent black, and that of New Jersey was only 4 percent black. But if we compare other states, the argument falls apart. The same census recorded that in both Tennessee and Arkansas -- former Confederate states excluded from Congress during the drafting of the Thirteenth and Fourteenth Amendments -- blacks constituted 25.5 percent of the population. In Kentucky and Maryland, both Union states whose representatives sat continuously in Congress, the respective black populations were 20.4 percent and 24.9 percent. Can anyone really think that the difference between 24.9 percent and 25.5 percent is the difference between republicanism and oligarchy?
One suspects that Sumner's casuistry about states disfranchising "more than a quarter" of their people was neatly drawn to differentiate between Maryland, the blackest of the Union states, and Tennessee, the whitest of the Confederate ones. And one wishes that Amar had provided his readers with the relevant population figures, thus better enabling them to judge whether the principle of republicanism in fact succeeds in rescuing the procedural integrity of the Thirteenth and Fourteenth Amendments. Indeed, the omission of such important information indicates that readers should proceed with suspicion.
Moreover, the troubles with presenting the Reconstruction Constitution as having paramount legal authority because of its democratic enactment go well beyond the procedural irregularities of 1865 and 1866. Even if the Reconstructors had re-founded the Constitution through an unimpeachably democratic process, the idea that their deeds would have democratic authority today would founder on what might be called the inter-temporal problem of constitutional theory. That problem, in brief, is that nobody now living participated in ratifying the Constitution. Since the Constitution prevents political majorities in our own day from getting what they want, it constrains electorates that had no say in its formation.
If a polity democratically adopts limits on majority rule, those limits can be justified in the name of democracy itself: the people established a decision-making process, and now they live with it out of respect for that decision. But when a constitution outlives its adopters, it impedes the will of popular majorities on the basis of a decision in which the people bound had no role and were not represented. That is not democracy. (The problem could be avoided if the people today could freely change the Constitution, but the bar to amendment is set too high for this solution to succeed: a minority can block change by holding the support of just thirteen of the country's ninety-nine state legislative chambers, spread out across even the smallest states.)
To be sure, there are good reasons other than democracy for limiting the scope of majority rule. The rule of law is one, and concern for individual rights is another. But when such considerations justify limiting majority rule on the basis of an inherited Constitution, they do so in spite of the entailed compromise of democracy. No matter how democratically the Reconstruction Constitution was adopted, its democratic pedigree alone cannot be what establishes its authority today, because nineteenth-century Americans (like eighteenth-century Americans) had no democratic authority to bind the wholly different population that would reside in America in the twenty-first century.
Several constitutional theorists have tried to dissolve the problem of being constitutionally confined by the distant past by regarding "the people" as a personified and temporally extended entity. If the American people is a continuous moral agent that made the Constitution and now is governed by it, then the problem of one community making rules that bind another does not arise. Amar does not spell out the metaphysics of "the people," but his pervasive insistence upon democratic pedigree suggests that he regards the American people as a continuous entity for the purposes of defining self-government through time. Indeed, although the book's title states that it is the Constitution's biography that we are reading, Amar does not personify the document or make it an active character. The real protagonist of the book is the People, who enact and interpret and make and re-make the Constitution. "We the People" today are "We the People" of 1787 -- and more importantly, Amar would say, of 1868. In submitting to the authority of the Constitution, we merely accept what we ourselves agreed to.
This is a romantic obfuscation. Yes, national communities outlive individuals, and what happens in the history of one generation may constrain the behavior of those who follow. We inherit a particular set of problems and institutions that structure our politics, just as coming generations will inherit problems and institutions from us: if the federal government today spends trillions of dollars more than its revenues, future Americans may have to repay a large national debt. But we do not explain much about this complicated reality by saying that we chose the system we inherit, just as it would be perverse to justify the burden that fiscal deficits transmit to the future by saying that the whole nation over time has blessed the arrangement. It makes more sense to say that communities, like individuals, often operate under constraints that they did not choose and would not have chosen as an original matter.
Americans today have good reason to uphold the Constitution despite the fact that we did not choose it. A regime that establishes the rule of law, and protects unpopular minorities, and enjoys the loyalty of ordinary citizens, may be worth upholding even at the expense of a certain amount of democracy. Indeed, given the mystical nature of the assertion that "we" really did democratically agree to the Constitution, trying to ground its authority in inter-temporal consent suggests a lack of confidence in these other, less mysterious reasons for considering the Constitution authoritative.
Even if the Constitution cannot claim paramount legal status on the basis
of its democratic pedigree, it still might be possible to credit Reconstruction
with establishing the constitutional regime that Americans prize today. As noted
earlier, democracy is not the only justification for subjecting majority will
to constitutional limits. So if Reconstruction gave us the fundamental rights
and institutional arrangements that make the Constitution worth having, constitutional
history should give Reconstruction its due.
