How Democratic Is the Constitution

1.

If it weren’t for the law professors who teach and write constitutional history we wouldn’t have much constitutional history being written or taught in the academy these days. Most universities have long since given up teaching undergraduate courses in American constitutional history, and most of those few remaining professors who do teach it are retiring and not being replaced with constitutional scholars. Although the general public still seems very interested in constitutional matters—as the attention being paid to the Supreme Court appointments suggests—most members of history faculties today prefer popular cultural history to what some dead white males in the past did with the Constitution. Apparently this lack of academic interest in the Constitution seemed dire enough to Congress that it recently demanded that all educational institutions receiving federal funds do something to commemorate Constitution Day on September 17. A congressional mandate is not the best way to get the academy interested in the Constitution.

Fortunately there are all those law professors still writing constitutional history, the two books under review being recent examples. Akhil Reed Amar, a professor at Yale Law School, is one of the busiest and the most knowledgeable of constitutional scholars. Amar wrote an important study, The Bill of Rights: Creation and Reconstruction, in 1998. In it he argued that the original Bill of Rights passed in 1791 was concerned less with protecting individual liberties and minority rights and more with imposing limitations on the federal government, as opposed to state governments. Only with the Fourteenth Amendment, passed during Reconstruction, which among other things limited the states’ ability to deprive their citizens of their rights, did the Bill of Rights take on its modern significance as a protector of individual liberties against the power of the majority; only then was the way prepared for the judicial “incorporation” of some of the first ten amendments into the Constitution as limitations on state legislative majorities. Now Amar has applied some of the same sort of analytic skill to the Constitution itself.

Since America’s Constitution has fewer than eight thousand words, it is, in addition to being the oldest national written constitution in the world, probably the shortest—shorter than our fifty state constitutions and certainly shorter than the proposed constitution for the European Union that was recently defeated by French and Dutch voters. Yet other than perhaps the Bible or the Koran, it is hard to think of any single document—“one of the most important texts in world history,” says Amar—that has been more fully interpreted, analyzed, parsed, and dissected than America’s Constitution. Consequently, over the past two hundred years we have accumulated a huge body of textual exegeses and legal expositions of the Constitution; there is nothing like this accumulative constitutional scholarship anywhere else in the world. And it is clear that as long as the Republic and its Constitution endure, this constitutional interpretation and commentary will never cease.

Amar writes that he hopes readers who join him “on an interpretative journey through the document, from its first words to its last clause,” will gain a better understanding of not only what the Constitution says but how and why it says what it says. By writing what he terms “a biography” of the Constitution, Amar believes that readers will be introduced “both to the legal text (and its consequences) and to the political deeds that gave rise to that text.” Surprisingly, he says, virtually nothing in print attempts to do this. There are thousands of specialized studies on various aspects of the Constitution, but none that tries “to encompass the constitutional system as a whole.” By bringing the disciplines of law, history, and political science to bear on the document, his book is an attempt to do just that.

Amar admits that his is “an opinionated biography of the document” in that he pays special attention to those parts of it that he believes are “particularly significant or generally misunderstood.” But he is often modest and tentative in his opinions, and in his extensive endnotes he offers many other scholars’ contrasting interpretations of the document. The result is an extraordinarily full, rich, and fair-minded interpretation of the text of the Constitution that ought to be read by anyone interested in the document.

Although Amar calls himself “a constitutional textualist,” he is certainly not a textualist in the manner of Justice Antonin Scalia. Justice Scalia believes that the text of the Constitution means what it says, or what he thinks it says, not what its framers intended it to mean, whatever that might be, since there were many framers and many clashing motives. By focusing exclusively on the text Justice Scalia avoids the difficulties of investigating the historical origins of the document. By contrast, Amar is centrally concerned with understanding the text of the Constitution in the context not only of its framers’ intentions but of its subsequent history as well. That he calls his book “a biography” of the Constitution itself suggests a living and growing document, not one with a fixed textual meaning at birth. Still, like nearly all jurists, liberal as well as conservative, he inevitably begins with the text of the Constitution and works outward from it. In fact, he has some interesting things to say about the eighteenth-century meaning of “commerce” that might make Justice Scalia take notice. Today’s Supreme Court has tended to interpret commerce as applicable only to economic transactions. But, says Amar,

“commerce” also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.

