How will America’s 250th birthday influence our memory as a people? Many nostalgically remember the tall ships coming into the harbor for the country’s bicentennial, an experience that will be repeated this year. Maintaining the memory of a nation’s origin story is a necessary task for perpetuating a republic and unifying a people. The anniversary of the signing of the Declaration of Independence is an opportunity to revisit our national narrative, including the principles that define our experiment in self-government.
Akhil Reed Amar’s book The Words That Made Us is another attempt at getting American history right. Now five years old, it’s worth revisiting as we approach our country’s quarter-millennium. Amar’s contention is that the real writers of the Declaration of Independence and the Constitution were the American people: Those documents were the culmination of a widespread conversation among the citizenry. Two and a half centuries later, they still belong to us. Reading works like Amar’s critically is exactly the kind of engagement we need to revive our familiarity with our founding story.
The Words That Made Us is a spirited and enjoyable read filled with much good. It is both scholarly and popular, a mix of history and legal analysis, and it appeals to a wide audience. The great men of history, such as George Washington, are given their due, but so are everyday Americans. This is a fitting approach for understanding the character of America, which has been formed by both public opinion and statesmanship.
The most significant thematic focus of The Words That Made Us is on deliberation and constitutional conversations between the colonies and Great Britain and among the American people and the states. Across the generations, Amar aptly writes, history’s kaleidoscope continued to turn and create new patterns of constitutional discourse. Some issues tumbled into view, others fell out of sight, and still others reemerged in vivid new configurations as public servants and private citizens at all levels of government and society participated in a boisterous and sophisticated conversation about legal and political first principles.
Amar highlights how essential newspapers, political cartoons, and artwork were for building a consensus and encouraging political involvement (churches were also central for disseminating and forming American principles). The network of newspapers was particularly strong in America compared to other countries, and it both reflected and formed a republican character among the citizenry. Cleverly, Amar points out that the Stamp Act burdened paper businesses, including newspapers. In protesting against the Stamp Act, Americans were defending not only the principle of representation but freedom of speech.
To make his case that Americans wrote the Constitution, Amar carefully examines the state constitutions, revealing that many of the provisions that made their way into the federal Constitution were first present in one or more state constitutions: “The state constitutions of 1776–1784 were exuberant expressions of self-governance and also illustrations of how states were following and learning from sister states as part of a genuinely continental and fast-unfolding American constitutional conversation.” Consensus and the character of the American people existed prior to the ratification of the Constitution.
Similarly, Amar concludes that the American people wrote the Declaration of Independence. It is true that Thomas Jefferson drafted the document and so is often credited as its author. Still, much of its language comes from the Virginia Declaration of Rights, written by the less-celebrated George Mason. As Jefferson himself wrote, the principles of the Declaration, though their recognition was historically profound and unprecedented, already united the American people at the time of writing; the Declaration “was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. all its authority rests then on the harmonising sentiments of the day.” Though the Declaration formalized the compact, through the process of the Revolution, Americans had already transformed themselves into one people, committed to a set of principles.
Amar contends that his book combines history and legal theory, one of which is often neglected in other volumes; he has a background in both, so he is particularly poised to provide a “usable past” to help guide contemporary legal decision-makers. There is much to be learned from his work and approach.
But at times it is somewhat limiting, his means not entirely suited to the ends of presenting a comprehensive portrait of the American character. Amar overlooks and on occasion misunderstands other “words that made us.” Apart from the law and historical events, there is another major area that forms the American mind: the realm of ideas. Amar gives prominence to legal questions and reads documents through a legal lens. As a consequence, political philosophy and the Declaration are at times underemphasized and the meaning of the Declaration muddled or distorted.
Amar accurately writes that in the years leading up to the Revolution, “shifting arguments against Parliament’s encroachment—arguments rooted in not just legalistic claims from British precedents and British law books but also legal-philosophical claims about universal natural rights and the foundations of legitimate government authority—would ultimately find fertile ground up and down the continent.” A reader would expect his section on the Declaration of Independence to be the place to explain further such philosophical claims about universal natural rights. Yet Amar mainly chooses to underscore how the Declaration of Independence established America as a sovereign nation to gain credibility on the world stage and to attract foreign allies in the War for Independence.
But is it true? When considering the question “Did the Declaration oppose hereditary monarchy as such?” Amar answers,
If all are truly created equal, then, it has been argued, surely no one can be born a king and no one is born a mere subject. And indeed, Paine so believed. But Thomas Jefferson was not in this particular sentence trying to channel Thomas Paine. Context is all. A document aimed at winning over King Louis XVI of France and other European princes would hardly have attacked the very idea of hereditary princes or invited violent revolution against such princes everywhere.
