Has Akhil Reed Amar grown tired of constitutional law? It certainly seems so. The Yale professor burst on the scene in 1998 with The Bill of Rights, a brilliant book that managed a most extraordinary feat: offering a new perspective on one of the most intensely studied texts ever written. But since then, his output has steadily declined in rigor and enthusiasm, and it’s hard to see his latest volume, Born Equal, as anything other than a confession that the story of America’s fundamental law no longer interests him.
The Bill of Rights combined historical depth with a creative ability to compare and contrast different constitutional provisions to generate remarkably original insights from old and much-hackneyed material. Amar called this “holistic functionalism,” and it quickly became his trademark. And although his 2005 follow-up, America’s Constitution: A Biography, included a few striking flaws—notably his refusal to discuss the most up-to-date research on the meaning of the Constitution’s all-important Commerce Clause—it applied this holistic technique in fascinating ways. In fact, America’s Constitution is one of the best single volumes ever written on our founding document.
Since then, however, the quality of his work has deteriorated into superficiality and partisanship. His 2012 America’s Unwritten Constitution suffered from numerous omissions, clichés, and embellishments that weakened its credibility, not to mention its readability. Consider his reference to Lochner v. New York—the 1905 decision in which the Supreme Court held that the 14th Amendment protects the individual’s right to make a living as he chooses without unreasonable government interference—as “a demon in constitutional Hell.” Whatever one thinks of Lochner, it wasn’t especially controversial at the time, and it remained the law of the land for three decades. Reputable modern scholars such as Richard Epstein, David E. Bernstein, G. Edward White, and even Erwin Chemerinsky have acknowledged that the ruling had much to commend it. Surely it deserves more serious treatment than ridicule and name-calling.
Yet Amar’s willingness to indulge in caricature and politics instead of scholarship only worsened in the years that followed. In The Law of the Land (2015), he dismissed criticism of the Affordable Care Act by blithely declaring that it was “easily and obviously constitutional”—as if the profound constitutional objections to the act that divided the nation and courts for years were trivialities. He argued that the right to free speech “must be allocated with an eye toward equality,” ignoring the tremendous risks involved in viewing speech as a privilege government can “allocate” however it wishes. He denounced Bush v. Gore with the false assertion that the Supreme Court “[took] upon itself to resolve” the 2000 presidential election. (In fact, Al Gore, the plaintiff in that case, asked the justices to decide whether Florida’s selective recount, which gave some votes more weight than others, was consistent with the Equal Protection Clause.)
Now, Amar has taken up what he calls “a long [and] ambitious” project: a three-volume “grand narrative of America’s Constitution,” which, he claims, will “set judges and other legal officials straight about what the Constitution really means.” That is ambitious, indeed. The first volume, however—2021’s The Words That Made Us, which was supposed to cover constitutional developments from 1760 to 1840—was shockingly flawed. It ignored crucial episodes of constitutional history—never discussing monumental Supreme Court rulings such as Dartmouth College v. Woodward, Gibbons v. Ogden, or the Charles River Bridge case, for example—and was riddled with fallacious, even misleading arguments and bizarre digressions, such as several pages-long discussions of Benjamin Franklin’s famous “join or die” political cartoon, that did nothing to advance the narrative.
Now Amar has published the second volume, Born Equal: Remaking America’s Constitution 1840-1920, which gives the distinct impression that he’s simply grown tired of studying the document which is the focus of his profession.
He devotes the middle 300 pages or so to the controversies that sparked the Civil War: slavery, its expansion, and the Confederacy’s claim that states can secede from the union. On these subjects, his writing is accurate, interesting, and convincing. He faithfully describes and judicially weighs the contentions of antebellum Southerners who said that slavery was constitutionally protected, that banning it from the western territories was unjust discrimination against Southern whites, and that states could declare themselves independent whenever they thought Washington, D.C., overstepped its bounds. He explains with patience and precision why these arguments were baseless: The Constitution gives Congress power to legislate for federal territories “in all cases whatsoever”—which must include the right to ban slavery—and the concept of secession is wholly incompatible with the Constitution’s essence as a constitution, as opposed to a treaty or a league.
But these are all things Amar has published before, and his discussion of these and other Civil War-era controversies in America’s Constitution was richer and more convincing. Born Equal adds little that’s new—and when it goes beyond this recycled material, what it does offer is not much more than a smorgasbord of irrelevancies and downright errors.
