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How Democratic Is the Constitution

1.

If it weren’t for the law professors who teach and write constitutional history we wouldn’t have much constitutional history being written or taught in the academy these days. Most universities have long since given up teaching undergraduate courses in American constitutional history, and most of those few remaining professors who do teach it are retiring and not being replaced with constitutional scholars. Although the general public still seems very interested in constitutional matters—as the attention being paid to the Supreme Court appointments suggests—most members of history faculties today prefer popular cultural history to what some dead white males in the past did with the Constitution. Apparently this lack of academic interest in the Constitution seemed dire enough to Congress that it recently demanded that all educational institutions receiving federal funds do something to commemorate Constitution Day on September 17. A congressional mandate is not the best way to get the academy interested in the Constitution.

Fortunately there are all those law professors still writing constitutional history, the two books under review being recent examples. Akhil Reed Amar, a professor at Yale Law School, is one of the busiest and the most knowledgeable of constitutional scholars. Amar wrote an important study, The Bill of Rights: Creation and Reconstruction, in 1998. In it he argued that the original Bill of Rights passed in 1791 was concerned less with protecting individual liberties and minority rights and more with imposing limitations on the federal government, as opposed to state governments. Only with the Fourteenth Amendment, passed during Reconstruction, which among other things limited the states’ ability to deprive their citizens of their rights, did the Bill of Rights take on its modern significance as a protector of individual liberties against the power of the majority; only then was the way prepared for the judicial “incorporation” of some of the first ten amendments into the Constitution as limitations on state legislative majorities. Now Amar has applied some of the same sort of analytic skill to the Constitution itself.

Since America’s Constitution has fewer than eight thousand words, it is, in addition to being the oldest national written constitution in the world, probably the shortest—shorter than our fifty state constitutions and certainly shorter than the proposed constitution for the European Union that was recently defeated by French and Dutch voters. Yet other than perhaps the Bible or the Koran, it is hard to think of any single document—“one of the most important texts in world history,” says Amar—that has been more fully interpreted, analyzed, parsed, and dissected than America’s Constitution. Consequently, over the past two hundred years we have accumulated a huge body of textual exegeses and legal expositions of the Constitution; there is nothing like this accumulative constitutional scholarship anywhere else in the world. And it is clear that as long as the Republic and its Constitution endure, this constitutional interpretation and commentary will never cease.

Amar writes that he hopes readers who join him “on an interpretative journey through the document, from its first words to its last clause,” will gain a better understanding of not only what the Constitution says but how and why it says what it says. By writing what he terms “a biography” of the Constitution, Amar believes that readers will be introduced “both to the legal text (and its consequences) and to the political deeds that gave rise to that text.” Surprisingly, he says, virtually nothing in print attempts to do this. There are thousands of specialized studies on various aspects of the Constitution, but none that tries “to encompass the constitutional system as a whole.” By bringing the disciplines of law, history, and political science to bear on the document, his book is an attempt to do just that.

Amar admits that his is “an opinionated biography of the document” in that he pays special attention to those parts of it that he believes are “particularly significant or generally misunderstood.” But he is often modest and tentative in his opinions, and in his extensive endnotes he offers many other scholars’ contrasting interpretations of the document. The result is an extraordinarily full, rich, and fair-minded interpretation of the text of the Constitution that ought to be read by anyone interested in the document.

Although Amar calls himself “a constitutional textualist,” he is certainly not a textualist in the manner of Justice Antonin Scalia. Justice Scalia believes that the text of the Constitution means what it says, or what he thinks it says, not what its framers intended it to mean, whatever that might be, since there were many framers and many clashing motives. By focusing exclusively on the text Justice Scalia avoids the difficulties of investigating the historical origins of the document. By contrast, Amar is centrally concerned with understanding the text of the Constitution in the context not only of its framers’ intentions but of its subsequent history as well. That he calls his book “a biography” of the Constitution itself suggests a living and growing document, not one with a fixed textual meaning at birth. Still, like nearly all jurists, liberal as well as conservative, he inevitably begins with the text of the Constitution and works outward from it. In fact, he has some interesting things to say about the eighteenth-century meaning of “commerce” that might make Justice Scalia take notice. Today’s Supreme Court has tended to interpret commerce as applicable only to economic transactions. But, says Amar,

commerce” also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.

