“AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America.” So began a particularly crucial development in America’s early constitutional conversation: a series of newspaper essays that we now know as The Federalist Papers. Hamilton’s (or rather, Publius’) opening salvo in support of the Constitution was an invitation to civic deliberation—a public conversation on the forms and purposes of law, politics, and constitutionalism.
In his wonderful new tome, The Words That Made Us: America’s Constitutional Conversation, 1760-1840, Yale law professor Akhil Reed Amar reproduces and analyzes that early conversation. Amar argues that America became America—and Americans became Americans—through reading, writing, and speaking with one another. “Uniquely in the history of the world, Americans in the late eighteenth century constituted themselves as a people and as a nation in a series of epic and self-conscious acts of democratic self-invention,” Amar writes. Discussions of British liberties turned into debates over natural rights, which turned into dialogues on self-government and conversations about proper state and federal constitutional structures and the maintenance thereof.
The richness of the dialogue that Amar unearths should leave readers both proud of our imperfect yet inspiring constitutional heritage and disappointed in our present-day selves. In terms of seriousness, depth, and creative vigor, our political and constitutional discourse cannot hold a candle to early America’s. Moreover, beset by tribalism, we seem unable or unwilling to engage in the genuine exchange of ideas and back-and-forth debate that marked the most fruitful episodes of America’s early constitutional conversation. With Amar as our guide, we can learn how America’s early conversation emerged and strengthened, and we can begin to reflect on why it has withered.
Attentive readers will be struck by Amar’s decision to begin his narrative in 1760 rather than, say, 1765 (the Stamp Act Congress), 1774 (the First Continental Congress), or 1776 (the signing of the Declaration). Instead, he begins with the announcement of King George II’s death and Paxton’s Case. This Massachusetts Bay case revolved around the legality of writs of assistance, which empowered British customs officers to search dwellings, including private ones, for smuggled goods. In representing a group of aggrieved merchants, writes Amar, the fiery James Otis Jr. challenged these general authorizations to search private homes as “anathema to first principles of British liberty.”
While Otis’ legal arguments were somewhat strained and hyperbolic—after all, officers could face civil liability for undue searches—they mounted a challenge to parliamentary sovereignty. Otis, a lawyer and political activist leading up to the Revolutionary War, had effectively begun chipping away at the bedrock principle of the British constitutional order. He wouldn’t stop there. By 1764, Otis had coined the phrase “no taxation without representation,” and thanks to the Coercive Acts, many colonists had begun questioning all of parliamentary sovereignty—not just its taxation authority—by 1774. They talked and wrote their way to this once unimaginable position, helped along by newspapers and “informal and extralegal” committees of correspondence.
Having talked themselves into revolution, Americans had to talk themselves into being Americans. This took a while—perhaps even longer than Amar claims.
We often condense “the Founding”—the Revolutionary War and the ratification of the Constitution—into a singular moment in time, but key episodes like the signing of the Declaration and the ratification of the Constitution were separated by more than a decade. That intervening decade was bridged by a hefty amount of robust constitutional discussion. By walking through the creation of the Revolutionary-era state constitutions, the failures of the Articles of Confederation, the buildup to the 1787 Philadelphia Convention, and then the push for the Constitution’s ratification, Amar analyzes how Americans worked through core constitutional concepts like popular sovereignty and federalism.
But his attempt to play the dual roles of historian and constitutional scholar runs into trouble here. For example, Amar vigorously and persuasively adopts Chief Justice John Marshall’s line of argumentation that the ratification of the Constitution abolished the robust sovereignty previously enjoyed by states and thus established a veritable nation, albeit a federal one where states retained police powers. He devastatingly picks apart the constitutional arguments of state sovereignty adherents—from Thomas Jefferson in the Kentucky Resolutions, in which Jefferson argued that states could declare acts of Congress unconstitutional, to John C. Calhoun during the Nullification Crisis.
