AKHIL AMAR'S UNUSABLE PAST.

• Author: Ablavsky, Gregory

THE WORDS THAT MADE US: AMERICA'S CONSTITUTIONAL CONVERSATION, 1760-1840. By Akhil Reed Amar. New York: Basic Books. 2021. Pp. xiv, 817. $40.

INTRODUCTION

Akhil Amar's (1) doorstop of a constitutional history, The Words That Made Us: America's Constitutional Conversation, 1760-1840, appeared in spring 2021 to both scholarly (2) and popular acclaim. (3) Amar's "love letter to America" (p. 702), the first of a projected three volumes, offers a sweeping narrative of the creation of the United States and the U.S. Constitution from the beginning of the American Revolution through the Jacksonian era (p. 697). At a moment when Americans are sharply divided over how to narrate the nation's history, Amar seeks to offer a "common core" by returning to "constitutional basics" (p. 676). The book hopes to meet the needs of a stormy present by providing the "usable past" that historians have been unable to give us (p. xii).

It fails. Likely few books could restore a common historical narrative amidst the current moment's fractiousness. But Amar's account provides a surprisingly unusable past, in large part because he misreads the challenge. The problem is not, as Amar diagnoses, that we lack a purportedly fair-minded observer to sit in judgment on--and ultimately vindicate--the Founders. Rather, the difficulty is that such conventional narratives of the "Founding" strain to accommodate the complex and pluralist nation that the United States always was, a reality that a more capacious constitutional history might allow us to see. As a result, Amar's defense of the Constitution's legitimacy by repackaging some very old, shopworn arguments and evidence will do little to settle our ongoing fights over the past.

Lawyers conceive of a usable past as a historical account that they can deploy in current legal fights. (4) Amar claims that this is his aim (p. xii), but his familiar and abstract interventions are unlikely to shape present-day law: few court decisions will shift because Amar proclaims secession unconstitutional. His truer aim, as he reveals at the book's end, reflects a different meaning of the usable past: a version of history that addresses present-day exigencies more broadly. (5)

For Amar, the crisis of the moment is a partisan battle over the Founders' moral authority, with those on the right insisting that "America's founders never did anything wrong" while those on the left claim they "never did anything right." (6) We need, Amar suggests, a fair-minded scorekeeper who will offer "facts and analysis" in place of partisan rancor (p. 677). He volunteers.

What follows is a panoramic tour through the early republic starring the familiar men whom Amar calls the "Big Six" Founders. (7) Amar commentates along the way, offering readers a running tally of who among them (and among scholars) was right or wrong and why, all the while defending the Constitution's democratic legitimacy. The excursion is often entertaining--Amar can be an opinionated and incisive guide.

But the result is decidedly not the "fresh story of America" Amar promises (p. 678). On the contrary, much of what Amar peddles is very old indeed, ignoring generations' worth of scholarship to parrot a centuries-old nationalist hagiography. Perhaps Amar's oldest and most tired assumption is that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. One senior scholar piquantly summarized this historical approach to me years ago as, "Was Andrew Jackson a son of a bitch?" (8) (Amar says no: pp. 585-623). For Amar, the history of the Constitution's creation necessarily requires debating, yet again, which of a small circle of drafters was most praiseworthy or deserves the most credit for its best ideas.

If the central function of constitutional history is to arbitrate the legitimacy of what these men wrote and did, then we are ultimately faced with a dichotomy: good or bad? Amar seeks to introduce complexity and nuance in his response, pointing out where various people got things wrong or right, but his core commitment is never in doubt: he is on Team Good. But his efforts to blunt various criticisms levied against the Founding, picking up where the abortive 1776 Commission left off, (9) paint him into some difficult corners--especially when he endorses some dubious exculpatory narratives around the exclusion of women, African Americans, and Native peoples in early America.

