Context and Consequences: On Akhil Reed Amar’s “The Words That Made Us”

August 3, 2021   •   By Joel Seligman

The Words That Made Us: America’s Constitutional Conversation, 1760–1840

Akhil Reed Amar

AKHIL REED AMAR, the Yale Sterling Professor of Law and Political Science, is one of the nation’s leading constitutional historians and legal analysts, as well as the author of several earlier studies of the Constitution. As his postscript, acknowledgments, and notes to his new book, The Words That Made Us, record, Amar has read virtually every major author — and there are many leading authors on the Constitution — and is a man of strong views, “a product of law school culture […] and here is my bottom line: Almost everything that Charles Beard and his modern-day debunking followers have said about the Constitution’s launch is either dead wrong or more wrong than right.” Beard should not feel too bad. Throughout The Words That Made Us, Amar criticizes Adams, Madison, Jefferson, Calhoun, and Jackson, among other leading politicians, and stakes out a distinctive position among the Constitution’s many interpreters. This alone justifies the book.

The Words That Made Us is Amar’s most ambitious work yet, the first book of what he envisions to be a definitive three-volume reinterpretation of constitutional history and legal analysis. The work, with its comprehensive scope, incisive analysis, and storyteller’s gifts, is frequently provocative and sweeping in its simultaneous grasp of politics and law.

The great strength of The Words That Made Us is to place constitutional history in a geostrategic context.

Amar begins somewhat unusually not with the 1763 Treaty of Paris, the 1764 Sugar Act, or the 1765 Stamp Act, each long recognized overreaches by Great Britain on the way to the American Revolution, but rather with the 1760 death of George II and the advocacy of James Otis Jr. Otis, largely forgotten today, was in young John Adams’s view the man who sowed the seeds of the American Revolution with his five-hour argument in the Boston Superior Court, urging that writs of assistance by which the British could collect taxes in the Colonies were tyrannical and void as against the unwritten British Constitution. In Adams’s lionizing view published decades later, Otis attacked Great Britain’s right to taxation without representation and slavery, two themes Otis clearly articulated in his 1764 pamphlet, The Rights of the British Colonies Asserted and Proved.

To Amar, Otis was important because he was the first prominent advocate to begin the transformation of the Colonies from loyal and devoted followers of the king of Great Britain to Americans who claimed the right to be an independent nation. Amar captures the spirit of the times. This was like a divorce between parents who once were devoted to each other. Otis’s mind unfortunately deteriorated before he could see his argument bear fruit, before Taxation without Representation became the rallying cry of the Tea Party.

Amar persuasively documents that the Americanization of the Colonies was enabled by the newspapers of the day, which helped nationalize dissent. The ability of writers and state legislators to speak to each other was the essence of the American conversation, a leitmotif of Amar’s narrative.

Amar’s emphasis on the significance of newspapers distinguishes his study of the earlier state constitutions from the celebrated work of Gordon Wood and others: “[A]ll of the great founding fathers were early sires and children of America’s emerging newspaper culture.” All of the Big Six Founders — Washington, Adams, Jefferson, Madison, Franklin, and Hamilton — were prodigious writers and in effect self-publicists, whose essays, speeches, and official statements dominated the press. Washington was a shrewd reader of the papers; Jefferson and Madison champions of a free press. In contrast, a low point in Adams’s ill-fated presidency would be the enactment and enforcement of the Sedition Act to fine and imprison hostile publishers and journalists. The act failed, but not before initiating at least a dozen prosecutions under what Amar aptly terms the “faux federal common law of seditious libel.”

In Amar’s view, the critical protagonist in the transformation of the disparate Colonies into an American nation was George Washington.

Praising Washington is hardly unique, but what Amar urges is that our view of Washington’s contribution to the United States Constitution vastly understates his significance. Much of the substance of the United States Constitution had already been fashioned in state constitutions enacted before the 1787 Constitutional Convention. The United States Constitution was to be written, unlike the British system. Democracy and republicanism, not a king and nobility, were to rule. The United States Constitution, unlike the unsuccessful Articles of Confederation, was to be amendable, and would stake out in popularly understandable terms fundamental rights. In the wisest versions of the state constitutions, the states held multiple votes for an expanded electorate of eligible citizens to choose whether to draft a new constitution, hold a special election to select convention members, and then hold a final vote to ratify the new state constitution. These procedures were paralleled in the adoption process of the United States Constitution, which famously begins: “We the People.” Amar repeatedly emphasizes that “The American People” were the implicit authors of the Declaration of Independence and the Constitution.

