Grand visions in an age of conflict.

• Author: Powell, H. Jefferson

INTRODUCTION

Last spring Professor Laurence H. Tribe commented that federal constitutional law is in a state of intellectual disarray: "[I]n area after area, we find ourselves at a fork in the road--a point at which it's fair to say things could go in any. of several directions" and we have "little common ground from which to build agreement." (1) No doubt fortuitously, two of our most formidable constitutional scholars, Akhil R. Amar and Jed Rubenfeld, have recently published systematic studies that implicitly challenge Tribe's conclusion that "ours [is] a peculiarly bad time to be going out on a limb to propound a Grand Unified Theory--or anything close." (2) With admirable boldness, Professors Amar and Rubenfeld have done precisely that--gone out on a limb, or rather two very different limbs, to propound their own accounts of what American constitutionalism is, or should be. Amar's America's Constitution and Rubenfeld's Revolution by Judiciary are alike in that each is its author's synthesis of a remarkable effort, sustained over a number of years, to develop a comprehensive vision of the Constitution. We have much to learn from their successes as well as from the points at which they are, I believe, in error.

1. AMAR'S CONSTITUTION

   A. The Constitution of Text and Structure

   Readers familiar with the prolific work of Akhil Amar will find in America's Constitution a fitting capstone to two decades of erudite and wide-ranging scholarship. From his first major article, Of Sovereignty and Federalism (published in 1987), (3) Amar's work has been characterized by an unusually dose attention to the text of the Constitution, to the structure of the instrument as a document, and to the Federal Republic as a system of government. An intense interest in history, backed up by exhaustive research, and an admirable willingness to think outside the confines of what passes in constitutional law for ordinary science have also been salient elements in the Amar oeuvre. His lively mind and facile pen have made his work unavoidable for anyone interested in constitutional law, including many aspects of the law of the Constitution, such as criminal procedure, that are now treated by almost everyone else as separate areas of research and writing.

   America's Constitution crystallizes both Amar's general approach and his substantive themes. He comments almost at the beginning that his goal is "to reacquaint twenty-first-century Americans with the written Constitution" rather than to contribute to the endless discussion of "legal dictums and doctrines that appear nowhere in the Constitution itself." (4) Almost at the end of the book's text, he comments that he "ha[s] tried to give the reader facts and figures--lots of them," (5) and he certainly cannot be faulted on either score. America's Constitution is not exactly a line by line review of the instrument's provisions, but I know of no other book in many years as comprehensive in its treatment of all parts of the constitutional text. It is, furthermore, full of historical information, some of it likely to surprise even the most informed reader, and all of it arranged so as to lure the reader on rather than deter her.

   Amar's interest in structural matters bears fruit repeatedly in discussions of the origins of constitutional language and of American governmental practice that are of the greatest interest. I will not stop to give details, but Amar's treatment of the pervasive role of slavery in the Constitution of 1787, and (on that topic and others) his industry in asking--and answering--questions about the practical consequences of constitutional arrangements are excellent examples of how fascinating his work can be. (6) Furthermore, Amar's zest for this sort of fine-grained and imaginative consideration of structural arrangements is infectious: When he remarks at the end that he thinks a "well-chosen number can be every bit as interesting as a well-chosen quote," (7) I suspect that a great many readers will feel, as I did, that Amar chose well.

   B. The Secondary Role of History

   America's Constitution is a learned and in some respects even a brilliant book, but it is also deeply problematic. Perhaps the briefest way to identify my concern is that I fear this is a book, and maybe an author, unsure of what the subject under discussion really is. The result, I think, is that in too many places the reader not caught up entirely by Professor Amar's facts and figures may find herself unable to say precisely what sort of conclusions Amar is offering us.

