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November|December 2005
Fundamental Imports By Mark Tushnet
Second Look at the Second City By William Henderson
Elsewhere
Born on the Fourth of July By Murray Dry

Born on the Fourth of July

America's Constitution was redeemed by the Declaration of Independence that came before it, not 75 years later by the Civil War.

By Murray Dry

THOSE WHO TAKE AN INTEREST IN CONSTITUTIONAL MATTERS often focus unduly on Supreme Court pronouncements. In America's Constitution, Akhil Reed Amar, a professor of law and political science at Yale University and the author of a prize-winning book on the Bill of Rights, redresses this bias. He offers what he calls a "biography" of the nation's fundamental law and, in particular, of the first three words of the preamble that give the whole law its ultimate authority: ¡°We the People.¡± Amar elucidates the popular understanding of the document rather than the lawyers¡¯ version¡ªthe Constitution that, in his words, was ¡°[o]rdained in the name of the American people [and] repeatedly amended by them and for them.¡±

Amar tells his story in 12 chapters. The first is about the preamble, the brief introduction that speaks of forming ¡°a more perfect Union,¡± and of establishing ¡°this Constitution for the United States of America.¡± The last is on the latest amendments, like giving 18-year-olds the right to vote. In a postscript, he summarizes his overall take on the appropriate understanding of the Constitution so succinctly that readers may wish to start there in order to get a handle on the entire work.

He emphasizes the debates by the 13 states about the law¡¯s original adoption, known as ratification, and the debates about subsequent constitutional developments. Chiding historians who focus exclusively on the founding period, Amar claims that Americans look to the founding ¡°with reverence rather than revulsion¡± largely because of how later events, namely the abolition of slavery and the extension of equal rights to blacks and women, have led them to read the founders¡¯ Constitution.

To Amar, that law ¡°was more democratic, more slavocratic, and more geostrategically inspired than is generally recognized,¡± and amendments to it ¡°deepened the document¡¯s democratic and geostrategic dimensions while eventually reversing its slavocratic tilt.¡± By democratic, he means that the Constitution supported popular rule by lessening restrictions on who was allowed to vote and to hold office. By slavocratic, Amar means that the Constitution contained important concessions to the Southern states¡¯ interest in slavery. And by geostrategic, he means that the Constitution reflected a continental rather than a local outlook, particularly in the scope of power it gave to Congress and in its creation of a single executive.

Amar seeks to present ¡°a comprehensive account of America¡¯s Constitution, introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to that text.¡± He claims, correctly, I believe, that ¡°virtually nothing else in print aims to do this.¡± His writing about the Constitution¡¯s seven original articles as well as its 27 amendments reveals a fuller picture of American history than a standard constitutional law course does. America¡¯s Constitution shows how the framers created a structure of government that, with its separation of powers, secured political freedom, and how constitutional amendments have improved on the original work. While I will take issue with some of Amar¡¯s arguments about the original Constitution and its relation to the Civil War and the Reconstruction Amendments, his book is splendid. I recommend it for anyone interested in a detailed and accurate account of the framing and subsequent development of every part of our fundamental law.

AMAR'S DISCUSSION OF THE ORIGINAL CONSTITUTION'S BOOKENDS, that is, the preamble and the final article about how the states had to ratify the document, can be summarized in five points, which I will respond to in turn:

1. Amar contends that the ratification of the Constitution was a ¡°breathtakingly novel¡± form of ¡°democratic self-government,¡± because of the extent of popular participation. The states relied on popular consent to choose the people who decided whether to ratify the document. Neither ancient democratic governments nor contemporary constitutional monarchies had been founded in such an inclusive fashion. Not even the Declaration of Independence was secured by a similar popular vote, and, apart from the basic laws of Massachusetts and New Hampshire, none of the 11 revolutionary state constitutions were presented to the people for their consent.

To my mind, however, the preamble to the Constitution is not a statement about democratic government. Rather, it reflects a new form of federalism and the view of the 17th-century British philosopher John Locke, echoed in the Declaration of Independence, that the people have the ¡°supreme¡± power to alter or abolish government. Amar interprets the preamble as a statement about democratic government because of the discussion at the Constitutional Convention about the mode of ratification. But that discussion concerned only the creation of a new government, not its daily operation.

