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Constitutional Commentary




Const. Comment.

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Our generation’s preeminent constitutional scholar, Professor Akhil Amar of the Yale Law School, is, like the Constitution itself, a national treasure. His most recent book, The Words that Made Us, is another masterpiece of constitutional and historical exegesis, the first of three volumes that illuminate in what ways the American Constitution has defined, energized, united, and divided the nation and its people through constitutional conversations and engagements over its meaning throughout our history. The book is awash with stories about the incremental broadening of “We the People,” the hero, authority, casualty, and beneficiary of the words that made us. It is an intricate tale, but Professor Amar’s book is ultimately a celebratory tale. Fully aware of and appropriately sensitive to the dark detours of our history and laws, the words that made us, as Professor Amar explains, uplift and challenge the nation to understand and aspire to implementing the great promises of a governing document that belongs to all of us, even though none of us has had the opportunity to sign, approve, or amend it.

In this Essay, I focus on three big questions that Amar’s book tries to answer. First, I consider whose voices count in this grand tale of the words that made us. I commend Professor Amar for uncovering the different conversations heard in each era, but we cannot ignore the suppression and deliberate exclusion of some voices at different times and the ramifications of such tragedy and imperfection. Next, I consider what kinds of conversations matter in the construction of the Constitution and its meaning over time. There are formal dialogues that are part of the story of the words that made us, but there are also informal ones among the public. Lastly, I examine the normative framework shaping the narrative. The triumph of the Constitution is a triumph of reason. Reasoned elaboration is, or should be, the lifeblood of the law, but I am less confident and optimistic than Professor Amar that it has been the hallmark of our constitutional conversations. Just as economists should not ignore irrational behavior and preferences in their analyses, Americans, particularly American legal scholars, cannot ignore the fact that the irrationality and imperfections of our dialogues — both in what is said and not said — say at least as much about who we are as a people and our Constitution as the more rarified discussions that play an arguably outsized role in the inspiring and inspired story that Amar tells.

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