America's Constitution: A Biography (Hardcover)

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Editorial Reviews

From Publishers Weekly

Starred Review. You can read the U.S. Constitution, including its 27 amendments, in about a half-hour, but it takes decades of study to understand how this blueprint for our nation's government came into existence. Amar, a 20-year veteran of the Yale Law School faculty, has that understanding, steeped in the political history of the 1780s, when dissatisfaction with the Articles of Confederation led to a constitutional convention in Philadelphia, which produced a document of wonderful compression and balance creating an indissoluble union.Amar examines in turn each article of the Constitution, explaining how the framers drew on English models, existing state constitutions and other sources in structuring the three branches of the federal government and defining the relationship of the that government to the states.Amar takes on each of the amendments, from the original Bill of Rights to changes in the rules for presidential succession. The book squarely confronts America's involvement with slavery, which the original Constitution facilitated in ways the author carefully explains.Scholarly, reflective and brimming with ideas, this book is miles removed from an arid, academic exercise in textual analysis. Amar evokes the passions and tumult that marked the Constitution's birth and its subsequent revisions. Only rarely do you find a book that embodies scholarship at its most solid and invigorating; this is such a book.
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From The Washington Post

By granting federal judges lifetime tenure, our Constitution did not merely seek to guarantee the independence of the judiciary but also its stability. Thus the recent twin vacancies on the Supreme Court portend dramatic changes in the personality of an institution not built for hairpin turns. But the uniqueness of the moment has largely been lost to common perception because the political rhetoric surrounding it is so familiar. When President Bush first introduced John G. Roberts Jr., who ultimately became his choice to replace the late William Rehnquist as the 17th chief justice, Bush said he was confident that Roberts "will strictly apply the Constitution" and would "not legislate from the bench." The president chose his phrases carefully: "Strict construction" of the actual words of the Constitution has been political code for some time now. Conservatives have been calling for unrelenting adherence to the sacred founding text since the 1960s in the wake of decisions like Griswold v. Connecticut, which struck down a state ban on contraceptive sales; Justice William O. Douglas, speaking for the court, determined that there was a constitutional right to marital privacy divined because the "specific guarantees of the Bill of Rights have penumbras formed by emanations from those guarantees." (Ironically, during his confirmation hearings, Roberts agreed with the result in Griswold and with the fact that there is a constitutional right of marital privacy.)

But leaving aside the shapes found in the shadows, what exactly does the Constitution say? It's a fair bet that many on both sides of the "strict construction" debate don't really know; after all, a recent poll by the American Bar Association indicated that nearly half of all Americans couldn't even identify the three branches of government.

Thus Akhil Reed Amar's America's Constitution: A Biography is auspiciously timed. The book's aim -- in the words of Amar, a professor at Yale Law School -- is "introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to the text." This volume is nothing less than a word-by-word examination of the controlling phrases in the Constitution, beginning with the preamble and continuing through the 27th and most recent amendment. The result is a book that is elegantly written, thorough but concise, and consistently enlightening. As the subject suggests, however, it is far from light reading.

In college, I was taught that the Constitution was essentially a reactionary document, a view that had become standard in the wake of the historian Charles A. Beard's epochal 1913 study, An Economic Interpretation of the Constitution of the United States. Beard had contended that the Declaration of Independence contained a broadly idealistic vision of American democracy premised on John Locke's notion that "all men are created equal." The Constitution, on the other hand, was meant to serve the interests of the wealthy; it subverted democratic ideals, especially with its odious compromise providing that each slave be counted as three-fifths of a person for purposes of determining the population upon which congressional districts would be based.

Not so, Amar argues. Beginning with its ringing first words -- "We the People of the United States" -- the Constitution, in his view, embodies a profoundly democratic vision of the nation it summoned into being. He points out that the ratification process for the new Constitution "allowed a uniquely broad class of citizens to vote" for the delegates to the state conventions that approved the document -- often reducing (or, in the case of New York, entirely abandoning) property qualifications for free adult males wanting to vote. While an electorate that excluded more than half the voting-age population is nothing to celebrate by contemporary lights, Amar notes that at the time "all this was breathtakingly novel. In 1787, democratic self-government existed almost nowhere on earth." He buttresses this point repeatedly as he analyzes the Constitution's provisions, emphasizing, for example, Madison's celebration that the Constitution established "no qualification of wealth, of birth, of religious faith, or of civil profession" for election to any federal office, including the presidency.

Indeed, Amar posits that the idea of a fundamental equality between citizens was pivotal if the Constitution was to accomplish the strategic aims of the federalists, who wanted to create a durable union with a united defense. They were inspired, in large measure, by a fear that the former colonies were headed the way of Europe, a continent of pocket sovereignties beset by perpetual rivalries and wars. By emphasizing the conviction that power was derived from the people rather than from the states, the Framers found an intellectual foundation for a perpetual union from which no individual state could then withdraw.

