America's Constitution: A Biography (Book Review)

America’s Constitution is a thoughtful, impressively detailed, reasonably concise, relatively accessible overview of the Constitution, its historical context, and its applicability. Although author Akhil Amar intended this book to go beyond “general classroom textbooks about the Constitution . . . pitched at an average ninth grader,” I sense it may be a bit dense for casual readers. But for anyone with strong interest and at least a basic foundation in constitutional law, history, or politics, America’s Constitution is a trove of fascinating information and insights.

For instance, did you know that, but for Article I, Section 2’s infamous three-fifths clause that awarded slave states additional congressional representation for their human property, John Adams would have won the election of 1800? Had the electoral college been apportioned on the basis of free population, Thomas Jefferson would have finished about four electoral votes behind Adams.

Another fascinating consideration is that the United States actually got lucky with respect to the direction in which grew. The 1820 compromise of course officially recognized the country's division into North and South at the Mason-Dixon Line, and we tend to conceive it inevitable that the U.S. would grow due west from the original colonies. But southern slavocrats, in fact, attempted to push the country’s growth south into Cuba and the slave-rich Caribbean. This scenario would have led to a much darker American history, as masses of new slaves would have – via the three-fifths clause – massively increased the South’s political clout in Congress. It seems doubtful that abolition could have come about in the face of such slavemaster political power had the U.S. curled south like a backwards comma instead of stretching west.

Amar weaves a couple of central themes through America’s Constitution. In his view, the Constitution is more democratic than some scholars, who emphasize distinctions between democracies and republics and argue for an American republic, give it credit for. Second, Amar sees a constitution that, through amendment and practice, has evolved into a more national, federal document than the one we started with.

Although Amar quite studiously avoids discussing constitutional developments’ implications on contemporary politics, I inferred through my reading that Amar’s underlying themes of democracy and nationalization would cut both ways in today’s political world.

First, a constitution infused at its creation with fairly radical democratic content, which amendment has only increasingly democratized, seems to militate against some of the opaqueness with which modern politics is undertaken. Pork-barrel pet projects, stuffed surreptitiously into sprawling, voluminous, jargon-laced omnibus legislation, clearly contradict the spirit, if not the letter, of constitutional provisions that provided, for instance, for open courts accessible to “We the People.” Shady machinations among business leaders, between public and private sectors, and among politicians equally violate the Constitution’s spirit. In this way, it seems that libertarians’ modern complaints about large, unresponsive, even secretive government stand on solid constitutional ground.

But the Constitution’s increasingly national character cuts against some of today’s arguments from the right. The Founders unarguably crafted the document at the outset to carefully balance state power against federal, and they conscientiously guarded states’ prerogatives against federal encroachment. Rightist voices, frustrated with perceived government ineptitude and shrinking personal liberties, sometimes point to the Constitution’s original tilt toward the states to justify their position. But, to oversimplify, America’s antebellum era illuminated some of the grave violence states could do to the freedoms the Constitution barred the federal government from infringing. The Reconstruction Amendments (XIII-XV) aimed to reign in wayward states by increasing federal authority. The Sixteenth Amendment enabled Congress to levy progressive income tax—in effect to redistribute wealth. Amendments extending (or securing) the vote for blacks, women, and youth democratized the process of selecting both state and federal officers; on the federal level, this helped “We the People” circumnavigate corrupt state regimes. Finally, even at its birth, the Constitution’s infamous Commerce Clause arguably provided Congress with broad power to address both economic and noneconomic issues “among the several States,” or, in other words, that spilled across state lines. If the Commerce Clause indeed spreads so broadly, there's not much it cannot authorize Congress to do.

If, in fact, the Constitution originally granted Congress broad authority over interstate commerce, and subsequent amendments have nationalized the Constitution, considerably empowering the central government at the expense of the states, then the more extreme calls for the emasculation of the federal government run contrary to the Constitution’s current spirit, as well as constitutional practice.

I’ve only touched a few issues that America’s Constitution treats. As Amar reminds readers in the postscript, constitutional history and analysis are forums for intense disagreement. Brilliant minds fail to agree on what the Constitution means and how it should apply. My main takeaway, I think, is that applying the Constitution to real-life issues is difficult. I tend to be wary of those who claim this or that presidential administration is acting illegally, contrary to the Constitution. Sure, President Bush may have stretched the document’s provisions. President Obama could arguably be doing the same thing. But any who excoriate modern executives on ambiguous constitutional bases must also levy the same criticism at Abe Lincoln, who suspended habeas corpus and (arguably) unconstitutionally acted before the duly elected Congress could convene in the early days of the Civil War. The upshot: it’s complicated. We should approach the Constitution’s meaning and proper application with humility and open minds.