But the 13 sovereign states were reluctant to surrender power to a national authority and did so only begrudgingly to the Articles of Confederation, informally established in 1777, formally approved only in 1781 as the Revolutionary War was ending. The Articles clumsily oversaw the American Revolution but lacked the power to enforce taxation or the drafting of soldiers. There was no real Executive, and while the Articles were entirely republican with each state having one vote, the Articles failed to create an effective financial system — the dollars issued under the Articles would soon be ridiculed as “not worth a Continental” and often were frustrated by the need to take unanimous action. “Paradoxically,” Amar would observe, “the very weakness of the Articles was their ultimate strength.” Or as he put it elsewhere in his text: “The Constitution of 1787 was a direct, logical and proportionate response to the basic failures of the Articles. Period.”

From George Washington’s point of view, there was one issue and one issue alone, that towered above all others in the adoption of a new Constitution. The United States had to be strong enough to survive. Great Britain had the strongest navy and military in the world and a population three times the size of the United States, and France had twice the population of Great Britain. Spain amounted to a third European threat. Britain’s banking system was the engine that could fund wide-ranging war efforts in Europe or North America. After the Revolutionary War, the United States had no standing army, no navy, no effective banking system. For Washington, the purpose of the Constitution was to create a United States capable of fielding an army, equipping a navy, and borrowing money from abroad. We began as a financially bankrupt nation. American veterans and American creditors had not been paid. The role of Hamilton as Washington’s Secretary of Treasury, bitterly resented by Jefferson and Madison, was decisive in consolidating an effective national government. Without assumption of state debt, a national bank, and a national currency, it is uncertain whether the fledging republic would have outlasted Washington.

In Amar’s analysis, Washington, the silent chair of the Constitutional Convention, was the Constitution’s most influential drafter. Article II of the Constitution provided for a strong Executive with an independent electoral base who also was commander in chief of the Armed forces. The president compared to state executives had a four-year term and initially unlimited re-electability, the ability to nominate his administration leaders and, after action in 1789, to remove them without seeking congressional consent, as well as powerful veto and pardon powers. Congress augmented presidential power with the power to tax, create a military, and with a few exceptions would legislate by majority rule. Foreign trade, potentially a mechanism by which foreign powers could divide the United States, would be regulated at the national level. State powers would be limited by the Supremacy Clause, which made national law supreme when state law was in conflict.

While much recent scholarship has focused on other aspects of the Constitutional Convention, such as how power would be allocated among the states, whether the Senate would be directly elected or elected by legislatures, how the veto power would work, Washington, in Amar’s colorful phrase, did not sweat these details. Amar writes: “The Constitution that emerged from Philadelphia gave him what he wanted and needed for himself and for his country. […] The Constitution of 1787 was emphatically Washington’s Constitution, not Madison’s.” In Amar’s view, Madison’s celebrated Federalist No. 10 on how to avoid faction and celebrating the separation of powers was virtually irrelevant in the ratification process.

Hamilton’s Federalist No. 8, with its Washingtonian emphasis on common defense and collective action, was the far more important essay.

Washington championed the Constitution, as he privately wrote during the Virginia Ratification Convention: “There is no alternative between the adoption of [the proposed Constitution] and anarchy.” To preserve the union, Washington committed use of overwhelming federal troops to repress the Whiskey Rebellion in 1794. For Washington, this was critical, because the whiskey taxes had been enacted through democratic process, not imposed like the Stamp Taxes of the 1760s. But far more importantly in Amar’s view, Washington intended to send a signal to Great Britain: “America is strong and united. We can raise massive force in the backcountry if we ever need to.”

To create a United States with all 13 states, Washington decisively endorsed a key criticism of the Anti-Federalists and supported a Bill of Rights in his Inaugural Address, overruling the Federalist Papers, which had argued that a federal government with limited powers did not also need a Bill of Rights. Washington did so, Amar recounts, to woo Rhode Island and North Carolina into the United States, which had begun with 11 states.

