Book World Live

Akhil Reed Amar, "America's Constitution: A Biography"

"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." -- Everything Is Illuminated (Book World, Sept. 25)

Akhil Reed Amar was online Tuesday, Sept. 27, at 3 p.m. ET to field questions and comments about his book and constitutional law.

Amar is a professor at Yale Law School.

The transcript follows.

Join Book World Live each Tuesday at 3 p.m. ET for a discussion based on a story or review in each Sunday's Book World section.

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Philadelphia, Pa.: I am interested in the meanings of words and how even meanings change over time. For instance, does "interstate commerce" mean only economic transactions that cross state boundaries or any cross-border transactions that lead to changes in behavior? Also, scholars are long debated whether the intent of the Second Amendment on what arms were then and what we consider arms to be today differs. Do you have any particular insights on how different generations view the same words?

Akhil Reed Amar: Yes, both of these topics are addressed in some detail in my book.

As for "commerce": I provide evidence--based on the Constitution's text, its structure, and its early implementation history--that "commerce" can be sensibly be read to encompass various noneconomic transactions. The key constitutional constraint, on my view, is that Congress should only regulate genuinely interstate and international transactions--that is, things that truly spill over state or international lines. But if the matter does involve interstate or international spillovers, Congress should be allowed to regulate it whether or not it is narrowly economic in nature. For example, when pollution molecules or water or migratory animals cross borders, then the feds may indeed properly regulate.

As for the Second Amendment, I try to show how its words meant one thing to the Founders--based on their military experience in the American Revolution--and a rather different thing to the generation that amended the Constitution after the Civil War. That later generation had a very different set of recent experiences in mind, and this different vision was in effect encoded in the Fourteenth Amendment, adopted in 1868, which provided a new gloss on the words of the Second Amendment as originally envisioned in the 1790s.

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Washington, D.C.: What do you think about Gov. Schwarzenegger's suggestion that the Constitution ought to be amended to allow non-native citizens to become President? Was that a reasonably classification based upon birth?

Akhil Reed Amar: Of course it is up to today's Americans to decide whether to amend the Constitution, and it might be presumptuous of me as a mere citizen to try to dictate to others what they should think about a current political question. What I CAN do as an historian and a constitutional scholar is to explain to my fellow citizens why the Constitution was originally drafted to limit the eligibility of naturalized citizens. I do tell this story in my book; and the reasons that applied 200 years ago do not--to me, at least--appear to apply today. I try to show how the framers were worried about the possibility that foreign dynasties might try to come to America and buy their way into political power, and how this anxiety about foreign dynasties and Hanoverian successions played out in the Constitution's rules for presidential eligibility. A few key facts: 1. In general the Constitution's rules for eligibility were much more liberal than English rules circa 1787. 2. Many of the framers themselves were foreign born. 3. Many of America's early leaders--for example, 3 of the first 10 Justices and 4 of the first 6 treasury secretaries--were foreign born. 4. Foreign-born Americans who were already citizens in 1787--like Alexander Hamilton--were in fact eligible to be President at the Founding. So if we Americans today decided to liberalize eligibility even further, in an important sense we would be continuing the liberalizing project of the Founders themselves, even as we modified their specific rules.

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Washington, D.C.: Professor Amar:

Would you care to speak a little about the Electoral College? I know that you are a supporter of direct election (as am I) and I would be interested to hear your take on the College, how it has evolved away from the mechanism the Delegates to the Constitutional Convention thought they were producing, and what it could or should be replaced with (ie a direct election using instant runoff voting.)

Akhil Reed Amar: In the book, I try to show how the original electoral college reflected a variety of compromises, and how one of the biggest compromises involved slavery. In a direct election system, the South would not have gotten to count its slaves (who of course did not vote). By contrast, the electoral college system gave the South partial (three-fifths) credit for their slaves. So the more slaves the South had, the more electoral college seats it won. This perverse rule created a presidency that leaned South. For 32 of the first 36 years, the presidency was occupied by a slave-holding Virginian. (I do note that George Washington arranged to free his slaves upon his death--and deserves our applause for this.) For most of the antebellum period, the presidency was occupied by a Southerner or a pro-slavery Northerner--thanks in large part to the three-fifths clause as incorporated into the electoral college. I further try to show how the election of 1800-01 made the proslavery bias plain to see--without the three-fifths bonus, Northerner Adams would have beaten Southerner Jefferson. Yet the constitutional amendment adopted after the 1800-01 election--the Twelfth Amendment--preserved the proslavery bias of the electoral college. Finally I try to show some interesting links between presidential selection rules and gubernatorial selection rules in the Old South.