His historical discussion of the opening words of the Constitution, “We the People…do ordain and establish this Constitution,” sets the tone for much that follows. Amar rightly contends that in 1787 “this was the most democratic deed the world had ever seen.” Amar criticizes those today who miss the democratic character of the Constitution and try to pass the framers off either as rich white elitists or as republican opponents of democracy. Whatever the aristocratic intentions of the founders may have been (some of them, including James Madison, the so-called “father of the Constitution,” were certainly trying to counter what they regarded as democratic excesses in the states), Amar correctly shows that they never doubted that the people were the source of all authority and that sovereignty, or final, supreme lawmaking power, belonged with them. Those who indict the framers for not creating a more democratic and egalitarian constitution—one more like the one we have today—are committing the grossest kind of anachronism. “True,” says Amar, “the act of constitution fell far short of universal suffrage as modern Americans understand the idea, but where had anything close to universal suffrage ever existed prior to 1787?”

Within the setting of its time the Constitution was more democratic than any previous document of the kind; “in fact,” writes Amar, “the Constitution infused some form of democracy into each of its seven main Articles.” Article I prescribed no property qualifications for voting or service in the government and promised that all members of the new House of Representatives would be elected directly by the people. Even senators had no prescribed property qualifications for service, “thereby breaking with the membership practices of every state upper house in America.” Moreover, representation in the House would be adjusted every ten years in accordance with a census. There would be no English rotten boroughs.

Article I also prohibited all titles of nobility, in some respects the most radical break with the Old World. Unlike the monarchies of Europe, declarations of war belonged to the legislature, not the executive, a requirement not followed in practice during the past half-century. Articles II and III provided that the presidency and federal judgeships would be open to men of merit regardless of wealth or lineage. At the same time the Constitution gave common citizens a part to play in government:

Juries of ordinary people would counterbalance professional judges in the judicial branch, as militias of ordinary people would check professional armies in the executive branch.

Article IV guaranteed to each state a “Republican Form of Government”—this at a time when much of the world was made up of monarchies. Article V provided means for the people peacefully to revise and amend their Constitution—something previously unheard of. Article VI banned religious tests for federal officeholders, an extraordinary stipulation in a world that was still dominated by religious hierarchies. And Article VII specified how the new Constitution would be established and ratified by the people. Even the Bill of Rights began and ended with the people, an emphasis, Amar claims, whose full significance has eluded many modern-day interpreters. From the beginning amendments have worked to enlarge, not diminish, the electorate. If this is Whiggish history, he says, make the most of it.

The making of the Constitution itself was “breathtakingly novel.” With great skill Amar shows how the new Constitution differed substantially from the Articles of Confederation, America’s first national constitution. The Articles, which were adopted by the Continental Congress in 1777 but not finally ratified by all the states until 1781, were not an early version of the Constitution of 1787. They did not set up a government at all, but were a multilateral treaty among thirteen independent states, a “league of friendship” that in some ways resembled the present-day European Union. In setting the Articles aside and establishing an entirely new sort of federal government, Americans in 1787 did not have to show that the regime they were changing was tyrannical; all they had to do was demonstrate that it was outdated or imperfect. Americans even marveled at what they were achieving. “The people may change the constitutions whenever and however they please,” declared James Wilson of Pennsylvania, an intellectually important framer who Amar correctly believes has been much neglected.

Wilson was the founder most responsible for deflecting the powerful argument of the opponents of the Constitution that sovereignty—that final, supreme, and indivisible legal authority that William Blackstone said had to exist in every state—would inevitably end up being held by the federal government and create a consolidated system. The inability to divide sovereignty between the Parliament in London and the colonial assemblies had broken apart the British Empire. Now in 1787–1788 the issue of its indivisibility threatened to undermine support for the Constitution. While proponents of the Constitution tried to say that power would be divided between the federal government and the governments of the states, the Constitution’s opponents said that since sovereignty was indivisible it could not be divided. The supremacy clause in the Constitution would therefore inevitably lead to sovereignty being lodged in the national government, with the states eventually being reduced simply to laying out roads and measuring the height of fence posts.

Wilson came to the rescue of the Constitution with a brilliant argument that sovereignty, even final legal sovereignty, would not have to be divided after all; instead of being placed in any of the institutions of the federal or state governments, it would remain always with the people at large. Once grasped, this notion of sovereignty remaining with the people explained all of America’s radically new constitutional institutions and achievements—their federalism that allowed two legislatures to deal with the same matters, their constitution-making, which set them apart from ordinary lawmaking, their constitutional conventions distinguished from legislatures, their processes of popular constitutional ratification, and their conception that all governmental officials, even judges, were merely different agents of the people.

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