December 2005
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Day December 2, 2005

Books #55 and #56: Akhil Amar, America’s Constitution: A Biography and Gerald Durrell, A Zoo In My Luggage

I don’t have much to say about Durrell’s “A Zoo in My Luggage”, other than to note that it was good fun and relaxing Thanksgiving weekend reading. Basically, a “snack book”: readable in an afternoon while it’s raining out.

Much of my reading time lately has been devoted to Akhil Reed Amar’s “America’s Constitution : A Biography”, an amazing work which analyzes the Constitution and amendments section-by-section, discussing the historical origins, political arguments surrounding, and subsequent change in each provision and rule. Unlike most treatises on American constitutional law, Amar’s book focuses little attention on Supreme Court decisions or the arguments of legal theorists, instead focusing on the text and events surrounding it. To some extent, this makes the outlook “textualist,” but this does not equate necessarily to “originalist” or other modern argumentative stance.

Amar’s conclusions are perhaps a bit unorthodox but are well supported by his historical analysis. Amar portrays the Founder’s constitution (i.e., the Philadelphia text plus the first twelve amendments) as more democratic and populist than usually described, but also more intentionally accomodating of slavery than we’d like to admit in retrospect. Some of Amar’s foci in the book are fairly unique: the first chapter spends 50+ pages on the Preamble, which is rarely remarked upon today in either court cases or by scholars. Amar notes that while we tend to view the Preamble today in much the same was as a book’s introduction, or worse, a publisher’s jacket blurb, the Founding generation tended to treat the Preamble as a substantive part of the document. The Marshall Court draws upon the Preamble in Marbury, Martin v. Hunter’s Lessee, and McCullough, all cornerstone cases in American constitutional law. Amar’s reading of the Preamble (and Article VII) is that the “Philadelphia” Constitution begins and ends with expressions of democracy and popular sovereignty, centering sovereign power in the “people” rather than the government itself and creating the rules for “ordaining and establishing” self-government. This is, in many ways, the most stirring contribution Amar makes in the book, but it’s certainly not the only one.

His non-economic reading of the Commerce Clause deserves discussion among scholars, providing as it does an antidote to the current narrow discussions which seem to revolve around specific conceptions of economic activity. And his discussion of the Article III courts and their relative roles through time definitely points to a more complex picture surrounding the question of judicial review than many would like to admit.

In summary, Amar’s book stimulates a great deal of rethinking and is well worth reading for anyone interested in getting beyond the current stereotypical arguments between “liberal” and “conservative” views of constitutional law. Our development as a people and nation is far richer than those categories and our current disputes are capable of encompassing, and it’s important to remember that.