Where does all this leave us today? One idea is that we should pick Presidents the way we pick governors. Since we don't use an electoral college within California to pick the California governor, or an electoral college within Texas to pick the Texas governor--and ditto for all the other states--why should we use this system at the national level to pick the national chief executive? As for the details of instant runoff voting versus other models, I would first want to see which systems have worked best in the several states for gubernatorial elections.

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Laurel, Md.: How broadly did the framer's intend the Ninth Amendment (that one that specifies that the mere lack of mention of a right does not imply it doesn't exist) to be applied?

Many arguments over topics like abortion come down to "the Constitution say states can't pass laws against it" vs. "the Constitution says people have rights that aren't specifically mentioned."

Akhil Reed Amar: I discuss the Ninth Amendment in some detail. Here is one part of that discussion that might interest you:

It remains for us to ponder the possible existence of other Ninth Amendment "rights" of "the people," rights that might not be inferable from the Constitution's text and structure but that nevertheless might deserve constitutional status.* Although no major Supreme Court case has ever been decided solely on the basis of the Ninth Amendment, some modern judges and scholars have suggested that this Amendment should be read to invite judges to mint an expansive set of new rights as the judiciary deems fit. However, the very language of the Amendment itself would suggest that judges (and other constitutional interpreters, for that matter) who range beyond the Constitution's text and structure must give "the people" their due: Any rights that are to be enforced in the name of the Ninth Amendment must genuinely be rights of the people.

Rights of "the people" need not involve the collective people as direct rights-holders. The Fourth Amendment, after all, focused on individual persons as core rights' bearers, yet nevertheless involved the people (via civil juries) as implementers and interpreters of the rights at stake. More generally, all the provisions of the Bill of Rights might be said to be rights of the people insofar as these rights emerged from a broadly populist process. Modern judges (and others) seeking to discover and declare unenumerated rights of "the people" should look for rights that the people themselves have truly embraced-in the great mass of state constitutions, perhaps, or in widely celebrated lived traditions, or in broadly inclusive political reform movements. In short, judges seeking guidance on the real rights of "the people" must give due weight to the very sources and sorts of legal populism that helped generate the Bill of Rights itself.

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Washington, D.C.: Aside from my love of history, I will be taking the LSAT soon and I intend to read/study your book to help improve my reading comprehension. Any advice would be welcome.

Akhil Reed Amar: Good luck!

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Ridgefield, Conn.: We know that the Declaration of Independence was drafted by one person with some editing by two others. In the case of the Constitution, Gouverneur Morris claims to have written significant portions of the final draft. Has anyone determined which portions he drafted? Did he draft the clause on Patents and copyrights in the Committee of 11?

Gouverneur Morris stated that he removed all redundant and ambiguous words in the final draft. How successful was he in your opinion?

Comment: Gouverneur Morris was one of the principal draftsmen of official documents in the Continental Congress, it is not surprising that the other delegates gave him the task of drafting significant portions of the final draft of the Constitution.

Akhil Reed Amar: Lots of hands were involved in the early rounds of drafting at Philadelphia, and near the end of the summer, a Committee headed by G. Morris put the various provisions that had been agreed to into a smooth final form. But remember: the only thing that emerged from Philadelphia was a mere proposal. The document became the supreme law of the land only after countless thousands of Americans gave their consent to the document in specially elected ratifying conventions held in the thirteen states over the following months. And in those conventions, lots of further revisions were proposed. Some of these found their way into a later Bill of Rights. And then still later generations of Americans added a great deal to the document--equal rights for all races, woman suffrage, and so on. So in a real sense the true author of the Constitution is not one man but many, many men and women over the centuries--"We, the People of the United States," to borrow a phrase.

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Linthicum, Md: Thanks for your book. I'm looking forward to reading it.

