Professors, Author Akhil Amar CritiqueAmerica's Constitution

April 3, 2006

Akhil AmarThe Constitution was far more democratic, slavocratic, geostrategically motivated and unfinished at its inception than contemporary wisdom often suggests, Yale Law School Professor Akhil Amar explained during a panel discussion of his most recent book, America's Constitution: A Biography, on March 29.

Amar answered questions and critiques posed by U.Va. law professors John Harrison and Risa Goluboff, whose comments opened the program.

Harrison praised Amar's book as a "fascinating" story about the Constitution.

"It is not just a collection of interesting facts," he said. "It is a story with a theme, and it's a basically upbeat theme as told from the standpoint of 2006."

Harrison postulated that Amar's present-day viewpoint explains the book's focus on various types of equality. But, Harrison suggested, that same perspective may have colored Amar's thesis — that the Constitution's development has shown a continued progression toward more inclusive democracy. He questioned Amar's treatment of economic and political equality, in which Amar proposes that the ratification of the 16th Amendment placed a tax on wealth that furthered the tradition of leveling the playing field between rich and poor.

John Harrison
John Harrison

"One of the things I know about the income tax is it has, and excuse me for a pun, a basic concept known as basis," Harrison said. "Basis is fundamental to the income tax."

If a person buys something for $10,000 and sells it for $20,000, he has an income of $10,000, rather than $20,000. He has a basis in the asset of $10,000.

"And the reason there is such a thing as basis is so that the income tax will be a tax on income and not a tax on wealth," Harrison said.

Harrison also challenged Amar's claim that decreased property qualifications for political participation and the introduction of minimum ages for holding public office reveal progress toward a more inclusive democracy. Harrison discounted the importance of such rules in light of the dominance of mechanisms of indirect selection in the new constitutional structure, which favored well-known, and possibly wealthy, individuals.

Harrison even speculated that the seemingly democratic changes analyzed by Amar may have been introduced as "a decoy" to distract people from the more powerful, less democratic structures in the Constitution.

Risa Goluboff
Risa Goluboff

According to Goluboff, Amar's focus on the Constitution's text allows the analysis of otherwise obscure historical and textual connections. For example, the 13th Amendment, which abolished slavery, looks even more radical when compared to earlier proposals by Abraham Lincoln to emancipate slaves gradually and to compensate slave owners.

"The idea of looking not only at what's in the Constitution and how it gets interpreted, but how it gets created and how it compares to the historical context around it really renders a rich reading of our history," she said.

She also lauded Amar's analysis of the way in which the text itself is historically situated, with amendments appended to the text with their dates included in brackets, rather than being integrated into the original document.

"You can actually see and trace changes in the document over time, and this form invites the reader to contemplate why a particular change occurred at a particular time," she said.

Despite her acclaim, Goluboff was critical of missed opportunities for drawing more deeply on legal and historical scholarship.

"I wonder if it's really possible to tell a comprehensive history of the document without looking somewhat to judicial interpretation," she said. "And in particular I'm thinking about the ellipses in the document, the silences, the absences."

For example, Goluboff pointed to the gap in new amendments between 1933 and 1951.

She also wished the book had "a deeper and broader mining of legal and historical scholarship on lay constitutional consciousness" that focused on the interpretation, challenges, and protests of the people themselves. She focused this suggestion on Amar's limited treatment of the interaction between the civil rights movement and the Constitution's interpretation.

Finally, Goluboff noted that Amar's focus on the actual document, with only limited inclusion of historical and judicial developments, causes his story to follow a continually progressive path, in contrast to the historical reality of fluctuating developments.

Amar incorporated responses to Harrison's and Goluboff's assessments into his commentary, which he organized into four observations: the Constitution was more democratic, slavocratic, oriented toward national security, and unfinished at its inception than many people believe and are taught today.

Amar first challenged the assertion by some scholars that the Constitution was written for and supported by the wealthiest people in the nation by noting that the document's opponents also were elite.

"It doesn't say 'We the propertied,'" Amar said of the Constitution's opening. "It says, 'We the people,' and that's not just a set of words."

Unlike any other constitution in world history prior to the American Revolution, the U.S. Constitution was put to a vote, which Amar said he considers "gutsy." Thus, the United States was the first democracy to enact a constitution democratically. And, judging the document by the standards of its time — as Amar said historians like himself should do — it "is remarkably democratic." It allowed more people to vote and held lower property qualifications for political participation "than the day before."

Aspects of the Constitution that seem less democratic, such as the indirectly elected Senate and the somewhat-small Congress, were not newly limiting factors, but rather were continued from the Articles of Confederation. So the changes brought about by the text showed progress toward a more inclusive democracy, and this progress continued after ratification. Amar conceded that the progressive framework he employs does not explain the entirety of our constitutional experience, but clarified that his book's focus is the written constitution.

Amar next addressed the slavocratic nature of the Constitution. The founders chose to institute the Electoral College "because if you had a direct vote for the presidency, the South would always lose because it doesn't let its people [slaves] vote." This explanation contrasts with the notion that the creation of the Electoral College was rooted in a distrust of democracy. According to Amar, James Madison realized the way to convince Southern states to ratify the Constitution was to include a provision that gave them partial credit for slaves. By counting every five slaves as three people in calculating state representation on national bodies such as the House of Representatives and the Electoral College, the South was guaranteed a stronghold of power on the presidency and consequently also the judiciary.

"So for 32 of the first 36 years, you have a slaveholding Virginian in the presidency, and that's by design largely," he said, discounting the idea that the Electoral College was designed to secure the rights of small states. "In all of American history, there have only been three small-state presidents. So if it's about protecting small states, boy they weren't very good political scientists, and I think they were pretty good political scientists."

Because of the slavocratic structure, the system became increasingly pro-slavery until the Civil War.

"And that's why you get an abolitionist 13th Amendment — not because the system actually worked and gradually solved this problem, but because it broke," he said.

Amar also suggested the Constitution was more about national security than many contemporary scholars realize. He said most people have been taught that the federalists supported a continental democracy to protect minority rights and because heterogeneity is better for democracy than homogeneity, as suggested in Federalist No. 10. In reality, conventional political science held that democracy could not work over such a broad and diverse expanse.

"If you had a really good argument, would you wait until your tenth essay to make it?" Amar asked. "You lead with good arguments, and the federalists do lead with different sets of arguments."

These more convincing arguments involved national security. The federalists reasoned that without a continental union, the states would fight amongst themselves and remain at risk of foreign invasion.

"We'll be just like the continent of Europe, where no one's free," he explained. "Or you can go for what's behind door number three, which is a continental union, a more perfect union, modeled on the union of Scotland and England."

Amar said the federalists evaluated other nations and determined that the Swiss and British were "tolerably free." The Swiss were free because they were protected by the Alps ("It's hard to charge up a hill," he said). The British, after the union of England and Scotland, were protected by the English Channel, and their new reliance on a navy rather than an army was less threatening to domestic liberty.

"Eliminate land borders, in effect, [and] we'll have an English Channel times 50 called the Atlantic Ocean," he said.

Finally, Amar said the Constitution was much more unfinished upon its initial ratification than many people acknowledge. Historians today focus too much on the framing, he added.

"So much of what we celebrate is not from the founding but later acts of popular sovereignty," he said. "The most important part of the Constitution is that vast white space after the last amendment. It's about what your generation could add to the document."

Amar said he plans to write another book where America's Constitution ends. It will cover the unwritten Constitution, which includes "between the lines and beyond the text" and the amendments still to be written.

"What, if anything, will you add to the Constitution?" he concluded.

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