The Words That Made Us: America’s Constitutional Conversation, 1760–1840 by Akhil Reed Amar
By Timothy Sandefur
New York: Basic Books, 2021
817 pp. $22.99 (hardcover)
Decades ago, Harvard biologist Stephen Jay Gould became a pop culture icon thanks to his entertaining monthly essays on everything from the genetics of hyenas to long-term trends in the batting averages in professional baseball. They made him America’s most popular explainer of evolution, and he even portrayed himself in an episode of The Simpsons.
In fact, that was part of the problem: Among his many flaws, he gradually let his celebrity status, and his socialist ideology, overwhelm his scientific work—which, in truth, was remarkably weak. His pet theory of “punctuated equilibrium” was of dubious value, and he occasionally indulged in rhetoric that contradicted bedrock scientific principles. When John Maynard Smith, Richard Dawkins, and Daniel Dennett pointed this out at length, Gould simply ignored their criticisms and kept writing. His essays grew less accurate, more pompous, and increasingly distracted by amusing but unenlightening wordplay. Shortly before his death, he published a 1,433-page tome called The Structure of Evolutionary Theory, which made hardly a ripple in the scientific community because it was full of elaborate discourses on dialectical materialism and ignored the most important recent developments in evolutionary science, such as evolutionary psychology, which Gould despised because it contradicted his Marxist beliefs.
Unfortunately, something similar seems to be happening to Yale University’s Akhil Reed Amar, who has emerged as one of the nation’s most celebrated constitutional law scholars. In 1998, he published a pathbreaking book called The Bill of Rights, which combined ingenious insights into constitutional history with powerfully argued and original ideas about the meaning of the Fourth Amendment’s search warrant requirement, the proper interpretation of the Second Amendment, and other matters. Seven years later, he followed it with America’s Constitution: A Biography, which may be the best single volume on the Constitution since The Federalist.
Yet alongside its many strengths, America’s Constitution included some notable flaws. It made a number of assertions not borne out by the facts—the most extreme being Amar’s claim that the Constitution “must be deemed pro-slavery”—and it ignored important scholarship that contradicted some of Amar’s theories.1
For example, in discussing the meaning of the Commerce Clause—which allows Congress to “regulate commerce . . . among the several states” and is today viewed as the primary source of the federal government’s domestic powers—he made no mention of the research of professor Randy Barnett, one of the foremost scholars of the clause’s meaning, who painstakingly showed that the founding fathers understood “commerce” to mean economic transactions specifically, rather than the wide swath of noneconomic matters about which Congress legislates today.2 Given Amar’s own assertion that the Constitution’s authors thought it included “all forms of intercourse in the affairs of life, whether or not narrowly economic,” one would expect him at least to mention Barnett’s scholarship. His failure to do so was too glaring to attribute to mere oversight.3
Nevertheless, America’s Constitution was an outstanding contribution to constitutional law—particularly its opening chapters, which explained, and expertly refuted, the persistent misunderstandings of the federalist system that gave rise to the Civil War and still plague thinking about the relationship between states and the federal government.
His next book, however, doubled down on its predecessor’s defects. In America’s Unwritten Constitution, he examined important Supreme Court cases throughout history but distorted or neglected crucial aspects of legal precedent, obviously for ideological reasons. For example, he spent a chapter arguing that the Nineteenth Amendment should be interpreted not only as giving women the right to vote, but as protecting women’s rights more broadly. It’s an intriguing idea, one the Supreme Court actually blessed in a famous 1923 decision called Adkins v. Children’s Hospital. Yet Amar made no mention of Adkins. Why? Because that case struck down a minimum wage law and therefore is regarded as anathema by today’s anticapitalist legal academics, who classify it as one of the “Lochner era” cases (named for Lochner v. New York, a 1905 case that held that people have a constitutional right to decide for themselves how many hours to work, without government interference). Rather than seriously examining Lochner or its legacy, Amar simply labeled that case “a demon in constitutional Hell.”4
That tendency to substitute over-the-top language for substantive argument has become commonplace in his writing. In 2011, when a federal judge ruled that the “individual mandate” provision of the Affordable Care Act exceeded Congress’s Commerce Clause power—because instead of regulating commerce, it forced people to engage in commerce—Amar likened the decision to the Dred Scott case, which upheld the constitutionality of slavery.5 And his 2015 book The Law of the Land contained a chapter that radically misrepresented Bush v. Gore and accused the Supreme Court of “taking upon itself to resolve” the 2000 presidential election, which is not true: Al Gore asked it to do so, by filing that lawsuit.6
In The Words That Made Us, Amar exacerbates these bad habits still further. Although he says he wrote it to provide “a deep understanding of our collective constitutional past,” the book is unenlightening, poorly written, and riddled with appeals to popular fashion that merely make it seem unserious (675).
