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Saturday, October 13, 2007

Rising Star Amar

Recently finished this year's con law "It Book," Akhil Reed Amar's America's Constitution: A Biography. I went in skeptical. Most of what I had known about Amar was his argument that the Article V amending process is "non-exclusivist," i.e., popular sovereignty trumps strict textual procedure, making possible alternative methods such as a convention called by Congress rather than the states, or even a national referendum. Still not persuaded. Amar relies heavily on James Wilson here--extrapolated--but his hurdles are high and a single founder (no matter how great, and Wilson was that) won't clear them. Can you imagine a Congress proposing such an option AND a corresponding Supreme Court accepting such an amendment as legitimate? I can't.

Article V aside, however, the rest of the book was an exuberant surprise. Amar's thesis is that "the Founders' Constitution was more democratic, more slavocratic, and more geostrategically inspired than is generally recognized, and that subsequent amendments deepened the document's democratic and geostrategic dimensions while eventually reversing its slavocratic tilt" (471). In other words, the founders of 1787 gave us a Jacksonian constitution, leading, not so surprisingly, to a Jacksonian early republic. Amar's major target is the classic Beardian view that Philadelphia was a reactionary forum for property-owner gripes, leading to late-19th century social Darwinism. Sheer proximity of cause and effect adds to the plausibility of Amar's reading contra Beard's. In comparing the founders' work to preexisting state cons, English law, and the Articles of Confederation, Amar draws attention to oft-ignored democratizing features of the constitution: fixed and frequent elections, the ban on titles of nobility, new governmental transparency, emphasis on juries, and even relaxation of property-based suffrage for ratification itself. Before reading Amar, it had never occurred to me that age restrictions for office were designed primarily to curtail the ascendance of "favorite sons."

Amar also offers a convincing explanation of the electoral college as a device intended to protect slave states, since 3/5 apportionment and state-based accounting of electoral votes would give the South a disproportionate advantage in presidential elections, a scheme that played out in the early republic's resultant leadership. Practicality played a role too, since the EC allowed the new national government to outsource electoral rules and mechanisms to the states rather than creating a contentious national system. But Amar shows pretty conclusively that the states most opposed to direct election were also those most attached to slavery (e.g., South Carolina).

There's a lot here, and Amar is especially strong on the Civil War amendments and the Progressive era reforms, giving a critique of Bruce Ackerman's recent writing. Amar also offers a scathing attack on the Rehnquist court's 11th amendment "state sovereign immunity" jurisprudence. I won't give you the full summary of the book or my reservations about it (he dodges the big issues on legislative-executive conflicts). Given the influence it's sure to exert on the next generation of constitutional scholars, you might want to give it your own read.


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