This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those views. Amar demonstrates that, contrary to popular belief, these dead white guys actually have much useful to say about modern constitutional law. Second, he contends that the Constitution has always been a living document—the subject of an ongoing conversation among all Americans. Third, among law professors, Amar has no peer as a wordsmith. He writes with singular power, precision, flair, and wit.
On the other hand, Professor Amar’s extremely nationalistic vision of the Constitution leads him to excessively praise the similarly broad interpretations of federal power presented by Hamilton, adopted by Washington (whom Amar deems the true Father of the Constitution), and eloquently explicated by the Marshall Court. Conversely, Amar tends to belittle the opposing constitutional approach of Madison and Jefferson as unprincipled political gamesmanship, instead of fully and fairly engaging with their arguments. Indeed, if Amar is correct that the Constitution developed as a dialogue in which ordinary people participated, then they must have endorsed the narrow construction of the Constitution proffered by Jefferson and Madison (and their successors Monroe and Jackson) because Americans elected these men as Presidents for four straight decades.
Whether one agree or disagrees with Amar, however, he is our most creative and prolific scholar of constitutional law and history. Therefore, any serious student of the Constitution must grapple with his analysis and conclusions.
Robert J. Pushaw, Jr., Playing with Words: Amar’s Nationalist Constitution, 80 Wash. & Lee L. Rev. Online 55 (2022), https://scholarlycommons.law.wlu.edu/wlulr-online/vol80/iss2/1