The Words That Made Us: America’s Constitutional Conversation—1760-1840 By Akhil Amar • Basic Books • 2021 • 832 pages • $40
Ben Franklin famously told a questioner as he left Philadelphia’s Pennsylvania Statehouse when the Constitution’s drafters had completed their work, “It’s a republic—if you can keep it.” Two centuries later, doubt exists whether Americans can keep the Constitution, in the form in which it has been interpreted for more than three quarters of a century—as a platform for liberal, affirmative government. Liberals now face what President Ronald Reagan’s solicitor general, Charles Fried, recently labeled a “reactionary, not conservative” Supreme Court majority “poised to take a constitutional wrecking ball to generations of Supreme Court doctrine.” Liberals urgently need to figure out why a longstanding and popular constitutional regime has fallen so far so fast, and what course corrections could regain traction. An instructive place to start would be a mammoth new history of the founding era, authored by Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale. On its merits, his book, entitled The Words That Made Us: America’s Constitutional Conversation – 1760-1840, has received acclaim across the ideological spectrum, as innovative and exhaustively researched scholarship. My focus here, however, is its contemporary relevance—specifically, the bearing of Amar’s account on today’s epochal war over the twenty-first century application of the charter produced by the founders’ struggles he recounts.
The table of contents, standing alone, could make the book appear an uninvitingly conventional history, arranged chronologically, in three blandly described parts—“Revolution” (1760-76),“Constitution” (1777-89), and “Consolidation” (1789-1840). To many, it could also appear an unnecessarily long read, since the third part, upwards of 400 pages, covers 50 years that have not typically been linked, in American history books or courses, as integrated with the “founding” era described in the first two. Potential readers should not be put off by such first appearances. As reviewers have noted, Amar’s chronicle is, throughout, a “highly readable” page-turner, propelled by compelling, often surprising, stories, of the personal, political, and legal adventures and misadventures of the era’s protagonists, demystifying larger-than-life household names. Further, as Amar proclaims in his “Preface,” his account is unique in fusing historical and legal analysis, the first such blended narrative of the founding, framing, and (appropriately linked) early implementation of the Constitution. As he notes, historians have chronically missed the centrality of legal issues and arguments to Americans’ turn toward revolution and an “audaciously” democratic (for its time) constitutional order. Lawyers, on the other hand, he observes, are bad historians, prone to cherry-pick the historical record to bolster their arguments. To be sure, Amar’s narrative reinforces his own arguments, historical and legal. But his contentions—which mainly tilt liberal—are persuasive enough to have impelled a conservative reviewer, Northwestern law professor John McGinnis, to appraise the work “a fresh look [and] the best book on the subject in many years.”
From his first pages, Amar deploys his legal-historical perspective. Until now, the standard start date for the founding era has been 1763, marking the British-American victory in what Americans call the French and Indian War. But Amar finds the first spark of revolution two years earlier, in an arcane 1761 lawsuit. The case challenged—as a violation of England’s (unwritten) constitution—a 1662 English statute that empowered the royal governor to authorize colonial police to search homes or workplaces, without a warrant, and seize any suspected smuggled contraband. At first, the court postponed a final decision, partly in response to the hubbub created by an anonymous London magazine article, re-published in a Boston newspaper, the Evening-Post, and widely described and discussed in Massachusetts and other colonies. Ultimately, though, the court upheld the statute. But word of the case continued to spread, provoking outrage, stoked by the firebrand lawyer-politician who brought and argued it. John Adams, who scribbled notes as the challenging lawyer’s 26-year-old junior associate, later called the lawsuit the “seed” that grew into revolution 15 years later. Amar casts the episode as “an early example of the emerging conversational model featuring a democratic cast of characters: an anonymous essayist, private printers, ambitious activists, [and] commonplace . . . newsprints and letters.”
For our contemporary purposes, the book offers three main takeaways. The first is this: Amar’s painstaking rewrite of the roll-out of the Constitution flatly refutes the current reactionary legal right’s bedrock premise—that the “original meaning” of the Constitution is incompatible with, and hence dictates the judicial dismantling of, the “administrative state” enacted or proposed by twentieth and twenty-first century progressive reforms—from Progressive Era reforms and FDR’s New Deal through Joe Biden’s ambitious economic, health, and climate agenda.
Earlier Amar writings, as well as the works of others, notably his Yale colleague Jack Balkin, have powerfully argued that the original Constitution conferred sweeping powers on the federal government, broad and flexible enough to readily authorize the modern “administrative state.” Twenty-first century conservatives and libertarians dispute this. Their argument draws on a historical narrative accepted, until now, on the left as well as the right—that the principal architect of the Constitution was James Madison. Initially, Madison backed a powerful federal government. But after ratification, following his patron, Thomas Jefferson, Madison flipped, embracing narrow interpretations that would have axed the eighteenth and early nineteenth century national banks, and would call into question modern Progressive Era, New Deal, Great Society, and kindred federal programs. Contemporary new right advocates highlight this “small government” Madisonian persona.