That vision, however, collided with the reality that the sovereign states had to be persuaded to join. To accomplish that, the Framers adopted the three-fifths rule, which guaranteed that the slaveholding states, which would be outnumbered in the new Senate, could offset that advantage by wielding political authority in the House greater than their actual number of voters. Indeed, in one of his most fascinating asides, Amar argues that the electoral college -- often derided as one more anti-democratic mechanism intended to prevent the people from directly choosing their president -- was in fact an element of this compromise with the South. Direct election of the president, he argues, was impossible in 1787; after all, before the rise of political parties, presidential candidates were virtually unknown outside their home states. The point of the electoral college, which apportioned votes among the states based on their total number of representatives in the House and Senate, was to extend the legislative power that the South had achieved with the three-fifths rule to the executive branch as well.

As one expects from the best history, America's Constitution illumines many contemporary debates. One of the book's principal lessons is an unsurprising one: Even careful attention to the actual words of the Constitution can lead to interpretative disputes. For example, as was often evident during the Roberts hearings, many on both sides of the aisle in Congress have been greatly chagrined by a series of Rehnquist court decisions espousing a view that observers have labelled "the New Federalism." These opinions have struck down congressional enactments on the grounds that they do not fall within the powers granted Congress under the "commerce clause" and require that the issues addressed be left to the states. (Article I empowers Congress "To regulate Commerce with foreign Nations, and among the several States. . . . ") One reason these decisions came as such a surprise is that "Commerce" has traditionally been read by the Supreme Court as referring to commercial activity, leaving Congress free to act whenever there is any national economic effect to the conduct it has sought to regulate. But in 2000, in United States v. Morrison, the Rehnquist court struck down a portion of the 1994 Violence Against Women Act that had created a federal right to sue for gender-inspired violence, with the chief justice stating that the commerce clause still requires "a distinction between what is truly national and what is truly local." In these pages, Amar contributes a novel interpretation that might clarify the present debate and even bolster the New Federalism. He notes that " 'commerce' also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life." So read, Congress's power to act would hinge not on the question of whether an activity had a potential economic effect but whether "a given problem genuinely spilled across state or national lines."

On the other hand, Amar also emphasizes that contemporary judicial power, in which even the supposedly conservative Rehnquist court freely declared acts of Congress constitutionally out-of-bounds, may itself be a departure from the original text, notwithstanding the mantra-like invocations of "strict construction." The Constitution speaks repeatedly of a "supreme Court" -- with, as Amar points out, a small "s." As envisioned by the framers, the judicial branch was clearly subordinate to the other two. Judges were selected through the combined power of the president and Senate, and the courts' authority to hear appeals was to be exercised "with such Exceptions, and under such Regulations as the Congress shall make." The size of the Supreme Court and the very existence and location of inferior federal courts were purely matters of congressional will. Thus the words of the Constitution give little reason to anticipate that the Supreme Court, for example, would decide a presidential election, as it did in 2000, rather than leaving the matter to Congress. Amar's gloss on the text helps explain a growing cleavage on the right in which congressional conservatives like House Majority Leader Tom DeLay (R-Tex.) have recently criticized even the Rehnquist court for having far overreached its constitutional role.

I have only one cavil with this book, and that does not deal with its merits but with the way it is being marketed. Amar's publisher calls this a "general-audience book." If that means that Amar writes with ease and precision and largely avoids the desiccated abstractions of constitutional analysis -- no lay person would want to try to understand the differences between "strict scrutiny" and "medium scrutiny," for example -- it is surely true. But the subtitle "A Biography" suggests that, like recent popular volumes about John Adams, George Washington and Alexander Hamilton, this is another exciting story of America's founding. Amar is a chaired professor at one of America's best law schools, and his book is, at heart, a scholarly work of intellectual history, accompanied by 128 pages of endnotes. It is about ideas and words, not personalities. Even James Wilson, whom Amar promotes as a framer whose significance and wisdom have been overlooked, appears here only as a voice without a body or biography.

I expect to be taking Amar's volume off my shelf for years to come as an indispensable reference whenever I want to know more about the actual words that underpin contemporary constitutional debates. But there is no dramatic arc to this book, no story to its history: It simply goes from the front of the Constitution to the back. It is, however, an uncommonly engaging work of scholarship and deserves to be valued as such.

Reviewed by Scott Turow
Copyright 2005, The Washington Post. All Rights Reserved.

