AMAR'S WORDS THAT MADE US.

• Author: Gerhard, Michael J.
• Position: Akhil Reed Amar's book about constitutional history

INTRODUCTION

Our generation's preeminent constitutional scholar, Professor Akhil Amar of the Yale Law School, is, like the Constitution itself, a national treasure. His most recent book, The Words that Made Us, is another masterpiece of constitutional and historical exegesis, the first of three volumes that illuminate in what ways the American Constitution has defined, energized, united, and divided the nation and its people through constitutional conversations and engagements over its meaning throughout our history. The book is awash with stories about the incremental broadening of "We the People,'" the hero, authority, casualty, and beneficiary of the words that made us. It is an intricate tale, but Professor Amar's book is ultimately a celebratory tale. Fully aware of and appropriately sensitive to the dark detours of our history and laws, the words that made us, as Professor Amar explains, uplift and challenge the nation to understand and aspire to implementing the great promises of a governing document that belongs to all of us, even though none of us has had the opportunity to sign, approve, or amend it.

In this Essay, I focus on three big questions that Amar's book tries to answer. First, I consider whose voices count in this grand tale of the words that made us. I commend Professor Amar for uncovering the different conversations heard in each era, but we cannot ignore the suppression and deliberate exclusion of some voices at different times and the ramifications of such tragedy and imperfection. Next, I consider what kinds of conversations matter in the construction of the Constitution and its meaning over time. There are formal dialogues that are part of the story of the words that made us, but there are also informal ones among the public. Lastly, I examine the normative framework shaping the narrative. The triumph of the Constitution is a triumph of reason. Reasoned elaboration is, or should be, the lifeblood of the law, but I am less confident and optimistic than Professor Amar that it has been the hallmark of our constitutional conversations. Just as economists should not ignore irrational behavior and preferences in their analyses, Americans, particularly American legal scholars, cannot ignore the fact that the irrationality and imperfections of our dialogues--both in what is said and not said--say at least as much about who we are as a people and our Constitution as the more rarified discussions that play an arguably outsized role in the inspiring and inspired story that Amar tells.

1. WHOSE WORDS COUNT?

   Professor Amar's scholarship grapples with the biggest and hardest questions of constitutional law, and The Words that Made Us is no exception. He is deft at both recognizing the questions that need to be asked and the patterns of argumentation and events that illuminate the answers.

   The first big question raised in The Words that Made Us is whose words count. At the very least, we know that the words of the Declaration of Independence, the Preamble, and the Constitution are central to this inquiry. The drafters of these seminal documents feature prominently in Professor Amar's narrative--the language, learning, and experience that drove Thomas Jefferson to draft and John Adams and Benjamin Franklin and a few others to finalize the draft of the Declaration of Independence, the 39 delegates who signed the Constitutional Convention (though not all with the same impact), the handful of men who played the most significant roles in drafting the Constitution and its Preamble, and, perhaps most importantly, the men who participated in the ratification conventions, all unquestionably matter in the construction of the words that made us. Their intentions or expectations hardly matter more than the words themselves, because the words themselves are more widely and better known to the people who count--the generations of Americans who followed the Founders. I am less confident that there is a fixed construction, found through a linguistic or other kind of exegesis later, that can stand for the original public meaning because it aims at displacing the formal language that actually best reflects the objectives of the Constitution's creators and meaning--the text of the Constitution itself. To his credit, Professor Amar makes those words the primary focus of his narrative.

   The conventional wisdom is that the drafters of these documents were great statesmen and political thinkers, while, in Amar's narrative, a more complex picture emerges, as it should. He is concerned, as he says in his Preface, with questions such as. "What was the basic structure of the nation's [constitutional] conversation? Who participated, how, where, and why?" (p. xii). He shares "a panoramic story of America itself, a story of how various widely scattered New Worlders first became Americans and then continued to debate and refine what being American meant, legally, politically, militarily, diplomatically, economically, socially, ideologically, institutionally, and culturally--what being American meant constitutionally" (p. xiii).

   Amar is acutely aware the Founders themselves were also something else, something we should not ignore in constructing the meaning of the Constitution: In a reversal of John Rawls's veil of ignorance, (2) these people knew, or had good reason to know, which roles they would likely have once the Constitution actually went into effect. The drafters and ratifiers had some sense beforehand what roles they wanted to play in the system they were establishing. George Washington, who presided at the constitutional convention, had more than an inkling that he might be called upon to be the President, and others, such as James Madison, Oliver Ellsworth, John Adams, Alexander Hamilton, John Randolph, James Wilson, James Iredell, and John Marshall, who participated in the drafting or ratification of the Constitution, had previously served in positions of power in the colonies or the Continental Congress, or in politics, and therefore had reason to believe, or expect, that they would be eligible for and had realistic chances to attain the highest ranking federal and state offices. It is one thing for the drafters and ratifiers...