June 15th, 2006

Brad @ Burning Man

What Was the US Constitution before It Grew Up?

That I've been having the time of my life playing Auto Assault is only half of the reason I've been too busy, and having too much fun, to do any writing lately. The other half is that I wanted to finish Akhil Reed Amar's America's Constitution: A Biography for many reasons, not least of which to review it here. But I can't hold back any longer. I am 2/3rds of the way done with the main body of the book, on page 285 of 478 (not counting 128 pages of end notes). Even though I'm only up to the beginning of Article VII, I'm going to rave about this book, because there are a lot of you who need to or would want to read this, and you want to get started as soon as possible. I've been working on it for over a month, myself. I know, since when does it take me a month to read 285 pages? Actually, reading 285 pages in a smidgen over a month is an achievement for this book. It's not because it's hard to read; on the contrary, the style couldn't be breezier without doing severe injustice to the topic. It's because at least once every 2 to 4 pages, I have to put the book down and spend anywhere from a couple of hours to a day or more in shock, rethinking things I've been taught all my life, eyes open wide in horror to the light that this book sheds on current news events every couple of pages. It's just that good.

Here in America, we defer to our Constitution in ways that strain the imagination of foreigners, to whom something like it is just another book of laws, just another historical document. It's hard to explain our relationship with this document to anybody who didn't grow up with it. Nonetheless, it is a fact on the ground that Americans are as a people 100% committed to making this 217 year old brief legal document (and the 27 edits that have been painstakingly made to it over that span of time) the ultimate arbiter of what government can and can't do, of how it should or shouldn't do it. Furthermore, for almost as long as I have been alive, there has been a vast and powerful consensus, so nearly unanimous as to render the few dissenters powerless and irrelevant, that there is only one true right and only way to determine how to interpret the words of that document, and that is "according to the intent of the Founders."

Which is all well and good, but what motivated this book is that Professor Amar kept bumping his nose up against the fact that there are an awful lot of tools for divining the intent of the Founders that are never used. You see, the US Constitution did not arise ex nihilo, nor burst intact from the forehead of James Madison or anybody else. It was written by a fairly large committee that kept voluminous notes. The various members of that committee sent many letters home and to friends discussing what they were doing. Then it was debated extensively, almost entirely by the people involved in writing it. Much of that debate was in writing, and Professor Amar shows that what even most Constitutional scholars have read of those written arguments is a tiny sliver of a much larger body of work, and much of that tiny sliver is quoted out of context. They also debated it in 13 different state legislatures, each of which kept its own voluminous minutes of the debate. They also debated it in public, and various letters and articles from the time record what was said.

What's more, what was written in it, what was written about it, and what was said about it were frequently not entirely original. Many of the authors of this document were legal scholars. Both the Constitution itself, and much of what was said and written about it, quote extensively from British common law proceedings, from a hundred-plus years of Acts of Parliament, from the standard law textbook of the day, and most importantly perhaps from the 13 different state constitutions that preceded it. And, of course, the US Constitution is itself a sequel. No, not of the Declaration of Independence, but of the Articles of Confederation, the treaty between the 13 previously sovereign nations. In the process of dissolving those 13 nations into a single nation, the US Constitution had to address many of the same issues. Much of it is quoted or paraphrased from the Articles of Confederation. Each of those quoted laws or writings has its own history, and its own history of interpretation, and would have meant something specific to the committee and their audiences. What's more, the parts of it that are not in accordance with any of those many sources are frequently written in direct opposition to one or more of them, and where the US Constitution innovates or breaks faith with prior law the contradiction itself is a historical fact that is seldom sufficiently analyzed.

The net effect of what I've just summarized in two paragraphs is that even though nearly every American who graduated high school has taken a course on the US Constitution, and every American lawyer an even longer course on the Constitution, and that news stories and news analysis about the US Constitution appear in every newspaper almost every day, despite all of that, when all is said and done nearly all of that is taught or written by people laboring in a state of lamentable but hard-to-correct ignorance, and it is that ignorance that Professor Amar wrote this book to address. Not with his own opinions as to what the US Constitution's authors intended, but the actual documented provable facts of what they intended ... hence the 128 pages of end notes. And the results are both shocking and stunning. I've studied the US Constitution at significant length. I spent several years as a volunteer, then a board member, and briefly as president of a non-profit that specialized in helping people with Constitutional law issues. I devote at least two or three hours a week to reading the latest news analysis on how the news, particularly the latest Supreme Court rulings, impact on Constitutional issues. So I think of myself as pretty qualified to talk about the US Constitution -- and yet nearly everything in this book was new to me. And easily half of it clearly and unambiguously contradicts what I was taught in every class I took, so many contradictions that I can't even imagine where to begin or which ones to tell you to exemplify them.

There are some recurring themes. The Founders knew that once they dissolved the Articles of Confederation, once even any one state had ratified the Constitution, there was nothing to stop the pro-slavery states from writing their own Constitution and forming their own nation right then in 1789, when it would have been legal. The Founders universally agreed that no free nation could tolerate a permanent standing army, that such a thing was both too expensive for a free people to willingly pay the taxes to afford and too dangerous to liberty for a President to have at his command. So they were determined to persuade the South to join the United States at any cost, because the only alternative would have been to militarize the Ohio River. The resulting document, after the southern contingent got the best deal they could get, is not the neutral document that we were told about in Civics class, but an explicitly pro-slavery document in intent. As a bribe to bring them into the Union, southern states were given apportionment rules so generous as to guarantee that, as actually happened, nearly every early Federal political official and Supreme Court judge was pro-slavery. The result was a government that chose to interpret the Constitution in as pro-slavery a way as possible, so much so that the Taney Court (the particular villains of the book) were willing to flatly ignore the plain text of the Constitution to defend slavery even more than the Constitution allowed. And what excuse did they use when they did so? Flat-out lies about the "intent of the Founders." Sound familiar?

Another recurring theme is the issue of who gets to decide what government action is and isn't in contradiction to the US Constitution. Amar shows beyond any reasonable doubt that the true intent of the Founders was, literally, "everybody." He shows that it was clearly and unambiguously their public intent that the President ignore any law or court ruling he thought contradicted the US Constitution; that it was clearly their intent that Congress pass any laws they felt were constitutional regardless of what the executive branch or the courts thought, that it was the right of every state to ignore any law or ruling that they felt contradicted the constitution, and that in the extreme case where a President tried to usurp power and make himself the permanent ruler of America, that the duty to defend the constitution fell to the individual state militias, our current National Guard, which is why it was the clear intent of the Founders that the state governors have their own state armies but the federal government have none. He also weighs in on jury nullification, showing that while it was controversial even in 1789 as to whether or not ordinary Americans sitting on a jury were entitled to render a verdict on the constitutionality of a law, it is clearly and unambiguously the unanimous opinion of the founders that a jury has the right to acquit the defendant in front of them for any reason, including disagreeing with the constitutionality of the law under which he was charged. Furthermore, the Supreme Court case that everybody cites to prove that we settled this in favor of the Supreme Court as the ultimate arbiters of constitutionality, Marbury v Madison, doesn't actually say anything like that. And yet it was cited by experts and laymen alike as having said so before the ink was even dry? Why? Because people preferred it that way, so ever since then we've all pretended that that's what the intent of the Founders was and what the Constitution said.

Don't take my word for any of this. Don't even take Akhil Amar's. Read the book, read his citations, and see who's right, him or every teacher and author who's ever said anything about the Constitution to you in your entire life. And once you decide, watch how often paragraphs of his book that were written well before any current political event or news story happened flick your nerve endings, when you realize what it implies if he's right.