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A history of the American Constitution’s formative decades from a preeminent legal scholar

When the US Constitution won popular approval in 1788, it was the culmination of thirty years of passionate argument over the nature of government. But ratification hardly ended the conversation. For the next half century, ordinary Americans and statesmen alike continued to wrestle with weighty questions in the halls of government and in the pages of newspapers. Should the nation’s borders be expanded? Should America allow slavery to spread westward? What rights should Indian nations hold? What was the proper role of the judicial branch?

In The Words that Made Us, Akhil Reed Amar unites history and law in a vivid narrative of the biggest constitutional questions early Americans confronted, and he expertly assesses the answers they offered. His account of the document’s origins and consolidation is a guide for anyone seeking to properly understand America’s Constitution today.

Preface

The First Four Score

IN THE REIGN OF GEORGE III, the king’s subjects on both sides of the Atlantic began to argue furiously about the nature of government, the structure of empire, the duties of allegiance, and the rights of Englishmen. The heated quarrel eventually came to a boil. Colonial patriots forsook an unworthy ruler, formed new constitutional governments, and forged a fresh legal identity for themselves. The transatlantic Englishmen of 1760 became the Americans of 1776.

But were they Americans first, or should their primary loyalties run to their respective colonies-turned-states? This was the key constitutional question of the next period of American history as the continent’s leading statesmen pondered whether to remain states’ men. The federal Constitution that won widespread popular approval in 1788 proclaimed its own answer to this question, an answer reinforced yet gentled by an extraordinary series of ratification conversations and concessions that occurred that fateful year.

As the Constitution launched in 1789, urgent new constitutional questions sprang up in rapid succession and indeed continued to spring up over the next half century. North Carolina and Rhode Island initially refused to ratify. How might President George Washington, flanked by House leader James Madison, entice these states to rejoin their sisters? How should Washington, with Treasury Secretary and Acting Secretary of War Alexander Hamilton at his side, respond to a western Pennsylvania tax rebellion in the early 1790s? When France’s Louisiana territory became available for purchase in 1803, would President Thomas Jefferson need to persuade his fellow citizens to amend their Constitution, or could he do the deal by treaty and statute? Should America allow slavery to spread into any or all of this vast region stretching from New Orleans to Canada? Where did Indian tribes and nontribal Indians fit into the picture? Women? Free Blacks? What about visitors from abroad and foreign-born American citizens? What role should the Constitution’s then weakest branch, a federal judiciary led for more than thirty years by Chief Justice John Marshall, play in these conversations?

In each generation, 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.

This book tells the story of America’s constitutional conversation during its first eighty years—from its birth in 1760 until 1840, just after the last of America’s early constitutional conversationalists died and bequeathed the conversation to posterity.

BUT DO WE REALLY NEED yet another American history book—and a long one at that? I think that we do, else I would not have spent much of my life on the tome that you now hold in your hands.

While history books abound, precious few are wide-angled and multigenerational treatments of the American constitutional project. In recent decades, many great American historians have turned away from institutional and political history and toward social history, exploring the daily lives of our common folk more than the deep logic of our common law or the basic features of our constitutional government. Also, many of the best works of history are period pieces that illuminate a decade or two but do not even try to trace the analytic and narrative threads across the generations. If an exceptionally ambitious modern volume does seek to sweep across three-quarters of a century or more, it typically does so not panoramically but with a tight focus on a single issue—say, chattel slavery or western expansion or sex equality or presidential power.

Consider, for example, two of the biggest bones of constitutional contention in American history: whether a state may ever nullify federal law or secede from the union. Many of the best general history books on the Founding fail even to mention these legal issues. As most professional historians periodize the American saga, these are “antebellum era” and “Civil War” topics and thus not central questions for a founding-era historian. Yet many of the right legal answers to the burning issues raised by the South Carolina Nullification Ordinance of 1832 and the secession crisis of 1860–1861 do in fact reside in the relevant legal materials of 1787–1788.

