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In his 2005 book, America's Constitution: A Biography, Akhil Reed Amar offers a radically democratic rationale for the legitimacy of the United States Constitution as the country's paramount legal authority. In Amar's eyes, the legitimacy of law is a function of its process of enactment: the more democratic the process, the more authoritative the law. Thus he contends that if a federal statute in the United States conflicts with the provisions of a treaty between the United States and a foreign country, the statute should prevail because, while treaties are made by the assent of the president and the United States Senate alone, statutes also require the concurrence of the House of Representatives, a larger legislative body closer to the people themselves. By the same logic, the greatest of all authorities in the United States is the Constitution which was enacted more democratically than any other law. Unlike laws, which are passed by the people's elected representatives, the Constitution-so the story goes-was adopted directly by the people themselves.
It would be naive, of course, to imagine that the process by which the United States Constitution was written and ratified in the 1780s was democratic as we understand democracy. The restriction of the vote almost exclusively to White men, to say nothing of the existence of slavery, would mock such a claim. Amar is keenly aware of these deficiencies. and he does not minimize them. In fact, throughout his discussion of the original Constitution, Amar exposes the corrosive influence of slavery at almost every turn. And unlike many writers before him, Amar does not protest that at least the Constitution laid the seeds of slavery's eventual destruction in the United States: it would be comforting, he says, to believe that it did, but it didn`t. Yet alongside his relentless exposition of slavery's role, he describes little-noticed ways in which the adoption of the Constitution was a remarkably democratic act. Amar notes that many states that ordinarily limited voting to propertied citizens relaxed their property qualifications when it came to constitutional ratification, thus allowing a broader-than-usual electorate to decide the country's most fundamental question. This piece of history is not part of the common knowledge of constitutional lawyers, and Amar deserves credit for bringing it to the foreground.
It would be naive, of course, to imagine that the process by which the United States Constitution was written and ratified in the 1780s was democratic as we understand democracy. The restriction of the vote almost exclusively to White men, to say nothing of the existence of slavery, would mock such a claim. Amar is keenly aware of these deficiencies. and he does not minimize them. In fact, throughout his discussion of the original Constitution, Amar exposes the corrosive influence of slavery at almost every turn. And unlike many writers before him, Amar does not protest that at least the Constitution laid the seeds of slavery's eventual destruction in the United States: it would be comforting, he says, to believe that it did, but it didn`t. Yet alongside his relentless exposition of slavery's role, he describes little-noticed ways in which the adoption of the Constitution was a remarkably democratic act. Amar notes that many states that ordinarily limited voting to propertied citizens relaxed their property qualifications when it came to constitutional ratification, thus allowing a broader-than-usual electorate to decide the country's most fundamental question. This piece of history is not part of the common knowledge of constitutional lawyers, and Amar deserves credit for bringing it to the foreground.
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