Washington’s urgent quest for unity was repeatedly challenged, most painfully by slavery, which Amar calls the “second existential threat” to American constitutionalism. “Human bondage, if not placed on a path of ultimate extinction, threatened to destroy the soul of the American republic.” To create a nation, the Constitution included the notorious Three-Fifths compromise by which slaves would count for three-fifths of free persons in the census that determined apportionment of seats in the House of Representatives and votes in the Electoral College. To create a union including states such as South Carolina and other slave-importing states would have been impossible without this type of compromise. In Amar’s analysis, slavery was morally wrong and potentially could have been addressed either by an extinction date in the Constitution itself, phasing out of the Three-Fifths Clause, or by Jefferson working with Congress to prohibit slavery in the Louisiana Territory, which doubled the land mass of the United States, among other opportunities. None of these steps were pursued, and slavery grew in the United States from 1.5 million slaves in 1820 to 2.5 million in 1840, with little change in the percentage of our population that was enslaved. Amar plans to more systematically address slavery, women’s rights, and the rights of Native in subsequent volumes of his potential trilogy.

Amar’s distinctive contribution in this book is to recognize how corrosive the Three-Fifths compromise proved to be. Had only free persons been counted in the census that determined votes in the Electoral College, Adams would have defeated Jefferson in the 1800 election. The 12th Amendment, designed to cure the possibility of a repeat of the debacle of the 1796 election, in Amar’s words, spawned a more “undeniably slavocratic presidential-election system than the one that America ratified in the late 1780s” when combined with the counting of Three-Fifths votes.

Other challenges to national unity began during Washington’s presidency. Jefferson subsidized a rival press critical of the first president’s administration, and he supported during Adams’s terms the Virginia and Kentucky resolutions justifying a state nullifying a national law — such as the Alien and Sedition Acts — when the state considered the act unauthorized under the Constitution. Jefferson, in this case allied with Madison, was right about the unconstitutionality of the Sedition Act, but wrong about the remedy. If a state can nullify a national law, there is no United States. We would have returned to the dysfunction of the Articles of Confederation. Nullification became a battle cry of the Vice President John Calhoun in the late 1820s when he opposed a national tariff act that he believed unfairly treated his home state of South Carolina. President Andrew Jackson ultimately responded by sending warships into Charleston Harbor. Calhoun was dropped from Jackson’s 1832 ticket. But the idea of nullification had been further popularized and would provide a basis for the South to secede during the Civil War.

Amar’s use of biography and narrative history brings these stories to life. For Amar at his best, context is the key to retelling his account of the American constitutional conversation.

Amar also retells the story of several leading legal cases, such as Marbury v. Madison’s supposed creation of Supreme Court judicial review of the constitutionality of national laws. In Amar’s spirited interpretation, at least two other 1803 Supreme Court decisions were, in their time, of greater legal significance, in particular Stuart v. Laird, in which the Court capitulated to a flagrantly unconstitutional congressional statute. The power of the Supreme Court to declare laws unconstitutional was old hat by 1803, not only recognized in the Federalist Papers but also in the earlier Hayburn’s Case and Hylton v. United States.

Amar aptly describes Chief Justice John Marshall’s political shrewdness in allowing President Jefferson to reject a “Midnight Judge” while fortifying the power of the Court and avoiding a wholesale assault by Jefferson on the Supreme Court. Marshall, in Amar’s view, was “the wily Odysseus [who transformed] a trap into a triumph.”

In one instance, Amar’s contextualism fails him. Amar’s discussion of President Jackson’s 1832 veto of the Act to Renew the Charter of the Second Bank of the United States is narrow and legalistic. Amar writes: “In sound Jeffersonian fashion […] Jackson […] offered a classic defense of constitutional departmentalism that each of the Constitution’s three main branches […] may properly determine constitutional law for itself in certain situations.”

Unlike his erudite discussion of Washington’s geostrategic approach to the Constitution, Amar misses what is actually going on. Jackson also removed all United States government deposits from the Second Bank and deposited them in state banks, paving the way for a state bank mania during a period of “free banking” that was responsible for dramatic increases in state issuances of paper money simultaneous with Jackson’s insistence that only gold or silver could pay for federal land sales. Subsequently, there were substantial periods of hyperinflation beginning in 1835–’37, with bank panics occurring in 1857, 1873, 1884, 1893, 1899, 1907, and 1929–’33. The “ghost of Jackson” with its emphasis on states’ rights led to a century of financial regulatory dysfunction. No country ever adopted as compromised a Central Bank as the original Federal Reserve System in 1913.

Amar’s aspiration in The Words That Made Us is to join such earlier classic works as George Bancroft’s History of the Formation of the Constitution of the United States of America (1882) and Gordon Wood’s The Creation of the American Republic, 1776–1787 (1969). With this first volume, Amar is well on his way.

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Joel Seligman is president emeritus and university professor, The University of Rochester, and dean emeritus and professor, Washington University School of Law. He is most recently the author of Misalignment: The New Financial Order and the Failure of Financial Regulation (2020).