His historical discussion of the opening words of the Constitution, “We the People…do ordain and establish this Constitution,” sets the tone for much that follows. Amar rightly contends that in 1787 “this was the most democratic deed the world had ever seen.” Amar criticizes those today who miss the democratic character of the Constitution and try to pass the framers off either as rich white elitists or as republican opponents of democracy. Whatever the aristocratic intentions of the founders may have been (some of them, including James Madison, the so-called “father of the Constitution,” were certainly trying to counter what they regarded as democratic excesses in the states), Amar correctly shows that they never doubted that the people were the source of all authority and that sovereignty, or final, supreme lawmaking power, belonged with them. Those who indict the framers for not creating a more democratic and egalitarian constitution—one more like the one we have today—are committing the grossest kind of anachronism. “True,” says Amar, “the act of constitution fell far short of universal suffrage as modern Americans understand the idea, but where had anything close to universal suffrage ever existed prior to 1787?”

Within the setting of its time the Constitution was more democratic than any previous document of the kind; “in fact,” writes Amar, “the Constitution infused some form of democracy into each of its seven main Articles.” Article I prescribed no property qualifications for voting or service in the government and promised that all members of the new House of Representatives would be elected directly by the people. Even senators had no prescribed property qualifications for service, “thereby breaking with the membership practices of every state upper house in America.” Moreover, representation in the House would be adjusted every ten years in accordance with a census. There would be no English rotten boroughs.

Article I also prohibited all titles of nobility, in some respects the most radical break with the Old World. Unlike the monarchies of Europe, declarations of war belonged to the legislature, not the executive, a requirement not followed in practice during the past half-century. Articles II and III provided that the presidency and federal judgeships would be open to men of merit regardless of wealth or lineage. At the same time the Constitution gave common citizens a part to play in government:

Juries of ordinary people would counterbalance professional judges in the judicial branch, as militias of ordinary people would check professional armies in the executive branch.

Article IV guaranteed to each state a “Republican Form of Government”—this at a time when much of the world was made up of monarchies. Article V provided means for the people peacefully to revise and amend their Constitution—something previously unheard of. Article VI banned religious tests for federal officeholders, an extraordinary stipulation in a world that was still dominated by religious hierarchies. And Article VII specified how the new Constitution would be established and ratified by the people. Even the Bill of Rights began and ended with the people, an emphasis, Amar claims, whose full significance has eluded many modern-day interpreters. From the beginning amendments have worked to enlarge, not diminish, the electorate. If this is Whiggish history, he says, make the most of it.

The making of the Constitution itself was “breathtakingly novel.” With great skill Amar shows how the new Constitution differed substantially from the Articles of Confederation, America’s first national constitution. The Articles, which were adopted by the Continental Congress in 1777 but not finally ratified by all the states until 1781, were not an early version of the Constitution of 1787. They did not set up a government at all, but were a multilateral treaty among thirteen independent states, a “league of friendship” that in some ways resembled the present-day European Union. In setting the Articles aside and establishing an entirely new sort of federal government, Americans in 1787 did not have to show that the regime they were changing was tyrannical; all they had to do was demonstrate that it was outdated or imperfect. Americans even marveled at what they were achieving. “The people may change the constitutions whenever and however they please,” declared James Wilson of Pennsylvania, an intellectually important framer who Amar correctly believes has been much neglected.

Wilson was the founder most responsible for deflecting the powerful argument of the opponents of the Constitution that sovereignty—that final, supreme, and indivisible legal authority that William Blackstone said had to exist in every state—would inevitably end up being held by the federal government and create a consolidated system. The inability to divide sovereignty between the Parliament in London and the colonial assemblies had broken apart the British Empire. Now in 1787–1788 the issue of its indivisibility threatened to undermine support for the Constitution. While proponents of the Constitution tried to say that power would be divided between the federal government and the governments of the states, the Constitution’s opponents said that since sovereignty was indivisible it could not be divided. The supremacy clause in the Constitution would therefore inevitably lead to sovereignty being lodged in the national government, with the states eventually being reduced simply to laying out roads and measuring the height of fence posts.

Wilson came to the rescue of the Constitution with a brilliant argument that sovereignty, even final legal sovereignty, would not have to be divided after all; instead of being placed in any of the institutions of the federal or state governments, it would remain always with the people at large. Once grasped, this notion of sovereignty remaining with the people explained all of America’s radically new constitutional institutions and achievements—their federalism that allowed two legislatures to deal with the same matters, their constitution-making, which set them apart from ordinary lawmaking, their constitutional conventions distinguished from legislatures, their processes of popular constitutional ratification, and their conception that all governmental officials, even judges, were merely different agents of the people.