James Madison, the ¡°father of the Constitution,¡± argued persuasively that popular ratification of the law was necessary to confirm its supremacy over any subsequently passed act of a state legislature. Later on, the convention, aware that Rhode Island¡¯s delegates were absent, decided that nine states would su¡Üce for the Constitution¡¯s ratification. The strong nationalist from New York, Alexander Hamilton, at the federal convention, and later Madison, in his writings in The Federalist Papers, justified this departure from the unanimous consent of the state legislatures requirement in the Articles of Confederation by referring to the people¡¯s ultimate power to place and displace government. Extraordinary as this power of displacement is, however, it is a pre-political power that does not indicate who has the right to vote or to hold office, and is therefore different from democratic self-government.

2. This form of consent by the people, Amar says, ¡°broke new ground by establishing that the people¡¯s right to alter government did not require proof of past tyranny.¡± Amar sees a contrast here with the Declaration of Independence, which he reads to justify popular action only against tyranny.

I doubt that the Declaration¡¯s argument is limited to popular action against tyranny, however. Amar concedes that, ¡°the very act of constitution amounted to a mass secession from the old, confederated united states.¡± In my view, the shift from the Articles of Confederation, adopted in 1781, to the Constitution adopted seven years later was consistent with the Declaration of Independence, which placed the power to alter or abolish government in order ¡°to secure these rights¡± in the hands of the people. The people have the ultimate authority to secure their rights with effective government, whether the rights are endangered by tyranny, weak government, or any other cause.

3. Amar notes that the framers were practicing realpolitik in two ways. By having the Constitution take effect after being ratified by just 9 of the 13 state conventions, the framers required those states to violate the Articles of Confederation, which required the states¡¯ unanimous consent for amendments. In addition, by having ratification occur in state conventions rather than in legislatures, the framers avoided letting members of legislatures resist transferring any of their power to a central Congress: ¡°Though ordinary citizens might happily authorize the transfer of power from one set of their agents (state legislators) to another set (federal officials), self-interested statelawmakers themselves were apt to view this transfer as a demotion and resist it accordingly.¡±

If the Lockean argument underlies the founders¡¯ use of ¡°We the People¡± and their chosen mode of ratification, though, it explains Amar¡¯s views about realpolitik as well: Considerations of expediency justify constitutional changes by and for the people. Locke regarded the people¡¯s power as available to be exercised in exceptional circumstances.

4. Amar observes that the Anti-Federalists objected strongly to the phrase, ¡°We the People.¡± They much preferred ¡°We the states,¡± because they wanted to prevent the establishment of a consolidated government. The Federalists, meanwhile, defended the Constitution¡¯s Supremacy Clause (¡°This Constitution. . . . shall be the supreme Law of the Land¡±), while denying that adoption of the Constitution would annihilate the states.

In fact, the Anti-Federalists¡¯ objection to ¡°We the People¡± reflected their opposition to the extensiveness of the powers (of taxation, commerce, and war) that were given to the federal government. They favored the ¡°small republic.¡± While Amar, with the Federalists, favors an extensive view of the commerce power and the congressional power to assure civil rights under the Fourteenth Amendment, the life of the Constitution includes an ongoing ¡°dialog¡± between the Federalist and the Anti-Federalist conceptions of republican government.

The Anti-Federalist conception was dominant during eras of ¡°dual federalism¡± when the federal government and state governments were regarded as co-equal, from 1895 to 1936 and from 1976 to 1985; and the Rehnquist Court has followed that conception since 1995. The Federalist conception was dominant during the New Deal and afterward from 1937 to 1976, and briefly from 1985 to 1995. Amar presents a decidedly nationalist perspective that overlooks this dialogue.

5. Amar claims that final ratification of the Constitution in June 1788 shifted sovereignty from individual states to a unified ¡°continental people.¡± Amar notes that it was unclear whether states could secede under the Articles of Confederation. The government under the Articles consisted of a unicameral Congress in which each state had one vote, the state legislatures had the power to recall their congressional delegates, and resolutions by Congress for the raising of an army and money, that is, requisitions, relied on the state governments for their implementation. But under the new Constitution, Congress had complete power to raise men and money, and the states were forbidden to secede.

