How Democratic Is the Constitution

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 …

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Letters

Righteous Anger’ May 11, 2006