Reviewed by Scott Turow
Sunday, September 25, 2005
By Akhil Reed Amar
Random House. 657 pp. $29.95
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. ·
Scott Turow is the author of eight books, including "Presumed Innocent," "One L" and "Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty." His latest novel, "Ordinary Heroes," will be published in November.