The debate over the boundary between state and federal power is related to the question of sovereignty under the Constitution. Amar¡¯s contention that American government went from the sovereignty of the people in the several states to the sovereignty of one united people overstates the shift from the Articles of Confederation to the Constitution. His view of Abraham Lincoln illustrates the overstatement.

AMAR APPRECIATES LINCOLN'S STATESMANSHIP but nonetheless thinks that his Gettysburg Address erred in asserting that the Union dated from 1776. Lincoln was arguing for the primacy of the Union to reinforce his argument against the legality of secession. Amar agrees with Lincoln, but cites the language of the Declaration and the Articles of Confederation¡ª¡°Each state retains its sovereignty, freedom and independence. . .¡±¡ªto show that the states were sovereign until they ratified the Constitution.

This difference is important: While Amar agrees with Lincoln that the Constitution did not give the states the right to secede from the Union, Lincoln¡¯s argument, which relies on the primacy and priority of the Union, is stronger than Amar¡¯s, which relies on mere ratification. Under Amar¡¯s logic, states¡¯ rights proponents could accept the Constitution and its supremacy but still argue that, as parties to the compact, the states have the final say on the meaning of the Constitution. (Justice Clarence Thomas used that argument to support state-based term limits on Congress.)

To defend Lincoln further: Amar makes a few omissions. He does not take note of the ¡°one people¡± language¡ª¡°When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another. . .¡±¡ªin the Declaration of Independence, famously adopted on the Fourth of July in 1776. He also omits that independent nations have the right to make war and peace individually, and that the United States always intended to do that as one nation, even before it had adopted the Constitution. Next, while the Articles of Confederation did leave the bulk of political power in the states, the article that Amar relies on to show state sovereignty asserts only that Congress shall have no implied powers; Congress did, however, have express powers over war and peace, which compromised state sovereignty. Oddly, Amar neglects to quote all of Article II: ¡°Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by the Confederation expressly delegated to the United States, in Congress assembled.¡± Under the Articles of Confederation, then, sovereignty is understood, like jurisdiction and right, as divisible: As powerful as the states were under the Articles, they were not sovereign or independent.

Even after the Constitution was ratified, the issue of sovereignty, particularly the interplay between federal and state authority, remained cloudy. The Constitution provided for a much stronger federal government, but the election and apportionment of the Senate, with small as well as large states represented by two senators, reflected the importance of the states.

The issue of how the Constitution apportioned authority to the states and the federal government leads to Amar¡¯s criticism of the founders for their treatment of slavery. The Constitution never uses the words ¡°slavery¡± or ¡°slaves,¡± but the institution is tacitly acknowledged in three places: in Article I, Section 2, Clause 3 (the apportionment rule, counting all free persons for the purpose of allocating taxes and representation in the government and ¡°three fifths of all other Persons¡±); in Article I, Section 9, Clause 1 (the slave importation clause, saying that ¡°Importation of such Persons¡± wouldn¡¯t be prohibited before 1808); and in Article IV, Section 2, Clause 3 (the fugitive slave clause, saying that a ¡°Person held to Service or Labor¡± in a slave state who escapes to a free state must be returned).

Amar focuses his criticism on the apportionment rule, noting that it affected presidential and congressional elections. Slaves were the only form of property counted, so the rule, rather than being just a statement of principle, reflected the Southern states¡¯ interest in slavery. Direct taxation was joined to apportionment to minimize the significance of slaves in the determination of a state¡¯s federal voting power. For the South, this was an instance of the bad being tied to the good¡ªthe good was the boost to the free population count by the addition of three-fifths of the slave population; the bad was the increase of taxes due by that same proportion.

Amar sees this as an unprecedented benefit to slave states. He points out that in 1787 ¡°no slave state counted slaves as preferred property for state apportionment.¡± He then provides his explanation for this apportionment rule: Southerners feared that they would otherwise be outvoted on what everyone knew was the true division in the country¡ªNorth versus South.

The North had a significant population advantage and, for the North and South to agree upon a Constitution, they had to approach sectional parity. The South knew that it couldn¡¯t get away with counting each slave as a full voter for purposes of representation, but if it were allowed to count each slave as three-fifths, it could achieve something like parity.