Please help me, though. I wonder how relevant a book like this is, given the fact that 9 people really are the FINAL word on what it says. I have sympathy for FDRs approach to the constitution -- pack the court to get a majority for your view. I can't help but be somewhat cynical.

Akhil Reed Amar: The best way for Americans to begin to reclaim their Constitution for themselves is for ordinary Americans to read it and study it. If lots of Americans do this, then it will be somewhat harder for 9 Justices--or 1 President of 535 Congresspersons, for that matter--to take interpretive liberties with the document.

Of course, it is not easy for a lay person to figure out what the document meant without some background materials giving the reader a sense of the larger historical and political context in which the document was written and later amended--and that is where my book comes in. If you do get a chance to look at the book, please email me after you have finished and let me know what you think! Thanks.

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Suitland, Md.: Professor Amar,

I placed an order for America's Constitution this morning via Amazon. As a history buff, I believe your book will be a great new addition to my collection.

In your opinion, does the Constitution guarantee the right to an abortion? If so, where in the document would one derive this conclusion?

Akhil Reed Amar: Thanks for ordering the book. I hope you like it. I don't discuss abortion at all in the book, but I do feature lots of materials on the rise of women's rights over the centuries. I focus on questions such as these: To what extent was the Fourteenth Amendment, adopted in 1868, written to protect women as well as blacks, from discrimination? How was the Constitution transformed by the woman suffrage movement?

I mention the women's rights material in response to your question because some thoughtful scholars have emphasized women's equality as the best basis for the abortion right. But, to repeat, I do not talk about this issue in this book. If you want to see some interesting arguments both pro and con in the abortion debate, you might be interested in a recent book edited by Jack M. Balkin entitled, "What Roe v Wade Should Have Said."

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Wilmington, N.C.: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". I read that as a requirement of complete indifference. Am I correct? How does "make no law" extend to all government actions?

Akhil Reed Amar: The "make no law" language of the First Amendment can indeed be read as a requirement of complete indifference of a certain sort: Congress should butt out and let the states decide issues of religious policy. But later on, an amendment in the 1860s (the 14th Amendment, to be precise) used similar words-- "no," "make," "laws"--to affirm a rather more sweeping idea that no government, state or federal, should interfere with various "privileges" of citizens, including the privilege of the free exercise of religion. The rules about religion today are thus a complex blend of Founding and Reconstruction ideas.

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Tampa, Fla.: I have two questions: First, could you address whether freedom OF religion included freedom FROM religion? I.e., does the First Amendment protect atheists and agnostics? Or does it merely prohibit the government from favoring one sect over another, while allowing it to favor believers over non-believers? This seems part of the issue of whether states may require children to pledge allegiance to one nation "under God" as opposed to one nation, period. I'm reading "Freethinkers: A History of American Secularism" by Susan Jacoby, and she argues persuasively that the First Amendment does indeed embody freedom from religion.

This goes to the issue of whether we are a secular Republic, or an officially Christian nation where even the Constitution is subservient religious dogma. My local country commission says, and acts on, the later, to the point of denying atheists the right to address the commission.

As an aside, I understand the author of the Pledge of Allegiance, a Baptist minister, deliberately excluded "God" from his Pledge.

Akhil Reed Amar: As I mentioned in answer to a previous question, the Constitutional rules about religion today derive not just from the First Amendment but also from the Fourteenth Amendment, adopted many years later. Still other passages in the Constitution also cast interesting light. The English King had to be a Protestant, but there is no religious requirement for America's President in Article II. Article VI in fact prohibits religious tests for all federal officials. Interestingly, two of the four Presidents on Mount Rushmore--Jefferson and Lincoln--were not members of formal Churches when elected.

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Alexandria, Va.: What amendment would you most like to see made to the constitution?

My preference is "No person shall be taxed to pay for the debts of the United State Government incurred prior to his or her reaching voting age by a capitation or other direct tax, or by any tax whatsoever on income or property."

Akhil Reed Amar: I suppose that as a child of immigrants I am partial to an amendment that might make even naturalized citizens eligible to the Presidency--see my previous answer on this topic. Speaking for myself, I would have liked to see ERA ratified. But in the end it is up to all Americans, and not a few law professors, to decide what this generation should or should not add to the document we have inherited from our founding (and amending) fathers (and mothers).