Consider, for example, his long passages on Alexander Hamilton. Amar makes no effort to critically appraise the first Treasury secretary—a power-hungry, often erratic man whom even some Federalists likened to Napoleon. He never mentions (to name a few things) Hamilton’s embarrassing argument that the president and senators should serve for life, his desire to deport immigrants for publishing “incendiary” newspapers, his secret negotiations with the British foreign minister (improper because conducted behind the back of Secretary of State Thomas Jefferson), or his effort, in reaction to the Whiskey Rebellion, to manufacture evidence framing Congressman and future Treasury Secretary Albert Gallatin for treason.7 Amar claims Hamilton had “solid anti-slavery credentials” despite the fact that Hamilton was not an abolitionist and, according to evidence discovered in 2020, probably owned and traded in slaves.8 And he summarizes Hamilton’s economic ideas so inadequately that readers might be misled into thinking he was a proto-capitalist when he was actually a mercantilist who thought the federal government should subsidize and even monopolize industry and finance (462). In Amar’s telling, Hamilton wanted to put “working capital in the hands of those likely to reinvest in future capital projects and new business ventures” (363). Actually, he wanted to put capital—extracted from the people in the form of that era’s version of income taxes—into the hands of those who government bureaucrats believed would undertake politically desirable ventures.
It’s hard to tell how much of this shallowness results from an effort to appear hip, given the popularity of the Broadway musical Hamilton. After all, Amar describes Hamilton as a “superstar, akin today to, well, Lin-Manuel Miranda”—and even dedicates the book to Miranda (342). The book is also riddled with amusing but unenlightening wordplay and long, irrelevant detours, such as the eight pages devoted to Ben Franklin’s famous “Join or Die” political cartoon.
All this frivolousness comes at the expense of the constitutional history Amar purports to offer. The book contains no mention of the 1837 Charles River Bridge case, among the most important decisions in American legal history. Gibbons v. Ogden (1824) and Dartmouth College v. Woodward (1819) merit only a single sentence each. It’s hard not to conclude that Amar would have been wiser to replace the first three-hundred pages with something that focused on the constitutional analysis he promised.
But even when he does focus on that, The Words That Made Us is glib and poorly argued. For instance, Amar spends several pages celebrating—but never actually explaining—Hylton v. United States, one of the most illogical decisions in Supreme Court history. That 1796 case involved the Constitution’s ban on any “direct tax” that is not “apportioned” among the states based on population—which means, designed in such a way that revenue collected from more populous states equals revenue gathered from less populous states. Apportioning taxes is so difficult that it has never been done, and it was not done in the Hylton case, which involved a tax on carriages. But instead of striking it down, the court upheld it by declaring that it was not actually a direct tax. Its rationale made no sense: The Constitution only contemplates direct taxes that are apportioned, the justices said, and because the carriage tax would be difficult to apportion, it must therefore not be a direct tax.
This reasoning is almost comically fallacious (the Constitution, after all, does address unapportioned direct taxes—it renders them illegal), and that may explain why Amar makes no attempt to justify it. Instead, he argues that the tax was economically desirable—and that complying with the Constitution’s language was just too hard to be worthwhile. The fact that “apportionment was exceedingly cumbersome,” he writes, “argued for a narrow definition of direct taxation” (348). But that is not true. To ignore the Constitution’s language because obeying it is “cumbersome” is not a praiseworthy exercise of legal judgment—it’s a politically motivated act of lawlessness. (Amar prefers the phrase “holistic functionalism” [349]). As the respected constitutional scholar David Currie wrote, Hylton “demonstrated a total unconcern for making sense of the constitutional text and a tendency to equate law with [the justices’] own policy preferences.”9 But Amar makes no mention of Currie or others who have criticized Hylton over the centuries.