Amar¡¯s criticism of the founders is revealed in this remark about the Thirteenth Amendment: ¡°A structurally proslavery Constitution became, in a flash, stunningly antislavery.¡± To those who see continuity from the founders to the present, Amar says, ¡°What the bare text does not show is the jagged gash between Amendments Twelve and Thirteen¡ªa gash reflecting the fact that the Founders¡¯ Constitution failed in 1861¨C65. The system almost died, and more than half a million people did die. Without these deaths, the Thirteenth Amendment¡¯s new birth of freedom could never have occurred as it did.¡±

STRONG LANGUAGE, AND COMING AFTER SO MUCH PRAISE for the founders! Is there a reasonable defense of the founders and their Constitution?

From Lincoln¡¯s example, we can appreciate the difference between tolerating slavery out of necessity and judging it to be morally sound or even neutral. Lincoln¡¯s great achievement, reflected first in his speeches as a candidate to lead the nation and then in his election, was to change public sentiment in America toward the view that slavery was wrong and therefore should be put ¡°in the course of ultimate extinction.¡±

Lincoln believed that the founders accepted slavery only out of necessity. To illustrate this, consider the significance of their omitting any reference to slavery by name in the Constitution. Remember the provision whereby slave importation wouldn¡¯t be prohibited before 1808, which can be read to mean that slavery could then be abolished. As for apportionment, Amar¡¯s own discussion of the framers¡¯ deliberations shows that Southerners needed a means to approach sectional parity in order to protect their slave property. The shift from the state-centered Articles of Confederation to a genuine government of the Union necessitated parity in some form because the new federal government would have complete powers over taxation, commerce among the states, and war; it would not have to rely on state requisitions anymore. Also, the ¡°three-fifths rule¡± had been proposed in 1783 as a more accurate way (over land valuation) to allocate tax liabilities among the states.

How significant was the three-fifths rule, in any case? Lincoln¡¯s electoral victory in 1860 meant that, notwithstanding the numerical ¡°bonus¡± that the three-fifths rule gave the Southern states, the country elected a president who ran on a platform of moral opposition to slavery. His platform, beginning in 1854, included ¡°restoring the Missouri Compromise,¡± with its prohibition on slavery in the territories north of 36 degrees 30 minutes north latitude. This meant a federal commitment to keep slavery out of the Kansas and Nebraska territories, despite the Supreme Court¡¯s Dred Scott decision in 1857, which invalidated the Missouri Compromise.

Amar points out that in the 1860 election, Lincoln¡¯s Republican Party did not win a clear majority of seats in either the House or the Senate. He notes, ¡°Had the Slave Power simply acquiesced in the election of 1860, nothing like immediate emancipation could ever have occurred in the 1860s.¡± That is, had the Southern states accepted Lincoln¡¯s election, he would not soon have convinced the Northern states to challenge slavery.

But the rebellion was not merely a mistimed adventure. The Southern states rebelled after Lincoln¡¯s inauguration because they agreed with him that ¡°this government cannot endure, permanently half slave and half free,¡± and that his election had put slavery on the path to extinction. They were unwilling to surrender their way of life, even for a gradual emancipation of slaves and for some form of compensation for slaves who were freed. Slavery in the Southern states posed an intractable problem for the American Union. There was no clear or quick way to eliminate the flaw in the American polity.

With this in mind, I would ask Akhil Reed Amar to reconsider the relationship between the founders¡¯ Constitution and the new birth of freedom that the Civil War and Reconstruction produced. As I read the history that he recounts, the latter did not break with the former so much as it brought the practice of American government closer to the country¡¯s founding principles.

Lincoln said in his Dred Scott speech that the authors of the Declaration referred to equality in rights, not in every respect, and that they knew they could not bring practice into line with the principle right away. But they set the standard, and every change in American government that Amar celebrates has come about as a result of an appeal to ¡°The unanimous Declaration of the thirteen united States of America.¡± The framers and ratifiers of the Constitution and the authors of the Reconstruction Amendments did their work in light of the Declaration¡¯s principles.

Murray Dry, a professor at Middlebury College, teaches courses in American constitutional law and political philosophy.

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