The idea that Reconstruction generated many of the most important principles of modern constitutional law is certainly plausible. One way or another, most fundamental rights that the Constitution protects are Fourteenth Amendment rights. Courts today deal with discrimination on grounds such as race and sex under the rubric of that Amendment's equal protection clause, and with the freedoms of speech and religion under its due process clause. (We often think of speech and religion as First Amendment concerns, but the First Amendment limits only the federal government. The rights listed in the First Amendment, and most of those in the remainder of the Bill of Rights as well, are guaranteed against state and local governments only through the Fourteenth Amendment.)
Amar contends that the rights protected under the Fourteenth Amendment today are immanent in the language of that amendment, properly understood. He is a self-described textualist, and a very creative one. And so he has little trouble reading the Fourteenth Amendment to require liberal and egalitarian arrangements that most modern Americans consider fundamental. Unfortunately, in showing how much can be done with a text, Amar often demonstrates by example why constitutional law should be skeptical of clever close readings.
Consider his contention that the text of the Fourteenth Amendment, properly read, prohibits discrimination on the basis of immutable characteristics. In modern constitutional law, immutability is a leading concern of equal protection doctrine. It is easier to justify legislation that discriminates on the basis of, say, occupation (a mutable condition) than legislation that discriminates on the basis of skin color (an immutable one). But the text of the Fourteenth Amendment merely says that no state shall deny any person the equal protection of the laws. It does not specify that it is more concerned with equality between blacks and whites than with equality between opticians and optometrists. For this reason, the concern with immutability is best understood as a mediating principle that judges use to interpret the clause, not as a principle inscribed in the clause itself.
According to Amar, however, the very text of the amendment should guide us to see immutability as a core constitutional concern. How so? Well, he reasons, immutable characteristics are generally those that people have by accident of birth, and the text of the Fourteenth Amendment deals with birth explicitly. Its first words are "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...." Amar recommends that we read "born" as the critical term. The amendment's preoccupation with birth, he suggests, points to a general principle of birthright equality, according to which no person should be legally disadvantaged on the basis of a characteristic -- such as race or sex -- which is a mere accident of birth.
This is a little silly. Yes, the word "born" appears in the text, but a reasonable reader would hardly derive a general principle of opposition to legal discrimination based on birth status from that fact. For one thing, the sentence containing the word "born" itself discriminates on the basis of an unchosen birth status, denying citizenship to those people born in the United States who are not subject to American jurisdiction. For another, the sentence in which the word "born" appears deals with citizenship rather than equality, and nineteenth-century law was quite comfortable with the idea that people could be citizens without enjoying equal rights with one another: women born in the United States were citizens but could not vote.
To his credit, Amar couches this argument as an elaborate suggestion rather than insisting on the point. But he is less moderate elsewhere -- such as in his contention that the Fourteenth Amendment incorporated the Bill of Rights against the states. As noted above, the Bill of Rights prior to the Civil War limited only the federal government. States were free to make their own rules about establishing religions, conducting searches and seizures, and so forth. Today, however, courts read the Fourteenth Amendment's due process clause to incorporate most of the substance of the first eight amendments. That is the legal rationale on which a state is today just as forbidden as the federal government to censor someone's speech or deny him a trial by jury.
As Amar has demonstrated in other writings, at least some of the people who drafted the Fourteenth Amendment intended it to incorporate provisions of the Bill of Rights against the states. What proportion of the amendment's ratifiers held that view, however, is at best a contestable question, and probably one on which historical scholarship will never be conclusive. Moreover, it is clear that courts did not apply the Bill of Rights against the states for many years after the Fourteenth Amendment was ratified. No Supreme Court decision limited state conduct on the basis of anything in the first ten amendments until 1897, and most provisions of the Bill of Rights were not incorporated against the states until several decades later. Accordingly, the incorporation of the Bill of Rights into the Fourteenth Amendment -- like the use of the immutability idea to apply the equal protection clause -- is better understood as a twentieth-century re-interpretation than as the product of nineteenth-century decision-making.
In Amar's view, however, the text itself shows that the Fourteenth Amendment incorporated the Bill of Rights. Central to his contention is that the Amendment "borrowed directly from the Bill itself with [its] language 'No ... shall ... make ... law ... abridg[ing]' -- all words lifted directly from the First Amendment. Here the very text of the Fourteenth Amendment pointed the careful reader to its tight interlinkage with the Bill of Rights." The attempt to use these words to establish that the Bill of Rights is incorporated within the Fourteenth Amendment is valiant and even ingenious -- but it is also slightly comical. The words "no," "shall," "make," and "law" are not obscure legal terminology, such that their use in one place points the reader to their use in another. ("Abridge" is a touch less banal, but only a touch.) The quoted words do not even appear in the same order in the First Amendment as in the Fourteenth, much less in a row as a coherent phrase.