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Product Details

• Hardcover: 672 pages
• Publisher: Random House; Book Club edition (September 13, 2005)
• Language: English
• ISBN-10: 1400062624
• ISBN-13: 978-1400062621
• Product Dimensions: 9.1 x 6.1 x 1.8 inches
• Shipping Weight: 2 pounds (View shipping rates and policies)
• Average Customer Review: 4.5 out of 5 stars  See all reviews (33 customer reviews)
• Amazon.com Sales Rank: #179,079 in Books (See Bestsellers in Books)

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74 of 80 people found the following review helpful:

5.0 out of 5 stars A holistic view of the Constitution, October 31, 2005

By	R. Price "caesar_42" (Liverpool, New York) - See all my reviews (REAL NAME)

Constitutional scholars are familiar with the quality and innovation of Amar's previous works and this brilliant new book will not disappoint. Of course, some will react negatively to the very title. By calling it a "biography," many scholars will immediately be hostile because it implies a "living" Constitution, which means "judicial activism." Amar uses biography because the Constitution is a living entity, and his account looks at its "birth" in 1787 through its maturation (i.e. amendments) up to the present. The sheer immensity of this project is overwhelming. Amar examines the meaning of nearly every provision of the Constitution. He looks at the document from a holistic perspective, seeking to incorporate the best elements of legal, historical, and political science scholarship in order to achieve a full representation of its meaning. While the length of this work is impossible to summarize in this short review, some things should be noted as particularly original. Amar highlights the interesting fact that the original Constitution was ratified in a more democratic and popular way then is commonly supposed; most states removed the suffrage limitations and allowed near universal (white) male suffrage. Another point of interest is the emphasis of geostrategic security and the related issue of unilateral succession, which Amar argues was not constitutionally permissive. This is only the tip of the iceberg, and I highly recommend this book. Amar's writing style is engaging and capable of understanding even by the layperson who does not have an obsession with the Constitution. For those, like myself, who are constitutionally obsessed, Amar presents refreshing and innovative approaches to many constitutional provisions, some of which modern scholars tend to ignore.

I was pleased to see that Amar noted in his postscript certain limitations to his study that I became concerned of during my reading. First, the meaning he describes is his own opinion on the issue, and is often surprisingly tentative in its conclusion. This book is not constitutional gospel; it is intended to stir debate and critical disagreement, of which there are multiple assertions capable of attack; for example, I find his argument that "commerce" was understood to encompass interactions not limited to economics unconvincing. Second, and more important, is his admission that his account emphasizes the written constitution and largely ignores the unwritten (or, more properly, unenacted) portions of our constitution, such as judicial interpretation, foundational statutes, and norms and practices of our system. I sincerely hope that someone, perhaps even Amar, takes up his call for another book on this unwritten aspect of our constitutional tradition.

58 of 68 people found the following review helpful:

5.0 out of 5 stars A Remarkable Achievement, September 18, 2005

By	Student Of History (Los Angeles, CA) - See all my reviews

Professor Amar advises U.S. Senators and the writers of "West Wing" on our constitution. He's also one of the most popular undergraduate professors at Yale. Thus I wasn't surprised that this biography of our Constitution was thoughtful and remarkable in its scope. What did surprise me was how easy it was to read and how fascinating it was on every page. This book should be required reading for Supreme Court Justices and high school American History teachers, and all sorts of folks in between.

18 of 19 people found the following review helpful:

5.0 out of 5 stars great intro to the constitution, June 2, 2006

By	Jon Bornholdt (Schweinfurt Germany) - See all my reviews (REAL NAME)

Amar explains in his postscript that his aim in writing this book was "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." He has achieved this aim splendidly. This phrase-by-phrase guided tour through the document never fails to inform and provoke, whether or not one agrees with its author (and I don't always). It's also a very approachable book, in terms of both style and content. The knowledge base assumed here is considerable, but not forbidding: anybody with a good working knowledge of the Seven Articles and the better-known Amendments ought to be able to thread his way profitably through Amar's lucid and energetic narrative.

Amar considers himself a "textualist," which as far as I can tell amounts to a kind of principled "public-meaning" originalism of the kind advocated by Oliver Wendell Holmes and Robert Bork. His (very) close reading of the text is always informed by a knowledge of the range of plausible meanings available to 18th-century users of a given word or phrase, and generally (with some crucial exceptions--see below) by a comprehensive familiarity with the historical circumstances that led to the adoption of that word or phrase. At the same time, he stresses that the source of the Constitution's meaning must be located in the stated AND UNSTATED intentions of the document's authors AND RATIFIERS, to the extent that those intentions can be reliably recovered. In itself, this is an admirable approach; it avoids both the pitfalls of crude authorial-intent originalism (i.e., interpreting the Constitution by pretending to read James Madison's mind) and those of "loose constructionism" (i.e., interpreting the Constitution to mean anything we can plausibly strong-arm the text into saying), and we feel we are in the presence of an honest and well-informed guide whose ideological commitments take a back seat to his desire to share what he knows. It's also refreshing to encounter a politically liberal philosopher of law who unabashedly cares about literal meaning and authors' and ratifiers' intent--thus giving the lie to the silly claim that interpretive philosophy is a mere function of political orientation. The devil is in the details, however, and Amar has his share of hits and misses. I'll give one example of each.