Yet Amar's own framing points in a different, more promising direction. He focuses much of the book around the idea of a "constitutional conversation," a cacophonous and capacious dialogue that encompassed many Anglo-Americans. Unfortunately, his account of that conversation quickly collapses to the views of a handful of too-familiar figures--a cramped vision that reads backward our own sometimes narrow constitutional conversation privileging a clubby legal elite oriented around the Supreme Court. Democracy, "America," and "the people" all feature prominently here, but only as abstractions that get seen but not heard. This is a notably undemocratic history of democracy.

For over a generation, historians have offered a different version of the constitutional conversation--one that is fuller and more inclusive, highlighting the many ways that the actual people accessed and shaped constitutional law. (10) A host of scholars, including many in law schools, have explored these conversations among groups and in places far outside the familiar confines of The Federalist Papers and the US. Reports. (11) Even intellectual histories focused on current doctrinal questions have increasingly drawn on a more expansive range of sources and voices. (12) The point of this approach is not more inclusiveness to serve current sensibilities; it is that a diverse range of actors and arguments mattered. They shaped law. Often, the "Big Six" were reacting more than acting.

Judging by the pages of law reviews, then, many in the legal academy have already moved beyond Amar's narrow account. Yet Amar's readers might not realize this. Syntheses by prominent scholars like Amar play an important role: they depict the state of the field for nonspecialists and translate scholarship to a general audience; they get space and attention. Prior big, thoughtful, well-sourced volumes have helped us better grasp the Constitution's creation and ratification. (13) Yet those works, summarizing a prior generation of scholarship, predate the extensive new work in legal and constitutional history that has embraced more sweeping, capacious reconstructions of the constitutional conversation. Amar's behemoth is thus a double-missed opportunity--both because current constitutional history is bigger, more varied, and more interesting than his tired story, and because such histories, in my view, best speak to current struggles over history's meaning.

In making this case, this Review proceeds in three parts, each centered around one of Amar's major interventions. In Part I, I explore Amar's critique of historians and consider his methodological alternative. In Part II, I consider two of Amar's key frames, "constitutional conversation" and "geostrategy," arguing that both of these echo, but distort, some of the key recent findings from historians. And in Part III, I explore what is perhaps the most significant addition from Amar's prior works--an examination of the exclusion of women, Native peoples, and African Americans from constitutional debates--but ultimately find his insights lacking. I conclude by suggesting a way forward using works that have effectively adopted the broader approach to constitutional history.

1. HISTORIANS AND THE PURPOSE OF THE PAST

   One of the reasons we need his book, Amar argues, is because historians have fallen short. At core, the problem seems to be that historians have failed to offer the kind of opinionated takes on prominent Founders that dominate Amar's book. But his criticisms are not only ill-informed, they also fail to build a more usable past. His fundamental argument--an aggressive assertion of the constitutional brilliance of George Washington--rehashes some of the oldest strands in American historiography.

   Amar's volume opens with three critiques of historians' shortcomings in examining constitutional history: historians have abandoned institutions and the law in favor of a focus on reconstructing the lives of "common folks"; they have adopted overly narrow periodizations and overspecialized focuses; and they merely report, rather than assess, past legal claims (pp. x-xi).

   The first two criticisms are very familiar to historians. Indeed, they parallel prominent debates among historians, with some echoing Amar's laments. (14) Of course, it is not clear why these limitations are problems for constitutional history. After all, "common folks" had something to say about the Constitution, as I'll discuss later. (15) And it has primarily been historians pushing lawyers to adopt a broader chronological frame around the Constitution rather than vice versa. (16)

   As critiques go, these are also pretty shallow. The primary hallmark of current historical scholarship is not parochialism; it is overabundance. As in any scholarly field, many historians produce targeted work based on a careful, close reading of evidence. But these monographs routinely become the basis for the much more sweeping syntheses that historians have also churned out of late. Jill Lepore's single-volume history of the United States is merely the most prominent and successful of a whole host of recent volumes in this vein--including a couple that Amar himself cites, although he ignores most of them. (17) Meanwhile, rumors of the death of institutional, or legal, or political history are greatly exaggerated. On the contrary, all these fields have had a resurgence of late. At his own university, (18) and even his own law school, (19) Amar would discover many historians doing...