But they were also limited agents of the people: none of them or even all of them together, state and federal, fully embodied the sovereign people. Such an insight enabled Alexander Hamilton to observe caustically that “the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves.” This denial that the people could be eclipsed by their elected representatives, in the way the British people were eclipsed by the House of Commons, led eventually to the progressive reforms of ballot initiatives, recall of elected officials, and referenda—practices that we know all too well are flourishing today in many parts of the country.

Although Amar admits that fear of too much democracy in the states motivated some of the framers, he contends that it was “geostrategic considerations”—fear of foreign powers—that really lay behind the founders’ replacing the Articles with the Constitution. Madison’s Federalist No. 10, which dealt with the problems of democratic interest-group politics in the states, is, according to Amar, vastly overrated by present-day scholars. The earlier Federalist papers, especially Nos. 1–6 and 8–9, which dealt with the need for a more perfect union in a hostile world, were far more revealing of the framers’ motives. Indeed, in 1787–1788 those particular essays were reprinted much more often than any of the other Federalist papers.

Certainly concerns for a stronger union to stand up to the world were important in accounting for the making of the Constitution. But public arguments and rhetorical strategies are not necessarily fully revealing of actual motives. Compare the nature of the caustic rhetoric about democracy that delegates used in the secret Philadelphia Convention of 1787 with the praises of democracy several months later in the state conventions that ratified the Constitution. As Amar himself concedes, it would have been unwise for the Constitution’s supporters to emphasize how much the new Constitution, in Article I, Section 10, limited the powers of the states.

The framers needed arguments—geostrategic arguments—that did not require their listeners or readers “to disown their state legislatures.” Virginians did not want to hear that the Constitution would protect them from their own legislature; instead they wanted to hear that it would protect them from foreign nations and the other states. “Each state could tell itself that its sisters were the chief offenders, and everyone could blame tiny Rhode Island most of all,” Rhode Island being the only state not to send a delegation to the Philadelphia Convention. Since the framers had to sell their Constitution to the people in the states, they inevitably stressed its popular and democratic character. Amar has taken account of all this democratic rhetoric and made the most of it.

Despite his heavy emphasis on the democratic character of the Constitution, however, Amar does have one great exception—the presence of slavery which he claims infected the entire document. “Slavery was the original sin in the New World garden, and the Constitution did more to feed the serpent than to crush it.” Many of the Constitution’s clauses, says Amar, specially accommodated or actually strengthened slavery. He particularly emphasizes the clause that apportioned the direct taxes and representation of the states in the House by counting slaves as three fifths of free persons. Along with other clauses, including that in Article IV that obliged free states to send fugitive slaves back to slavery, this three-fifths clause, says Amar, made the Constitution a “proslavery” document. In this respect Amar has adopted the argument of Garry Wills in his recent book, “Negro President”: Jefferson and the Slave Power (2003). Both Wills and Amar contend that this three-fifths clause gave the Southern slave states added power not only in their representation in the House but also in the electoral college.

But this argument ignores the most plausible alternative at the time to three-fifths representation, which was five-fifths representation of the slaves. The fact that the slaves could not vote was irrelevant; neither could white women, children, and in most states in 1787 propertyless men, but they were still counted in determining the size of each state’s representation. In fact, in the Philadelphia Convention Madison proposed counting the slaves as five fifths in apportioning representation in the House. That, of course, would have given even greater strength to the slaveholding states both in the House and in the electoral college.

In the last book he wrote before his untimely death, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (2001), the distinguished historian Don E. Fehrenbacher offered a persuasive explanation of the origins and significance of the three-fifths clause. To rebut the “neo-Garrisonians,” as he called them, Fehrenbacher contended that the three-fifths ratio was simply a necessary compromise between the North and South. While it obviously assumed the legitimacy of Southern slavery, it had no specific racial meaning. It did not represent a perception of black slaves as three-fifths human. And it was not intended to denote the slave’s dual status as both person and property. Since counting the slaves as full persons for representation could be seen, and was seen at the time, as the most plausible alternative, the three-fifths ratio could even be regarded as advantageous for the free states. “Thus,” Fehrenbacher concluded,

characterization of the three-fifths clause as a bonus for slaveholders, resting as it does on mere assumption, is not intrinsically sounder than the view (held by Frederick Douglass, for instance) that it was a penalty on slaveholding. One side sees a bottle three-fifths full and the other, a bottle two-fifths empty.^*

Amar accuses Fehrenbacher of “inexplicably” conflating the slaves with free white women and children. Slaves, Amar contends, were considered to be property and thus their status was very different from the dependency of free women and children. American male voters, Amar says, could claim “with a straight face” to represent the interests of their mothers, sisters, wives, and children. “But,” he says, “masters did not as a rule claim to virtually represent the best interests of their slaves.” This doesn’t seem quite right. Nearly all the slaveholding planters claimed with apparent sincerity (no doubt absurdly in our eyes) to be ruling paternalistically over all their dependents—their wives, children, and slaves. Jefferson was not exceptional in calling his slaves his “family.” In this particular instance, as his comment about the voters’ “straight face” suggests, Amar doesn’t seem to be able to shake off his twenty-first-century beliefs and take that very different past seriously.