Amar labels this “standard approach” understandable, in light of Madison’s frequent appearance as a speaker in written accounts of the 1787 Philadelphia Convention, including his famous notes on the convention. Understandable, but dead wrong. The focus on Madison, Amar writes, “pays far too little attention to the man who almost never spoke, because he did not need to speak, but who was far more important than any who did speak. George Washington presided, literally and figuratively. He got what he wanted—a robust central government able to cure the union’s problems . . . The Constitution of 1787 was emphatically Washington’s Constitution, not Madison’s.”
What Washington “cared passionately about,” Amar writes , was a “blueprint” for “fixing” the new entity’s “geostrategic problem”—specifically, “a Constitution that would enable Washington personally, and all who would afterward stand in his shoes, to stymie the British again, if necessary, and to do so with or without the French. (Or, if necessary, to stymie the French, with or without the British.) The Constitution that emerged from Philadelphia gave him what he wanted and needed for himself and for his country.”
Critically, Washington’s focus on geostrategic security not only required a militarily robust government, it also required eliminating likely incubators of balkanizing interstate discord that would breed ingrained hostility, civil war, or other vulnerability to foreign divide-and-conquer manipulation. In his succinct letter submitting the Philadelphia Convention’s product to the Confederation Congress (“reprinted everywhere,” Amar stresses, “alongside the proposed constitution itself”), Washington emphasized not only the proposed government’s exclusive international military and diplomatic authorities, but also its vast domestic authority to tax and spend “for the general welfare” and its power for “regulating commerce”—all to effectuate a “consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.”
As recently detailed by Robert Litan and myself, Washington’s vision here squarely fits the constitutional regime established by the Supreme Court in the late 1930s and kept in place since then. Though the new reactionary challengers to that regime claim the mantle of the “original” Constitution and its Framers, their real beef is with those venerated Framers themselves—above all, the father of the country, and, Amar persuasively argues, of the Constitution too.
For contemporary liberals, Amar’s second major contribution lies in his picture of the founding era struggles as a “constitutional conversation.” This “conversation”—the debates over what the law was or should be—engaged large swaths of the populace, not only the lawyers, politicians, and judges who formally drafted and implemented the document.
As Amar details, from the early 1760s on, ordinary Americans were intensely engaged in these debates—first, over the colonies’ entitlements under the English constitution, then, over individual states’ constitutions, and, finally, over a national governing structure. Arguments swirled through media of unprecedented numbers, reach, and impact—by 1790, the new nation had more newspapers per capita than any other—and through pamphleteering, letter exchanges, arguments around tavern tables, postings in public spaces, ingenious cartoons (Benjamin Franklin’s “Join or Die” snake sliced into pieces representing the 13 colonies), and what Amar describes as political performance art (the Boston Tea Party). Amar shows how that broad “conversation” exchanged legally sophisticated arguments, had the ear of politicians, including the Framers and leading judges, and it also drove major official law-shaping and law-interpreting decisions, often trumping the Framers’ contrary personal preferences.
The Constitution was crafted to rivet attention within that public “conversation”—necessarily so, to gain ratification for a powerful new national government in the popularly elected state conventions the Framers prescribed to bypass turf-conscious state legislators. The Framers made the terse document short enough to run verbatim in newspapers and pamphlets and to be read by or to all levels of an attentive society.
The Framers themselves were master publicists. Amar underscores how five of the “Big Six” Framers—Hamilton, Jefferson, Madison, Franklin, and John Adams—were prolific writers of polemics ranging from the Federalist Papers to the equivalent of modern op-eds and blog posts. Though George Washington, the lead Framer, authored few public writings, he was always laser-focused on sparking media coverage to maintain his public profile and advance his agendas. Chief Justice John Marshall, authoritative interpreter and a major founding figure himself, peppered his landmark opinions with headline-friendly sound bites and even penned pseudonymous op-eds.
Amar’s “constitutional conversation” frame fits other momentous American struggles over the scope and purposes of government authority. No less than in the founding era, the contemporary war over the Constitution is driven by such a “conversation”—what we call “public opinion,” or “media,” or “politics,” not simply lawyers’ machinations or judges’ deliberations. But today’s conversation has been largely one-sided. The right has been far savvier than liberals at steering that public debate to shape legal and political outcomes. As noted a decade ago in this journal by the late Doug Kendall, founder of the Constitutional Accountability Center, and Jim Ryan, then a University of Virginia law professor and now that university’s president, the “conservative account of constitutional interpretation has dominated the public discourse for the past 40 years,” and, as a result, conservatives are “slowly but surely uniting a broad segment of the American public behind a mostly fictitious account of our nation’s Founders as a group of gun-toting, property-loving, and tax-hating defenders of big corporations and proponents of small government.”
Outside a small cadre of academics and pundits, liberals and Democrats failed for decades to notice that the right’s “small government” repetitious falsification of the Constitution’s “original meaning,” left unanswered, had put into play the legitimacy—and, hence, the survivability—of the post-New Deal constitutional regime.