Unfortunately, Amar’s sharp constitutional analysis leads him to overstate the historical case for the Constitution’s nation-making capabilities. Having lambasted Jefferson’s assertion that the states were still “sovereign and independent,” he writes that “If they were, each might well retain a relatively broad right to secede, which no one thought was true in 1788.” As I argued recently in American Purpose, that’s questionable. A great many Americans—from plenty of everyday citizens to Anti-Federalist delegates at the state ratification conventions—were far from ready to renounce state sovereignty in 1788 and beyond. Looking over the 1788 ratification debates in Virginia, for example, the historian Kevin Gutzman concludes that “Virginians understood themselves to be entering into a compact/contract with the other parties: the other states. The states were primary, the federal relationship a convenience.” Amar critiques Jefferson for being “stuck in 1776,” as so many of his fellow national elites had moved on by the late 1780s. But ever the democrat, it’s unclear that Jefferson—who founded a political coalition that proved dominant and drew heavily from the ranks of former Anti-Federalists—was necessarily out of step with most late 18th-century Americans on this question of state sovereignty.
Some of Amar’s other critiques of Jefferson are more biting. Amar rightly castigates Jefferson for evolving from being at least rhetorically anti-slavery in the 1770s to advocating slavery’s spread into the federal territories—and arguing there was a lack of constitutional authority on the part of the federal government to limit that spread—later in life. Thus, Jefferson coupled immorality with constitutional inanity. Jefferson’s worsening on the slavery issue (alongside James Madison’s) stands out as so depressingly unfortunate because it flies in the face of the logic of America’s culture of open discourse. The free political discourse that makes robust constitutional and political conversation possible should induce progress, not immoral back-tracking. As Jefferson himself wrote, in an open environment, “truth … will prevail.” Perhaps not on the individual level.
George Washington, on the other hand, allowed America’s burgeoning discourse on constitutionalism and slavery to influence his own personal behavior in positive ways: Upon his death, he freed his slaves. This checks out, writes Amar, since Washington was both an “outstanding listener” and a ravenous reader of American newspapers. While Amar heaps praise upon Washington and Hamilton for their constitutional interpretation and evolving (in the case of Washington) moral stances on slavery, he knocks Jefferson and Madison down a few pegs time and time again. Sometimes, Amar is too harsh toward our third and fourth presidents, since it was Jefferson and Madison who made the stand against the Adams administration’s destructive, conversation-killing 1798 Sedition Act. Hamilton, for his part, uncharacteristically failed to take up his pen. Thus, Jefferson and Madison stood up for open discourse and constitutional conversation—the very principles that ultimately proved their stances on slavery and its spread legally misguided and morally odious.
These historical quibbles aside, Amar has left us with a great gift: a “coherent national narrative” that does not shy away from the gross moral imperfections and exclusionary nature of America’s early constitutional conversation, while still granting it—and its participants—the immense honor they are due. With this first part of a promised trilogy on America’s constitutional history, he has held up a mirror to ourselves and our present-day constitutional discourse. Our reflection doesn’t look very good. Amar himself recognizes this in the book’s closing pages: “As I write the words of this postscript, in the late summer of 2020, I am frankly worried about the widespread constitutional illiteracy that surrounds me, illiteracy of young and old, left and right.”
I wonder whether part of the problem is that the conversation has grown stale. Of course we must do a better job of discussing, debating, and appreciating the principles of liberty and constitutionalism. But perhaps we have reached a point at which the conversation cries out for renewal. Maybe events need to intervene to give our constitutional conversation new life. To put it bluntly, maybe we need some new stuff to talk about. Discussing new, tangible changes to our constitutional landscape—like state and federal constitutional amendments—could help make concepts like constitutionalism, checks and balances, federalism, and self-government less like civics class flashcards and more like real, relevant aspects of everyday political life.
The stakes of the founding generation’s and their Jacksonian era successors’ constitutional conversations were immense: They forged a new nation, a new form of government, and then greatly improved that government’s democratic pedigree. Perhaps the mob violence of this summer followed by the attack on the Capitol can, together, convince us that the stakes of our constitutional conversations are similarly high. At this juncture, the persistence of our constitutional democracy is by no means a given, so maybe the least we can do is start conversing with one another. I worry that this won’t happen, though, if we don’t begin changing today’s stale terms of debate.
Perhaps this means trying to expand the size of the U.S. House of Representatives. Perhaps this means amending state constitutions to induce more localized self-governance. Who knows, but maybe constitutional amendments that are not nakedly partisan and aim to build on the best elements of the conversation which Amar illuminates in The Words That Made Us could help us heed Hamilton’s call in Federalist No. 1: To join together in conversation and deliberate anew on the purposes and forms of Americans constitutionalism.
Thomas Koenig is a recent graduate of Princeton University. Follow him on Twitter @thomaskoenig98.
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