Generally, however, Amar avoids this kind of anachronism and describes the historical setting of the eighteenth-century Constitution very accurately. Because his explication of the Constitution resembles more a concordance or other kind of reference work, to be dipped in here and there rather than read cover to cover, it should not have been called “a biography.” Yet as a reference book, it is superb. It is, so far as I know, the fullest and most reliable explanation of the written Constitution that we have. Amar seems to have read every law review article and every history book pertaining to the Constitution. His notes alone cover 125 pages. Even so he realizes that by explicating the words of the document he has not dealt with all of American constitutionalism by any means. Whether in Supreme Court case law, in thousands of statutes, in American customs, religious and secular, or in philosophical arguments, Amar suggests, there is an unwritten Constitution that may be more important than the written one. He hints at the end that the unwritten Constitution may be the subject of another book.

2.

Calvin H. Johnson, professor of law at the University of Texas Law School, like Amar and many other law professors, is fascinated by the making of the Constitution. But unlike Amar, his purpose is much more obvious. By pinpointing the motives of the framers, Johnson believes he will be in a position to “give the Constitution its purposive meaning.” And that meaning, he says, does not lie in the text of the Constitution or in anything said by the opponents of the Constitution (the Anti-Federalists, as they were called). The Constitution, Johnson argues, was patently and completely a Federalist document, “a radically nationalist vector compellingly explained by the righteous anger of the Founders at the misdeeds of the states.”

So, according to Johnson, anyone wanting to base American jurisprudence on “the original intent of the document” must confront the historical fact that the Constitution was very nationalistic in its origins and very much opposed to states’ rights. But before he can establish his point he has to knock down what be believes is the prevailing contrary interpretation. He says at the outset of his book that “it is common to see the Constitution as described as written to limit the federal government and to protect states rights.”

This is news to me, and not at all credible. I know of no interpretation of the origins of the Constitution that has ever claimed such a thing. From his citations it is obvious what Johnson has done. He has taken the interpretation of the Constitution that sees it as having originated in the desire of Madison and other Federalists to use the new expanded republic as a means of limiting majoritarian factionalism in the states and of protecting minority rights in the states and has mistakenly applied it to the federal government. The Federalists were certainly not, as he thinks, trying to limit the national government’s power and protect states’ rights; instead, they were trying to build up the national government at the expense of the states, and no historian of the Constitution doubts that. That Johnson could garble the historical literature in this manner tends to undermine his authority at the beginning and to cast doubt on what he subsequently says, even when he is correct.

He is undoubtedly correct in stressing the anger of the Federalists, and indeed, the anger of much of the politically aware nation, at the weaknesses of the Congress under the Articles of Confederation. In fact, it was that general anger that made even later opponents of the Constitution casually accept the meeting in Philadelphia in 1787; they thought it was only going to add a much-needed taxing power to the Articles and were thus stunned at what emerged from the convention. Since the Confederation Congress lacked the authority to tax, it had to rely on requisitioning the states for financial contributions, which the states were refusing to supply. Johnson concludes that it was “the righteous anger at the wickedness of the states” (his title, which he repeats more than once in his book) that accounts for the revolution in government that the Federalists accomplished in 1787. Other motives of the framers, he writes, such as the need for Congress to regulate trade, suppress insurrections, umpire territorial disputes among the states, or allow creditors to get paid, “were not significant contributory causes to the adoption of the Constitution.”

Johnson is at pains to point out that this monocausal righteous anger was short-lived. The “Constitutional movement,” he claims, really came to an end in 1796 with the adoption of the Eleventh Amendment to the Constitution. This amendment, he contends, granted immunity to the states from suits by creditors from the Revolutionary War and “allowed the states to refuse to pay their just war debts”—thus undermining the very reason for the formation of the Constitution in the first place. Since the fundamental motive for creating the Constitution collapsed so quickly, Johnson concludes that there can be no “eternal verities” in trying to understand “the original intent” of the Constitution.