The virtues of Amar's textualism are very much in evidence in his analysis of the Preamble. Contrasting the ratification process of the Articles of Confederation with that of the Constitution, Amar persuasively argues not only that the Union formed under the Constitution was legally indissoluble by unilateral secession, but that it was so understood by its authors and ratifiers. He secures this result by a close reading of the phrase "more perfect union": the proposal of such a union, Amar demonstrates, was based at least in part on the legal (and legally indissoluble) union of England and Scotland in 1707. Moreover, as Amar reminds us, it was widely agreed by Federalists and Anti-Federalists alike that the new government would be impossible to back out of: for the Feds this was, if anything, an advantage (albeit one to keep quiet about), while for Anti-Feds it was deplorable and dangerous. A nice feature of this analysis is Amar's reading of the Feds' relative silence on the issue of secession: had it been generally understood that unilateral secession would remain as a sovereign right of states under the new Constitution, the Feds would certainly have stressed the fact in order to reassure and win over their opponents. They didn't. All of this--the historical background of the union of Scotland and England, the explicit pronouncements of the participants in the great debate on ratification, and the "roaring silence" of the Federalists on the issue of unilateral secession--is used to give dispositive content to a phrase normally dismissed as a rhetorical flourish. (To be sure, the Court itself appealed to the phrase "more perfect union" in Texas v. White, its 1869 decision disallowing secession; but the reasoning in Texas is tortuous and unpersuasive, ascribing a weirdly persisting occult validity to the Articles of Confederation except as explicitly overridden by the Constitution. Amar's account is much cleaner and more intuitive.)

Now for an example of Amar's occasional tendency to privilege dictionary definitions over plausible, contextually determined, and historically informed readings. Amar makes much of the fact that the word "commerce" had at the Founding, and retains today, a range of meanings that go beyond simply "trade": the word could also be used to mean "all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets" (p. 107). Thus, in his opinion, the Commerce Clause has been too narrowly construed in modern jurisprudence; a return to the Gibbons v. Ogden reading, which Amar evidently prefers on ideological grounds, might be bolstered by the assumption that the Framers intended the broadest possible construal of the word "commerce" in the first place. This is wildly implausible. A glance at Article 1, Section 8, shows a list of specific powers granted to Congress; the commerce power is sandwiched between the power to "borrow money on the credit of the United States" and the power to "establish a uniform Rule of Naturalization." Clearly, a general grant of power to regulate "all forms of intercourse in the affairs of life," etc., has no place on such a list. Madison's remarks in Federalists 42 and 45 are surely also relevant here: in both numbers, Publius treats "commerce" as a mere synonym for "trade." Nor is this an idiosyncratic reading; to the best of my knowledge, it's how the clause was read by all sides in the ratification debate. The moral here is that "public meaning" isn't enough to license an interpretation: some "live" meanings of words are simply disallowed by context. (In the Commerce Clause, for example, "Indian Tribes" doesn't mean tribes in India.) I'm no kind of expert in this field, but it certainly strikes me as more plausible to ascribe the broadenings and narrowings of interpretive approaches to Congress's "power. . .to regulate commerce" to fluctuations in the scope and authority the Court has chosen to read into the "necessary and proper" clause. In other words, what's been going on here for the better part of two centuries is a debate not over the meaning of "commerce," but of "power" and "regulate."

There is immensely more to this book than just the above two arguments, of course: I selected them merely to illustrate the kind of analysis Amar is engaging in here, and the degree of focus and care required both to appreciate and to criticize this kind of work. For the rest, I find Amar's focus on the Reconstruction Amendments as the keystone of the retooled Constitution to be absolutely on target (though at the end of the day I don't see as much difference as he does between his own approach to the legitimacy of Amendments 13 and 14 and Bruce Ackerman's approach), and his defense of the Incorporation Doctrine about as convincing as any I've read. And there's much, much more--fascinating analyses of the long-term effects of the 12th and 22nd Amendments, speculations about amendment paradoxes (I'm a sucker for these), a disquieting discussion of the possibly unconstitutional and unworkable legal machinery governing presidential succession, and on and on.