Gregory Ablavsky (Stanford Law School) has posted Akhil Amar's Unusable Past (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay reviews Akhil Amar's recent constitutional history of the early United States, The Words That Made Us. In this volume, Amar seeks to offer a "fresh story of America" that provides a "usable past." I argue that the book fails on both fronts. On the contrary, much of what Amar peddles is very old, ignoring generations’ worth of scholarship while parroting a centuries-old nationalist constitutional hagiography. In particular, he believes that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. His effort to defend them and the Constitution from critics paints him into difficult corners, including endorsing some dubious exculpatory narratives around the exclusion of women, Black people, and Native nations in early America.
One way forward toward a more inclusive, more usable constitutional history, I argue, is in the concept of a "constitutional conversation" that Amar uses to frame his book. In Amar's hands, this conversation becomes a narrow reconstruction of debates among what he calls the "Big Six" Founders. But for a generation, historians and scholars, including many in law schools, have offered a broader vision of the constitutional conversation highlighting how non-elite people, including subordinated groups, accessed and shaped constitutional law. But the work of synthesizing these accounts in a broader constitutional history has only just begun. This work, I argue, will offer both a fuller account of the constitutional conversation and a more usable past for a nation increasingly recognizing that it has always been a diverse and fractious place.
And from the text:
[Mercy Otis] Warren was prominent even among Amar’s Big Six [Adams, Franklin, Hamilton, Jefferson, Madison, & Washington]: many of them corresponded with and praised her, and she argued with John Adams over the form of the American republic and the proper interpretation of the American Revolution. Warren’s Anti-Federalist pamphlet was widely reprinted in newspapers, with New York Anti-Federalists distributing 1700 copies in the lead-up to the vote for ratification delegates. Her biographer calls the pamphlet “an Antifederalist classic,” while a leading compendium of Anti-Federalist writings describes it as a “more philosophical” work that “penetrates deeper” than other Anti-Federalist critiques. Perhaps Amar disagrees with these views. But if he is going to assert women’s “quiescence” on the Constitution, he owes his readers more than a conclusory sentence in the back of the book dismissing the best-known counterexample.
And from Warren in her Observations on the new Constitution, and on the foederal and state conventions. By a Columbian patriot. ; Sic transit gloria Americana:
There is no provision by a bill of rights to guard [a]gainst the dangerous encroachments of power in too many instances to be named: But I cannot pass over in silence the insecurity in which we are left with regard to warrants unsupported by evidence—the daring experiment of grant|ing writs of assistance in a former arbitrary administration is not yet forgotten in the Massachusetts; nor can we be so ungrateful to the memory of the patriots who counteracted their operation, as so soon after their manly exertions to save us from such a detestable instrument of arbitrary pow|er, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure. We are told by a gentlemen of too much virtue and real probity to suspect he has a design to deceive— "that the whole constitution is a declaration of rights,"— but mankind must think for themselves, and to many ve|ry judicious and discerning characters, the whole constitution, with very few exceptions, appears a perversion of the rights of particular states, and of private citizens—But the gentlemen goes on to tell us, that the primary object is the general government, and that the rights of individuals are only incidentally mentioned, and that there was a clear impropriety in being very particular about them.
But, asking pardon for dissenting from such respectable authority, who has been led into several mistakes, more from his predilection in favour of certain modes of governmens, than from a want of understanding or vera|city, the rights of individuals ought to be the primary object of all government, and cannot be too securely guard|ed by the most explicit declarations in their favour. This has been the opinion of the Hampdens, the Pyms, and many other illustrious names, that have stood forth in the de|fence of English liberties; and even the Italian master of politics, the subtil and renowned Machiavel acknow|ledges, that no republic ever yet stood on a stable foundation without satisfying the common people.
This is just one passage from a rich and interesting pamphlet, link above in the abstract.
The review itself is worth reading, but the tone is sharp and the substantive analysis of the actual content of the voices that Amar does not take into account is frequently thin. So, read Warren herself. Then track down and some of the other primary sources.
Amar will surely write another book about this period. Wouldn't it be lovely if he were to take up the challenge and write about "The Words That Could Have Made Us?"
