CONSTITUTIONAL SMALL TALK.

• Author: Mazzone, Jason

INTRODUCTION

With The Words That Made Us, (2) Akhil Reed Amar has given us a big book. The volume--the first in a planned trilogy-provides a sweeping (re)vision of early American constitutional history that begins with the news reaching Boston in December 1760 that King George II is dead and his son is on the throne, and ends (for now) in 1840 when the Founders have passed away, James Madison's convention notes have just been published, and Congress has apologized for its (unconstitutional) 1798 Sedition Act. Amar's historical account centers on big individuals and their contributions to the big national political conversations and events that determined the shape and workings of America's constitutional system during its first decades.

For Amar, size matters. An important message of the book is that some celebrated figures--John Adams, in particular-have secured larger historical reputations than they actually deserve, while others, such as Thomas Hutchinson (for his sophisticated defense of imperial power) and James Wilson (for explaining that sovereignty is vested in the people and can be divided among governments) merit grander billing. Yet even as Amar brilliantly demonstrates how the words of notable men--Benjamin Franklin, Alexander Hamilton, John Marshall, George Washington ("the real father of the Constitution" (p. 525)), and others--made "Us," his story does not ignore the significance, to our constitutional origins and development, of lesser figures or of the public more generally. For one thing, much of Amar's account centers on episodes of prominent men seeking to persuade others, often a great many others: the lawyers (John Adams is one) arguing to judges and the courtroom public in the urgent 1761 Boston writs of assistance case (pp. 14-22); agitators, in print and in person, calling for action during the Sugar and Stamp Act controversies of 1764-1766 (pp. 45-64) and subsequent episodes on the road to revolution; innumerable writers and orators weighing in during robust debates that preceded the ratification of individual state constitutions (pp. 155-62) and then the federal Constitution (pp. 242-61); President Washington, in his inaugural address, making a case for national unity (pp. 307-09); Secretary Hamilton pitching his visionary economic plan to Congress and the public (pp. 360-66); James Madison and Thomas Jefferson soliciting state lawmakers to oppose the 1798 Sedition Act (pp. 453-54); and Chief Justice John Marshall, in McCulloch v. Maryland, teaching "all Americans, both in the moment and for all time--how to read the Constitution" (p. 533). Besides the role of the public as audience. Amar signals also when conversations featuring prominent players on the national stage had local. small-stage analogs. For example, during the debate-rich decades of the 1770s and 1780s. Amar reports that

America's constitutional conversation took many forms...--grand oratory and public declamation. Patrick Henry-style; less florid public discourse, as in the Massachusetts Ratifying Convention; high-stakes debates and horse trades behind closed doors, as at Philadelphia; informal mealtime conversations...; terse state constitutions in direct discourse with each other; elite newspaper essays; elaborate pamphlets; short squibs, cartoons; poems; performance art; public toasts; and much more (p. 302). More generally, a key theme of Amar's account is popular sovereignty. It, by definition, is public-oriented: the words of prominent figures mean very little if they do not convince the listening masses. Still, even though the larger public is never far from earshot, by purpose and design, Amar's book is the story of America--not an ethnography of everyday Americans.

This Essay builds on--and out from--Amar's own account to consider more specifically constitutional conversations among ordinary Americans at a local level: what I call constitutional small talk. The Essay is not comprehensive. Its single perspective (one among various possibilities) is how the Constitution itself encourages, facilitates, and even requires conversation among ordinary citizens. Some constitutional mechanisms, the essay shows, generate conversations at a local level, thereby reinforcing preexisting ties among neighbors while other mechanisms bring individuals into conversations with strangers, within a single state or across the nation. A conversational framework might be applied to many features of the Constitution. This Essay takes up just four topics: federalism, judges and juries, security, and the press.

1. FEDERALISM

   Federalism, a structural feature of the Constitution, facilitates and broadens political conversation because in a federal system the national government is not the only game in town. When Amar turns his attention to the processes of drafting and ratification of constitutional text after the revolutionary war, he is concerned not just with the Philadelphia convention and debates that led to the ratification of the federal Constitution. Instead, he rightly emphasizes the adoption, beginning in 1776, of state constitutions, as important moments in which citizens within a single state deliberated over the design of their own state governments and in so doing became part of a national conversation about the contours of American constitutionalism itself (p. 155). That would not have happened except for federalism.

   Federalism's conversational significance extends beyond a multiplicity of constitutions. Dividing power (as federalism does) between the national government and the states increases opportunities for individuals to serve in elected office--after conversing with and persuading their fellow citizens to vote for them. Divided power also expands opportunities for private citizens to influence law in order to achieve their preferred goals. Rather than voicing their preferences toward a single governing entity, citizens can push their views at the federal, state, or local levels. A loss at one level of government need not foreclose efforts to persuade at another level. Further, when, as is true under the U.S. Constitution, allocations of powers are identified generally, there exist opportunities for ongoing conversation about which level of government can and should exercise authority.

   Federalism's conversational benefits are also reflected in the electoral system that necessarily results. A federal system requires multiple elections with voters playing regular and different roles. Federalism means that there are state (and local) governments, thus necessitating the selection of state (and local) representatives and officials. Separately, voters must choose their federal representatives--and our federal elections occur with clockwork frequency. The Constitution requires "the People" of each state to...