America's Constitution and the Yale School of Constitutional Interpretation.

• Author: Amar, Akhil Reed

America's Constitution: A Biography (1) tries to explain how and why the supreme law of our land was enacted at the Founding and then amended over the ensuing centuries. The biography's narrative tracks the textual flow of the Constitution itself; article by article and amendment by amendment, I take my readers on an interpretive journey through the document. While I give some constitutional patches of text far more attention than others, I try to say at least something in passing--ideally, something fresh and important--about every notable constitutional provision.

The book targets a wide audience. At one end of the spectrum I aim to make the Constitution's letter and spirit understandable to members of the general public--say, high school seniors taking Advanced Placement History or Government. At the other end, I have tried to write something that even gray-aired scholars will find significant and surprising. (To put the point autobiographically, I have filled my account with facts, ideas, interpretations, and insights that I stumbled upon only in the course of researching and writing this book after nearly two decades of teaching constitutional law at Yale.)

I shall not today attempt a comprehensive summary of the book's twists and turns. (2) Instead, I shall try to place America's Constitution against the backdrop of several noteworthy constitutional law books authored by my predecessors and colleagues on the Yale Law School faculty over the last half-century. Together, these books define the core curriculum of what might be called the modern Yale School of Constitutional Interpretation. (3)

1. BICKEL'S LEAST DANGEROUS BRANCH

   The publication of Alexander Bickel's The Least Dangerous Branch in 1962 marked a milestone in the history of American constitutional scholarship. (4) Prior to World War II, serious books on the Constitution came mainly from high-powered judges, lawyers, political scientists, and historians--consider, for example, Joseph Story, Alexis de Tocqueville, Thomas Cooley, Woodrow Wilson, Charles Beard, Andrew C. McLaughlin, Charles Warren, and Edward S. Corwin. For much of the early twentieth century, common law courses such as contracts and property dominated law school curricula, and few law professors penned big books on broad questions of constitutional law. When one such ambitious book did appear in the 1950s--William Crosskey's epic two-volume saga, Politics and the Constitution in the History of the United States (5)--it was met with savage criticism from much of the established legal professoriate. (6)

   A new era dawned when Yale's Charles Black (about whom I shall have much more to say presently) published a marvelous book, The People and the Court, (7) in 1960 and his colleague Bickel responded with his own provocative book two years later. Since the publication of these two classics, the prominence of constitutional law within top law schools has risen considerably, as has the proportion of cutting-edge constitutional scholarship produced by law professors.

   Several of the largest questions that Black and Bickel posed remain central to constitutional discourse today. How can judicial review by unelected judges holding lifetime appointments be reconciled with democratic theory and with the commitment to popular self-government evident throughout America's Constitution? What sorts of questions are off-limits to judges? Are such limits to be drawn and enforced solely by the legislative and executive branches, or should judges themselves also develop regimens of self-restraint?

   While America's Constitution: A Biography does touch on these questions, I have tried to shift and widen the focus so as to give readers a less court-centered and more panoramic account of constitutional law. Bickel took for granted the basic democratic thrust of the nonjudicial branches, but in so doing, he glided by many constitutional questions that deserve more careful study. For example: Who was allowed to vote in congressional elections at the Founding, and how and why have these rules changed over the centuries? How much, or how little, did the Three-Fifths Clause skew antebellum apportionment maps and thereby compromise the fundamental representativeness of the House of Representatives? How should we understand the Senate's equal representation of unequally populous states? How, if at all, did the Seventeenth Amendment democratize the Senate, and how did this direct-election amendment influence other branches of government? Why did the Framers eschew direct national elections of the President, and how has the electoral college system changed, both formally and informally, over the years? Can various constitutional limits on congressional and presidential eligibility be squared with democratic theory?

   As for the issues at the heart of Bickel's book--issues directly concerning the judicial branch--here, too, my account differs markedly from Bickel's. For example, I try to cast light on the history and structure of the process of judicial nomination and confirmation. Bickel's book says almost nothing about this process (8)--an odd omission for a work that seeks to analyze the Supreme Court in a broad political context. Odd, too, was Bickel's equation of the Supreme Court with the entire federal judiciary, an equation evident not only in the book's full title--The Least Dangerous Branch: The Supreme Court at the Bar of Politics-but also in its opening sentence: "The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known." (9) In my book, by contrast, I note both similarities and differences between the Supreme Court and other federal tribunals. For example, while the Supreme Court's size has shifted only marginally in two hundred years--from six to nine Justices, (10) the size of the federal judiciary as a whole has skyrocketed. Today, there are roughly fifty times as many Article III judges as at the Founding. (11) Or to put the point another way, in the 1790s there were roughly seven House members for every lower federal court judge, whereas today there are two federal judges for every House member. My Yale Law students are far more likely to clerk for federal judges than to intern for members of Congress. With these basic facts in mind, we can begin to see some interesting aspects of the rise of the Framers' third branch over the centuries.

   Another question raised by the distinction between the Supreme Court and the third branch: Why did Article III allow lower federal courts to try various cases that were off limits to the Supreme Court when sitting in original jurisdiction? This, of course, was the technical issue underlying Marbury v. Madison. (12) Bickel opened his book with an extended analysis of Marbury, but he said virtually nothing about various jurisdictional and procedural issues at the heart of the case. Instead, Bickel focused on the great question of judicial review. (13) While I, too, have much to say about judicial review, I also analyze the technical issue of original jurisdiction. That issue, I argue, gives us a window onto grand historical and structural themes at work at the Founding--in particular, how certain geographic considerations drove many of the do's and don'ts that became part of the Constitution of 1787-1788. For example, the original jurisdiction rules of Article III were, I argue, largely motivated by venue considerations and the felt need to safeguard local juries, who played a much larger role in the Founders' world than do juries today. Because the Supreme Court would sit in the nation's capital while other federal courts would hold trials in the hinterlands, any expansion of the Court's original jurisdiction would threaten to cut local juries out of the loop and would compromise other important venue values. (14)

   The difference between Bickel on Marbury and Amar on Marbury telescopes larger differences of approach and interpretive style. Bickel's book had rather little to say about the Constitution's text, history, and structure; instead Bickel concentrated on the Court's recent case law. My book does just the opposite. To say this is not necessarily to criticize Bickel. In a field as vast as constitutional law, no single book (or author) can do everything, and methodological choices must be made. For better or worse, my own methodology places me much closer to Bickel's towering Yale colleague, Charles Black, and to his most famous Yale students--John Hart Ely and Bruce Ackerman--than to Bickel himself.

2. CHARLES BLACK'S STRUCTURE AND RELATIONSHIP

   In his elegant meditations on Structure and Relationship in Constitutional Law, Charles Black powerfully reminded us that the Constitution is more than a jumble of disconnected clauses. (15) Because the document forms a coherent whole, sensitive readers must go beyond individual clauses to ponder the larger constitutional systems, patterns, structures, and relationships at work. Throughout America's Constitution, I have tried to heed Black's wise counsel.

   A few examples. In McCulloch v. Maryland, (16) Chief Justice Marshall famously upheld Congress's power to create a national bank. The case is often read as pivoting on the words of the Necessary and Proper Clause, but Black's book correctly stresses that Marshall's opinion in fact did not place significant affirmative weight on this clause. (17) Before Marshall's McCulloch opinion even began discussing this clause, the Chief Justice had already laid out his main argument for broad congressional power to create a federal bank. And though Marshall did wave in the direction of various other...