It might seem excessive to criticize Amar for his discussion of such a relatively obscure case, but this example is indicative of Amar’s entire approach: In the name of “holistic functionalism,” he argues for an extremely broad conception of federal power—one that often elevates “practicality” over the Constitution’s language—and ignores or disparages possible objections to his views instead of seriously engaging them. In his discussion of the debate over the National Bank—the first major constitutional dispute in American history—he makes no effort to rebut, or even fairly describe, the arguments advanced by Jefferson, James Madison, and others, who held that Congress lacked power to create the bank. He simply labels these arguments “nonsense” and “gibberish,” though they were not; even if ultimately wrong, they were plausible enough to persuade some of the country’s greatest constitutional thinkers, including half of George Washington’s cabinet (366, 427). Madison, Jefferson, and others feared that invoking “implied” federal powers to justify establishing a bank would set a precedent for expanding federal power far beyond what the Constitution truly allowed. Amar simply waves away this argument by assuring readers that “even today Congressional power remains finite, not infinite, as Madison feared” (369). Given that federal law now dictates everything from the thickness of ketchup to whether boys can use girls’ restrooms, that assertion seems open to dispute.
Amar is certainly entitled to disagree with the Jeffersonians—these are complex questions on which lawyers of good judgment can differ—but he should at least analyze their views objectively. True, he discussed some of these matters in detail in his previous books and here seeks to focus more on history than law, but the book’s historiography is even worse than its tendentious constitutional analysis. For example, he purports to prove that Madison’s objections to the bank were dishonest and politically motivated by noting that although Madison called the bank unconstitutional in 1791, he signed a bill reauthorizing it in 1817. But he ignores the fact that Madison explained this change of mind. In an 1831 letter, the former president answered “the charge of inconsistency” by saying that he believed his defeat on the question of the bank’s constitutionality in 1791 had established a kind of legal precedent, similar to a Supreme Court ruling, that he was bound to follow when he entered the White House.10 To veto the bank bill a quarter century after his constitutional qualms were overridden “would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention,” he said. Whatever one thinks of this reasoning, it’s wrong to call Madison a hypocrite without even mentioning his rationale. Yet Amar not only omits this detail but makes no mention of the leading scholars on Madison’s constitutional views, such as Lance Banning, David Mayer, and, again, Barnett.
Amar’s refusal to fairly address opposing arguments deprives his book of objectivity and crosses the line into partisanship and historical caricature. That, combined with clumsy writing and repetitiveness (do we really need a list of twenty rhetorical questions to prove that Jefferson’s idea of rewriting the Constitution every generation was impractical?) make The Words That Made Us simply a bore—as does its off-putting pomposity. “The biggest news,” Amar writes, “is that a book such as this now exists” (675). Is that so?
This is all extremely disappointing, given that the country really could use a book of the kind this purports to be. Amar explains that he wrote it after observing the uninformed, hotheaded nature of recent arguments over the nation’s founding, especially after the “1619 Project” was unveiled. After watching “radical-chic intellectuals” proclaim “that Americans revolted in 1776 mainly to protect slavery”—a view he rightly calls “ridiculous”—he decided it was important to “bring together between a single set of covers the main constitutional episodes of the fateful era in which America became America” (677, 675). Amar would seem peculiarly well-suited for that job, given that his past writings on these subjects have been insightful and sometimes brilliant. No scholar, for instance, has more persuasively debunked the fallacies behind the nullification and secession theories that sparked the Civil War. Yet beginning with America’s Constitution (in which he himself called the Constitution “pro-slavery”), his work has become increasingly undisciplined, one-sided, politically motivated, and downright misleading.11
In a famous 1995 article, biologist John Maynard Smith remarked that Stephen Jay Gould was such a popular public intellectual that his fellow scientists were reluctant to challenge the flimsy theories he often indulged.12 They seemed to think Gould “should not be publicly criticized because he is at least on our side against the creationists.” That was imprudent, Smith wrote, because Gould’s ideas were “so confused” that he was “giving non-biologists a largely false picture of the state of evolutionary theory.” The same thing appears to be happening to Akhil Amar, whose superb early writings are increasingly overshadowed by the confused, sometimes false picture of the Constitution his more recent works promote. Yes, Americans do need a book that will help them better understand the values underlying our early constitutional history—and they need an authoritative and compelling intellectual voice to explain and vindicate the nation’s fundamental law. Sad to say, they will not find those here.
Editor's note: In the original posting of this article, the last paragraph mistakenly referenced a 1981 article by John Maynard Smith, “Did Darwin Get It Right?” London Review of Books, June 18, 1981.