Like many historians of the origins of the Constitution, Johnson gives much attention to Madison and his motives. He correctly shows that Madison was the prime mover behind the Virginia plan that become the working model for the Philadelphia Convention. Madison was angry not only at the states’ undermining of the national authority but at the state legislatures’ abuses of the rights of minorities, especially the rights of creditors. In response, he worked out his plan of “a systematic change” in the federal system that involved creating a new extended republic with a national government composed of a congress, a president, and a supreme court that could directly affect individuals.

Although Madison was a workaday politician trying to find immediate justifications for what he was doing, he did set forth a philosophical theory of the extended republic in support of his “political cause.” Johnson explains how Madison and the other Federalists shifted the foundations of their system from the states to the people (but Johnson fails to recognize that Madison’s motives went beyond any righteous anger with the states’ unwillingness to tax themselves). He describes the argument in the Philadelphia Convention over representation and Madison’s proposal that Congress have a veto power over all state laws. In all his middle chapters Johnson offers a very conventional account of the making of the Constitution without adding anything new. He does expose, however, his naively cynical approach to the past by remarking that “the contest over ratification was largely a contest of the insincere on both sides,” a struggle “not seriously over ideas, but over power.” This assumption that ideas and power are mutually exclusive reveals perhaps better than anything else Johnson’s failure to understand human behavior. If the struggle over the Constitution in 1787 and 1788 was not seriously over ideas, then no political struggle ever has been.

After the Constitution was ratified by the states, the Anti-Federalist opposition, says Johnson, “withered and disappeared.” Indeed, so quickly did the opposition to the Constitution dry up that Johnson believes that the Federalists “could have effected even more radical a change and still garnered majority support.”

These are the kinds of statements that make a historian wince; they reveal a limited knowledge of the peculiar circumstances of the time. The reason the Anti-Federalist opposition seemed to disappear was that by 1788 there was no plausible federal alternative to the proposed new government. The Articles were essentially defunct. Since most people did not want to destroy the Union, they were willing to give the new Constitution a chance, especially since amendments were both provided for and promised. Even devout Anti-Federalists like Melancthon Smith of New York eventually voted for the Constitution because, as Richard Henry Lee said, it was “this or nothing.” It does not follow from these circumstances, however, that the country would have accepted, as Johnson suggests, an even stronger federal government. Indeed, the vote on the Constitution was very close as it was; if there had been a modern poll taken in 1787–1788, most people in the country probably would have opposed it. And Anti-Federalism didn’t really disappear; it adapted to the new situation and became the backbone of the emerging Jeffersonian Republican party.

By 1796 the constitutional movement, says Johnson, was over, and the nation’s leaders had split into two parties, the Federalists led by Washington and Hamilton and the Republicans led by Jefferson and Madison. In describing the emergence of these two parties, Johnson exposes what might be called “the Madison problem.” In the 1780s Madison was a fervent nationalist who feared the states and their vicious tyrannical majorities and wanted to subject them to the control of the central government. This is the Madison who has become the “Father of the Constitution.” By contrast there is the Madison of the 1790s—the strict constructionist and advocate of states’ rights who was co-founder of the Democratic-Republican Party; he feared the national government and its monarchical tendencies and trusted the popular majorities in the states. By 1798 he was even willing to invoke the right of the states to judge the constitutionality of federal acts and to interpose themselves between the citizens and the unconstitutional actions of the central government. For the early Madison popular majorities within states were the source of the problem; for the later Madison these popular majorities in the states became a remedy for the problem.

Explaining how we get from one Madison to another has not been easy, and historians have been much confused by what Johnson calls Madison’s “turning.” Johnson certainly has no explanation for it other than Madison’s loyalty to his friend Jefferson. Johnson in fact reduces the party struggle of the 1790s to personal antagonisms and connections. “Jefferson decided by 1792 that he hated Hamilton, his finances, and his bank.” And Madison necessarily had to follow along, subservient as he was to Jefferson. “While Jefferson was in Paris, Madison could be the entrepreneur who built the Constitution, but when Jefferson returned, Madison dropped back into a role as loyal lieutenant.” With its caricature of Madison, this is the sort of crude historical analysis that tends to bring into question everything Johnson says, for Madison had his own strong and carefully argued positions that were different from those of Jefferson.

If one wants to find out the meaning of the Founders’ Constitution, Amar’s book is more useful than Johnson’s. His case for the fundamentally popular and democratic origins of the Constitution in the setting of its time gives his book a special distinction as a work of history.