Indeed, if find-a-word were a good method of constitutional interpretation, the Fourteenth Amendment might point less to the First Amendment than to Article I, Section Ten, which lists other restrictions on the powers of states. Article I, Section Ten shares with the Fourteenth Amendment not only the words "no," "shall," "make," and "law," but also the words "state" and "any" -- six common words rather than the First Amendment's five. What's more, these six words appear in the same order in the Fourteenth Amendment as in Section Ten: "No state shall ... make ... any ... law." With a logic at least equal to Amar's, the careful reader could infer that the Fourteenth Amendment's echoing Article I, Section Ten more clearly than it echoes any other constitutional provision indicates that the Fourteenth Amendment's only textual forerunners were those sections of the Constitution that specifically restricted the states. Restrictions on the federal government, such as those in the Bill of Rights, would be implicitly disclaimed.
Here and elsewhere, Amar's parsing of constitutional language is tendentious, and readers should keep their wits about them when assessing his textual arguments. A further illustration: in the course of an otherwise insightful argument that the Founders were more afraid of repression by armies than repression by navies, Amar purports to draw support from "pointed Article VI language describing the Constitution as the law of 'the Land'" (the emphasis is Amar's), as if those words meant that the Constitution imposed no limits on what the government could do on the water. But the reason that Article VI describes the Constitution as the "law of the land" is that the phrase is a legal term of art in use since the Magna Carta, not because the Framers chose words that would create a constitutional distinction between surf and turf. Nobody believes that the Navy could establish a religion so long as tithing and devotion were required only at sea.
Amar is a systematic thinker, so the periodic wackiness of his textualism is not likely to be mere noise. Instead, his readings express a prior set of theoretical commitments, and it is profitable to ask what theory would prompt Amar to believe that straining and squinting at the text as he does is a good way to interpret the Constitution. Perhaps the best way to understand what we might call his hyper-textualism is that wringing reams of meaning from the document's jots and tittles is positively desirable, if not strictly necessary, under Amar's substantive theory of constitutional legitimacy. For if the Constitution's claim to authority is that it is the democratic instruction of the people themselves, and if (as Amar has argued elsewhere) constitutional decision-making should proceed more by determining what the people really instructed than by thinking about judicially elaborated precedent or sound present policy, then constitutional law cannot get very far unless interpreters can divine a lot of meaning from a short and sacred text.
The implausibility of several of Amar's readings suggests the limits of textualism as a strategy for deriving constitutional law. Few students of the document will be more intelligent than he is, and fewer still will be more determined to understand its language and structure systematically, so if zealous faith in the text goes awry in Amar's hands, it is probably fated to go awry more generally. Legal interpretation must treat text respectfully, but plumbing individual words for subtle or hidden meanings is rarely a good way to approach the Constitution. To know the real Constitution -- that is, the system by which American government has actually operated and the constraints that do rightly limit electoral politics -- one should ask how decision-makers have behaved in practice and what fundamental values majoritarianism is prone to disserve, not just what the text says, and certainly not what the text could mean if subjected to homiletic exegesis. And no matter how cleverly one reads the Fourteenth Amendment, most of the modern doctrines that protect Americans against discrimination and against the deprivation of fundamental liberties are twentieth-century developments, not the commands of people speaking to us from Reconstruction.
When the present generation of federal judges was in law school, the Civil War was the chronological midpoint of American history. It was natural to see the Founding and Reconstruction as separate concerns. As the history of the United States comes to span four or five hundred years, however, it will become easier to perceive the entire sweep of events from the 1770s to the 1860s as a continuous century of nation-building. We are moving, slowly but perhaps inexorably, toward a perspective from which we can more easily see the Civil War and Reconstruction as part of America's origins.
Amar does a great service in advancing such a future perspective. By insisting that our Constitution is largely what Reconstruction made it, he helps to correct the prevailing tendency to focus on a few short years in the eighteenth century. For that contribution, all who work in constitutional law must appreciate this book. But just as it is a fallacy to locate the authority and the meaning of the Constitution in the 1780s, it is a fallacy to repeat the exercise with the 1860s, or with some combination of the two, or with any other period or periods of the receding past. Taking democracy seriously precludes imagining that generations now gone had the right to dictate our method of government today, and that is as true of generations gone one hundred years as of generations gone one hundred years before that. Taking constitutionalism seriously entails the willingness to temper simple democracy with other fundamental values. We love our Constitution, and we love democracy. But we cannot square the circle.
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