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Chicago, Ill.: What do you consider the five best new works of fiction in the last year? I try to keep up, but it seems that every other book has been a "New York Times Bestseller" or caries some other ringing endorsement. Can you help me cut through the chaff and get to the wheat?

Akhil Reed Amar: I'm afraid I haven't kept up with all the latest fiction. But I can definitely recommend one very thoughtful fiction book about law and lawyers. It's entitled "In the Shadow of the Law" and its author is Kermit Roosevelt. Full disclosure: I know the author (who was one of my star students at Yale). But I have read the book myself, and I loved it, and would not recommend it to you otherwise. And although I haven't read his most recent book, I confess that I am a Scott Turow fan--and have been long before he gave me a generous review in the Post.

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Chicago, Ill.: Which recent biographies or autobiographies would you recommend both for their literary quality and for their accurate and detailed depiction of a notable person's life--an international view please.

Akhil Reed Amar: This may or may not strictly qualify as biography, but I adore Taylor Branch's magnificent account of Dr. Martin Luther King's life--beginning with volume 1, Parting the Waters. I also felt I learned a great deal from David McCullough's Truman book and Steven Ambrose's biography of Eisenhower. Robert Dallek's An Unfinished Life: John F. Kennedy was also quite illuminating, especially on Kennedy's medical issues. Ranging further abroad, I also have learned a great deal from Martin Gilbert, who has written thoughtfully about Churchill, Israel, and WWII.

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Alexandria, Va: Do you have any information on the Constitutional process taken place in Iraq. Is there going to be a final constitution that everyone will vote for. I have heard of complaints that there are several Iraqi constitutions out there. I check the Iraqi site www.almendhar.com and found that the English version had 153 articles and the Iraqi version had 139 articles. Is there a political decision to have each area in Iraqi to vote on a different constitution thinking it is the final one, so it can pass. Then the Iraqis find out later what was really voted on. I noticed that one of the Iraqi constitutions did not mention that 25 percent representation of women in the legislature.

Akhil Reed Amar: I have not followed every twist and turn of the saga of the modern Iraqi Constitution; but I do generally recommend the work of Noah Feldman on this topic, who has written some very thoughtful stuff on Iraq and on Islamic constitutionalism.

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Munich, Germany: What are your thoughts on the Death Penalty in America, in terms as how it was envisioned in the original constitution and how it is perceived now?

Akhil Reed Amar: Perhaps it is worth noting that the Eighth Amendment condemns "cruel and unusual" punishment and that certain punishments that were rather common in America in 1787 are not common today. One might even say that some of these practices are now unusual. I don't discuss this issue in great detail in my book, but you can find my thoughts on the topic if you Google my name and look for a column on findlaw.com about the Eighth Amendment.

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Alexandria, Va.: I look forward to reading your book. Would you care to address a few general questions?

I get the feeling that there are few clauses in the Constitution in force today, save for those about the rules for getting into the game. As far as I can tell as far as game playing goes, we pretty much only play by fouls.

Does this seem true? I am thinking for instance of the way we now interpret the Constitution's authorizing the congress to set up the judiciary as not precluding the President from setting up an alternate judiciary under the powers of commander in chief, or the delegation to congress of authorizing state-sponsored terrorism (via letters of marque and reprisal) as not precluding special forces operations under the powers of commander in chief, etc. etc, and not just the broad reading of the commerce clause or the narrow reading of the right to bear arms, the variable reading of the word "person", the failure to follow the distinction between powers delegated to the government and rights (which only appertain to people, etc. etc.)

If so, does it indicate that the constitution was too ambitious? Would a constitution limited to rules for elections and appointments less likely to become a farce?

Akhil Reed Amar: I think the Constitution was indeed ambitious. And it contains provisions that it has taken quite a long time to live up to; for example, it promised blacks equal voting rights in 1870, but many blacks did not get equal voting rights until almost a century later. As for whether the document was TOO ambitious, let me know what you think after you've had a chance to read the book.

washingtonpost.com: Thank you all for joining us today.

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