This evidence against the natural law principles of the Declaration falls short. Foreign nations would enter or remain neutral in the Revolutionary War based on interest, and the Declaration (though a misunderstood version) would indeed prove inspirational for the French Revolution.
It is also curious that Amar gives preeminence to Jefferson’s understanding (and says in other sections that Jefferson infused state sovereignty principles into the Declaration), then shortly goes on to make the case that America, not Jefferson, wrote the Declaration. Even if Jefferson did not believe “all men are created equal,” Jefferson’s particular interpretation of the Declaration would not hold much weight within Amar’s framework.
For all of Jefferson’s personal faults and actions, he did ascribe to the principle of human equality (while not doing nearly enough regarding slavery at Monticello). When serving in the Virginia legislature from 1776 to 1779, he pushed to repeal primogeniture and entail laws that promoted “feudal and unnatural distinctions,” and echoed that human equality meant that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.” No individual has been born to rule over others without their consent. That not all were able to realize the aspirations of self-government was not a repudiation of the principle. As Abraham Lincoln wrote, the Founders
meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that “all men are created equal” was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, [and] thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism.
Continuing his analysis of the Declaration, Amar notes that many of its principles were “proper British principles” and that John Locke was British, but that Americans understood him better. To what extent colonists appealed to the British Constitution versus natural law principles could be parsed out more fully and carefully. In the Suffolk Resolves of 1774, for example, colonists connected the rights of Englishmen to natural right; they “derived from Nature, the Constitution of Britain, which was covenanted to us in the Charter of the Province.” The actions of the British Parliament were a “gross Infraction of those Rights to which we are justly entitled by the Laws of Nature, the British Constitution, and the Charter of the Province.” The colonists did not only appeal to the rights of Englishmen but extended that appeal to the very source of those rights: to nature and nature’s God.
The Declaration provides the principled justification for limited government that is then protected by the Constitution. The purposes of one cannot be fully understood without the other, their missions left unfulfilled if abandoned by their opposite. As Amar takes great pains to demonstrate, it was the American people who wrote both. In the years leading up to the Revolution, Americans formed themselves into one people, united around a set of principles that were given official expression in the Declaration. The Declaration formalized and the Constitution guarded an ambition that, though never permanently established, had come into being: a people committed to self-government.
Given Amar’s focus on the importance of newspapers, constitutional conversations, and deliberation, his book would particularly benefit from a discussion of Madison’s theory of public opinion, as developed by Colleen Sheehan, professor of civic and economic thought and leadership at Arizona State University, in James Madison and the Spirit of Republican Self-Government. Per Federalist 14, Madison too relied on a robust network of newspapers to disseminate information, encourage ongoing political participation, and form a public opinion that united might and right. Madison believed he had discovered how to make a republic work over an extended territory. Amar seems to conclude that Federalist 10 was about stabilizing a state internally, but Sheehan demonstrates that the multiplicity of opinions, passions, and interests over an extended territory was part of Madison’s theory of public opinion, which was vested with the sovereignty of the people and aimed at establishing the American republic.
The dispute over Madison’s character, and the question of whether he can be trusted has particular implications for how we understand the Constitution and the founding because Madison’s notes from the Constitutional Convention are the most extensive record available. While the normal human biases are to be expected (Madison seems to have had a personal dislike for Luther Martin, for example), Amar goes further in questioning Madison’s reliability and motivations. Amar writes of the Constitution that “slavery was not merely tolerated but privileged.” But Sean Wilentz, professor of American history at Princeton University, after a careful study of Madison’s Notes and other documents, concludes that “the Constitution, while perforce tolerating slavery where it existed, would not sanction it. It aimed to exclude not just the word ‘slavery,’ but any validation of the thing itself.” Madison wrote that the words “slavery” or “slave” were excluded because the delegates thought it “wrong to admit in the Constitution the idea that there could be property in men.” Wilentz makes the case that this exclusion “became the constitutional basis for the politics that in time led to slavery’s destruction.” This same exclusion would be emphasized by Abraham Lincoln and led Frederick Douglass to conclude, on simply reading the text of the Constitution, that it is a “glorious liberty document.”
Amar’s prejudice against political philosophy has cascading effects in The Words That Made Us, informing his treatment of the Declaration and James Madison. More careful attention to the realm of ideas would make his book an even more comprehensive portrait of the American mind. Yet as we approach the anniversary of the signing of the Declaration of Independence, his work demonstrates that America is indeed worth celebrating. Despite the setbacks, failures, and contradictions in the American story, generations of Americans have moved us toward human freedom by accepting the invitation to prove to the world that human beings are capable of self-government. If the American people wrote the documents that founded their republic, it is their responsibility to read them, engage with them, and preserve their principles.
