What’s the Matter with Akhil Amar: Update

I’ve just copied this update from the previous post:

UPDATE: A better theory about why Amar would even want to make his monolithically successful, even hegemonic theory about democracy in the Constitution seem an insurgent, embattled one:

As Amar goes about defending the health insurance law, including the individual mandate, as utterly constitutional — anything, that is, but a violation, actually an expression of the democracy and equality he sees as hardwired from day one into the Constitution (sometimes despite the framers themselves!) — he must reject, explicitly, the claim of rightists that the law is socialism and ergo to them un-American. To make liberal policy not merely not un- but actually hyper-American — which is what liberal historians are always trying to do — requires staying militant, on behalf of liberal founding history, not so much against the right but against leftist critiques of founding history once associated so influentially with Beard, back in the dim, forgotten past. Amar knows full well that the liberal, consensus theory of history (with its intriguing period connections to Forrest McDonald and cold-warrior Goldwater rightism) triumphed before he was ten, and that few even remember Beard today, thanks in part to, yes, Gordon Wood (though Morgan was really the leader in that effort, I think).

But loudly re-fighting the ancient Beard fight gives Amar and all liberals seeking hyperconstitutional support for the health insurance law a way to violently reject socialism. It’s an exercise that in its microcosmic way repeats, for today’s politics, the broad sweep of what liberal, consensus history has been trying to do for more than a half century.

What’s the Matter with Akhil Reed Amar?: Liberal History, Democracy, and the Constitution

[UPDATE: Two more posts developing these ideas are here and here.]

You won’t find a better-expressed, more compelling encapsulation of the precise reverse of how I see the founders and the U.S. Constitution than in this talk by the constitutional scholar and well-regarded author Akhil Amar, “Andrew Jackson and the Constitution.”

Is this yet another Tea Party rant against abuse of the “necessary and proper” clause and the hegemony of the welfare stare? No, no, no. For those who don’t know Amar and his benchmark work The Constitution: a Biography, this is liberal history in a nutshell, ideally expressed by one of our brightest academics, a consultant to “The West Wing” no less, mentioned by some as a future Supreme Court nominee. He’s doing yeoman work making the rounds in constitutional defense of the Health Care Act. And as a speaker he’s got his own kind of charisma. To me the talk is a fun crash course in exactly the wrong way to look at the founding, a quick summary of the story I’ll never be able to undermine the way I’d like to. Check it out!

In his talk, Amar runs deftly and powerfully through what I can’t see as anything but our dominant narrative about the Constitution: that the document was structurally, “in its DNA,” as Amar says, and possibly against the founders’ conscious intentions (an idea Amar types always toss off without exploring), the most democratic thing ever created to that point, with almost all of its later expansions into further democracy almost magically hardwired from day one, and thus a mighty pivot in world history, with only one horrible thing wrong with it: the adoption of African slavery via the infamous three-fifths clause. The Constitution was thus elementally Jacksonian, in two key respects: admirably democratic (since Amar, with so many others, takes it as given that the rise of the white working class and the development of small-scale capitalism associated with Jackson is fundamentally democratic, making the Jackson administration in a special sense the “real” founding); and horribly “slaveocratic” (as Jackson, unlike slaveowning founders like Jefferson, was unapologetically pro-slavery).

In this reading — say it with me — the founders’ Constitution “failed” (tragically, as it was so earthshakingly democratic), as did the systems of Jacksonian America, precisely because of the slaveocratic element, leading to a civil war that, had the founders only faced up to the slavery nightmare, pragmatically revising the three-fifths clause over time, we could have avoided. It was left at last to Lincoln to hit reset and begin to get the American balance right: democracy without slavery. Then the Civil Rights movement and the liberal triumphs of the twentieth century and there you have it. Thank you and good night!

Being mind-numbingly familiar isn’t what makes that narrative wrong. Continue reading