   The full title of Amar's book is America's Constitution: A Biography, and one might expect the final noun to define, even if metaphorically, the book's genre. The 1787 text that we refer to as the (original) Constitution has a history in several senses: It is a historical document and an enormous amount can and has been said about its antecedents, the history of its drafting by the Philadelphia Framers, and the debates and political maneuvering by which it came to be accepted as the constitutive legal instrument of the American Republic. Similar enquiries can be made about the later bits of text that together with the 1787 document make up the Constitution to be found in casebooks on federal constitutional law. It would make obvious if nonliteral sense to term a historical study of some aspect of these matters "a biography." It would be clear the author's claims were assertions of political history (i.e., this is how Alexander Hamilton and company turned a clear Anti-Federalist majority into the losing side on the issue of ratification in New York) or intellectual history (i.e., this is what Alexander Hamilton thought the term "direct Taxes" meant). Amar gives us a considerable amount of detail about the politics behind various constitutional provisions and the constitutional opinions of various historical actors. Furthermore, in the last paragraph of the book he claims that his goal has been "to understand precisely what the document did and did not mean to those who enacted and amended it," (8) suggesting that he is indeed writing intellectual history. However, while it is dangerous to reject a scholar's own explanation of his methods and goals, I believe that this statement is in reality erroneous: it is, as I shall argue, quite contrary to Amar's actual practices in justifying claims about constitutional meaning in America's Constitution. Despite all its historical detail, political and intellectual, America's Constitution is not, in the end, a book of history.

   Consider, as an example, the lengthy discussion of the Constitution's Preamble to which Amar devotes the first chapter of America's Constitution. As in many other chapters, Amar uses his focus on a particular constitutional provision as the vehicle for a discussion of other, more broad-ranging themes. Chapter one returns to questions Amar has thought about for many years: the nature of the Union and the locus of sovereignty within that Union. Amar quickly and correctly reminds the reader that debate over such matters loomed large in the antebellum history of the United States. Hamiltonians and Jeffersonians fought over the scope of congressional power, Webster and Story squared off against the nullifiers, and Unionists and secessionists alike justified the Civil War--all in terms of an interminable debate over whether the states or the Union was originally sovereign, what the various events since independence might have done to the original arrangements, and (finally) whether individual states had the legal right to leave the Union.

   There are many historical enquiries one can make into this history of debate, but to be historical enquiries they must address issues about what the individuals and groups involved meant or did, or about what the ordinary person of the time would have thought about the matter (often a hard question to answer with confidence, but not in its nature ahistorical). But Amar's real interest lies not in the history of antebellum opinion but in what he evidently thinks of as the answer to a normative or legal question. Speaking in his own voice, he tells us that "both before and after ratifying the Articles [of Confederation], the people of each state--and not the people of America as a whole--were sovereign"; (9) "[a]lthough states would enter the Constitution as true sovereigns, they would not remain so after [a] ratification" that "would itself end each state's sovereign status and would prohibit future unilateral secession"; (10) it is an error to claim "that none of the thirteen original states had ever been truly sovereign." (11) Each of these assertions was entirely familiar to antebellum constitutionalists. Thomas Jefferson and Jefferson Davis agreed with the first and last while denying the second; John Jay and Abraham Lincoln held the opposite view ... and Professor Amar is willing to explain to us where each was wrong and each right, and why. (12)

   It is rather fun to see a twenty-first-century scholar answer nineteenth-century questions and chastise nineteenth-century statesmen, but if this were meant to be history, the attempt to do so would be a category error: The views of historical figures on a question of constitutional interpretation in dispute among them cannot be right or wrong when the question at hand is what the historical meaning of the document was. They are witnesses to the question of historical meaning, whereas the issue of who was right and who wrong is a normative matter of law or politics or morality. Unless one adopts a strongly originalist approach to constitutional interpretation, the attempt to adjudicate between the opinions held by these historical figures mixes intellectual apples and oranges. The difficulty is not ameliorated even if we shift our attention to what Amar later calls "the meaning inherent in the basic acts of constitution." (13) It is true that President Lincoln thought (and Professor Amar...