This inattention persisted even after insurgent 2016 Republican presidential nominee Donald Trump spotlighted his pledge to shift the federal judiciary radically rightward, and then, as President, made that commitment an unprecedented top political priority. Nonetheless, the numerous contenders for the 2020 Democratic presidential nomination, in their 13 debates stretching over 10 months, mentioned the Supreme Court or federal judicial appointments barely a handful of times. Biden’s general election campaign maintained that silence, presumably calculating that broaching the issue would more likely scare off anti-Trump Republican voters rather than turn out more Democrats. The Biden campaign did target Republican states’ then-pending lawsuit to kill Obamacare. But their spin was to tie the case to Trump, to cast his re-election as a health-policy threat, not to spotlight a broad, radical, and constitutionally baseless threat to essential pocketbook, health, and environmental safeguards.
As a third lesson for contemporary constitutional warriors, Amar’s account illumines strategies essential to prevail in such “constitutional conversations.” Most fundamentally, partisans must effectively message their legal case in academic, media, and political arenas, as well as the courts.
In effect, Amar’s “constitutional conversation” frame builds on Alexis de Tocqueville’s famous observation that there is hardly any political question in the United States that sooner or later does not turn into a judicial question. “[D]aily polemics borrow ideas and language from the judicial system . . . [T]he habits and the turn of ideas that belong to jurists pass into the handling of public affairs. . . . Judicial language becomes, in a way, the common language; so the spirit of the jurist . . . infiltrates all of society. . . .”
Contemporary conservatives and Republicans have channeled this Tocqueville-Amar recognition of Americans’ preoccupation with law and legal justifications far better than the left. Chronically, Democrats and liberals assume that, especially in political fora, the target audience—ordinary viewers and voters—care only about the real-world stakes of law-related clashes. They disdain messaging to show why they, and not their opponents, are right about the law, as well as about real-world results. In contrast, Republicans and conservatives come up with catchy lines to mass-market their legal claims. When Democrats and liberals offer no response, conservatives win by default.
A case in point is the 2009-12 near-death litigation odyssey of the Affordable Care Act. At first, ACA opponents were seen to have no chance in court. The Supreme Court case law was foursquare against them. But the challengers’ aim was to change the law. They laid the groundwork in the media, with conservative politicians, and, ultimately, they reached conservative judges. Their critical breakthrough was a one-liner floated in op-eds in The Wall Street Journal and CNS News (née Conservative News Service): “If the feds can make you buy insurance, the feds can make you eat broccoli.” Though widely lampooned, this sound bite cogently packaged ACA opponents’ core legal argument—that the Obama Administration’s interpretation meant that there was “no limiting principle” to the constitutional reach of federal power. The broccoli line was repeated in oral arguments and opinions, by judges hostile to the ACA, including Supreme Court Justice Antonin Scalia.
During this litigation, I worked with ACA proponents in and out of the Obama Administration to build public support for upholding the law. Around those conference tables, advocates consistently spurned suggestions to rebut ACA opponents’ legal messaging. The result: Two months before the oral argument, a Gallup poll reported that 54 percent of respondents who supported the ACA thought it was unconstitutional. They had, after all, heard nothing to the contrary. No wonder the four conservative dissenters from Chief Justice John Roberts’s decision upholding the individual mandate felt politically free to demand wholesale invalidation of the law.
On a more general level, conservatives’ asserted commitment to “originalism” and “textualism” serves the same function as the broccoli soundbite: Endlessly repeated but unanswered, those buzz words attest to the bona fides of conservatives’ claim that they scrupulously follow the law. To pierce that balloon, liberals need not get into the weeds of refuting conservative “isms” or come up with some “isms” of their own. They do need to reiterate, early and often, that whenever fidelity to text and original meaning proves inconvenient, these self-styled “constitutionalists” on the right shove the Framers and the law aside. Such transgressions should be spotlighted, not merely as hypocritical, but as unlawful, unmasking judicial conservatives’ real (political) agendas.
To create effective constitutional and legal messaging approaches, advocates and politicians could borrow templates from President Obama’s second inaugural address. To start, he skewered conservatives’ canard that the founders’ Constitution mandated “small government,” delegitimizing twentieth and twenty-first century liberal reforms. “The patriots of 1776,” he mocked, “did not fight to replace the tyranny of a king with the privileges of a few.” Then he framed his liberal policy agenda as necessary to maintain “fidelity to our founding principles,” under changed circumstances—“to bridge the meaning of those words with [new] realities.” Further, Obama added, government action is often necessary to give real-life meaning to constitutional guarantees: “While these truths may be self-evident, they’ve never been self-executing.” [P]reserving our individual freedoms . . . ultimately requires collective action”—laws to “ensure competition and fair play,” “to train our workers and equip our children for the future,” and to “care for the vulnerable, and protect people from life’s worst hazards and misfortune.”
Unfortunately, if predictably, while Obama’s constitutionalist tack provoked ire from conservative partisans Senator Chuck Grassley and then-Representative Paul Ryan, it was ignored on the left. Liberal politicians and advocates have never recycled Obama’s constitutional messaging lines, let alone come up with new ones. They should start now, and show that it is their landmark enactments and proposals that truly honor “the words that made us.”