Take Amar’s claim that the Dred Scott decision’s flaws can be boiled down to “a single sentence,” specifically the one in which the court declared, “An act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” But that’s actually one of the few sentences in Dred Scott that was correct: It certainly would violate due process to strip someone of property simply because he travels from one state to another. That’s why no contemporaneous anti-slavery thinker singled out that sentence for condemnation. Instead, they concentrated their fire on a different sentence: the one falsely asserting that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.” Surely that was more outrageous than a benign recitation of centuries-old due process principles.
Yet rather than delve into the real substance of Dred Scott—which takes up only four pages of the book—Amar devotes his time to, of all things, art criticism. He spends at least six pages analyzing pictures of Lincoln’s funeral and another two on a far-fetched effort to claim that A.R. Waud’s famous Harper’s political cartoon lionizing the Freedmen’s Bureau was somehow based on Jonathan Trumbull’s painting of the death of Joseph Warren at Bunker Hill. This comes after 13 full pages devoted to the bizarre suggestion that Thomas Jefferson, John Adams, and John Quincy Adams somehow “contrived” or “willed” their deaths to imitate the paintings The Death of Socrates by Jacques-Louis David and The Death of the Earl of Chatham by John Singleton Copley.
Other efforts at cleverness aren’t just distracting, but also inaccurate. In a laudable effort at inclusivity, Amar devotes much attention to female activists, including Harriet Beecher Stowe and Elizabeth Cady Stanton—but exaggerates their influence on events. It’s surely an overstatement, for instance, to say that Abraham Lincoln “closely followed Harriet’s lead” in his arguments against slavery, or that his speeches “closely track[ed] the themes and memes of America’s first politically notable woman.” Important as Uncle Tom’s Cabin surely was, there’s little evidence that Lincoln based his arguments on it. In fact, the only support Amar offers for his inference of influence comes when he credulously repeats the old yarn about Lincoln greeting Stowe as “the little woman who wrote the book that made this great war.” It’s a nice story. But it most likely never happened.
Still, Born Equal is on more or less solid ground when discussing the Civil War era. When it comes to other periods, however, Amar simply can’t spare the energy. He repeatedly resorts to lengthy bullet-point lists of events, instead of offering a narrative. He devotes only two pages to the 16th Amendment (income taxes), and only five paragraphs to the 17th Amendment (direct election of senators), surely among the most significant changes ever made to the Constitution. And while one might think a book entitled Born Equal would spend significant time on Plessy v. Ferguson, Amar skims past it in a mere seven paragraphs.
He makes many false assertions, too, such as that Jefferson denied being influenced by John Locke when writing the Declaration of Independence (he didn’t), that the Texas Revolution of 1836 was principally motivated by a desire to spread slavery (it wasn’t), and that Thomas Cooley’s Constitutional Limitations, the most influential book on constitutional law in the postwar era, “focused far more on the laissez-faire political philosophy favored by many well-fed corporate lawyers and gold-watch-fobbed state and federal judges in the Gilded Age than on what We the American People had actually agreed to”—a caricature unrecognizable to anyone who actually reads Cooley’s book, which contains not a word of political philosophy, laissez-faire or otherwise.
Amar’s dismissal of most of the period between 1870 and 1915 as insignificant in constitutional history is astounding. These years encompassed the closing of the Western frontier, the advent of the secret ballot, the admission of 10 new states, the rise of the Populist and Progressive movements, the constitutionalization of Jim Crow, and the creation of the first federal regulatory agency, the Interstate Commerce Commission (which was led by the alleged champion of laissez-faire, Thomas Cooley). They also included transformative Supreme Court opinions such as Munn v. Illinois (which revolutionized government’s authority to regulate private businesses) and Boyd v. United States (among the court’s most important search-and-seizure precedents). G. Edward White got 662 pages out of this material in his outstanding Law in American History, Volume II. But Amar shrugs it all off in two.
None of this would be so disappointing were it not that Akhil Amar is capable of superb, even brilliant, scholarship. His earlier works were valuable, even ingenious. But Born Equal, far from providing a “grand narrative,” comes off as a slapped-together collection of historical trivia and bullet points by a writer who couldn’t muster the energy to delve into unexplored territory. And if its author has lost interest, how can we do otherwise?