So, too, narrow historical periodization has obscured the true and complete story of Jefferson’s and Madison’s peculiar views on the issue of a national bank. In 1791 the two men denounced Hamilton’s bank plan as unconstitutional, but in 1816 President Madison signed a bank bill into law, and did so without a peep from Jefferson. Most scholars of the 1790s highlight Jefferson’s and Madison’s 1791 constitutional crusade against Hamilton, but never tell readers that a Supreme Court dominated by Jefferson and Madison appointees unanimously rejected these constitutional claims as nonsensical in 1819. The later date falls outside the closing boundary of most founding-era narratives.

Many of the best history books of late have also shied away from offering anything that might resemble an emphatic authorial opinion on a once contested legal issue. This hesitation may reflect the fact that most historians lack formal training in legal analysis. If asked, many historians today would say they simply seek to understand the past on its own terms. These scholars do not wish to opine on who was legally “right” and who was legally “wrong” in days gone by, or what the “lessons” of the past are for today’s law and politics. (The scare quotes around the words right, wrong, and lessons reflect the diffidence of the typical modern historian.)

Lawyers, judges, and lawmakers approach the past differently. Constitutional principles and judicial precedents from long ago carry weight today, even though the world has undoubtedly changed in the interim. In the case now pending, the court must give judgment—and soon—to either the plaintiff or the defendant. The president must either sign or veto—within a few days—the bill that currently sits on his desk. Today’s legal decision makers thus crave a usable past to guide them in the here and now.

Yet legal scholars have failed to fill the void left by historians. Some constitutional scholars openly mock those who rely heavily on history, while most other leading lawyers and legal academics simply ignore the appropriate historical materials or offer only superficial accounts.

Meanwhile, America’s constitutional conversation continues to chug along in courtrooms, classrooms, newsrooms, family rooms, and everywhere in between. As rich and robust as this discussion is, it would be better if students, scholars, journalists, judges, pundits, politicians, and indeed, citizens more generally had a handy history of the epic American constitutional conversation in its early period. Hence this book, which aims to unite history and law in a wide-angled multigenerational narrative that seeks both to understand the past and to evaluate it using proper historical and legal tools of analysis.

Of course, no single volume could hope to cover every constitutional issue that arose between 1760 and 1840. This book does aim to trace the main thread of America’s constitutional conversation and to pay special attention to the nature of the conversation itself. What was the basic structure of the conversation? Who participated, how, where, and why? American newspapers and print shops, key components of the conversational system, loom particularly large in the chapters that follow.

These chapters tell a panoramic story of America itself, a story of how various widely scattered New Worlders first became Americans and then continued to debate and refine what being American meant, legally, politically, militarily, diplomatically, economically, socially, ideologically, institutionally, and culturally—what being American meant constitutionally. Uniquely in the history of the world, Americans in the late eighteenth century constituted themselves as a people and as a nation in a series of epic and self-conscious acts of democratic self-invention. In 1776, thirteen British North American colonies renounced their common parent and created what would later become the world’s mightiest power. But USA 1.0 as constituted by the Declaration of Independence, the Articles of Confederation, and thirteen independent state constitutions failed to work as hoped. Revolutionaries therefore rethought the problem from the ground up, conceiving and enacting an astonishingly ambitious yet terse text, “this Constitution,” laying down the “supreme law of the land” for themselves and their “posterity.” In the pivotal year of 1787–1788, more common folk were invited to vote on this proposed Constitution, USA 2.0, than had ever been invited to vote on any issue in the history of humankind. Americans high and low participated not just by voting, but by speaking and listening, writing and reading—by conversing with each other, pro and con, up and down the continent, in newspapers and elsewhere.

The agreement of “We, the people of the United States,” to ordain and establish an audacious document in the late 1780s hardly ended the constitutional conversation, for immediately thereafter the questions became whether and how to amend the new document and how to interpret and implement it. Americans repeatedly asked themselves who should lead this constitutional conversation and what should be the basic rules of conversational and constitutional engagement. The Constitution was a set of words. What did these words mean and how should they be read and made real? Would these words continue to work as the Revolutionaries who drafted and ratified them passed from the scene and gave way to a new generation of conversationalists?

OUR STORY BEGINS IN 1760, when the very phrase, “America’s Constitutional Conversation,” might have prompted a wag in the tradition of Voltaire to protest that the New World’s basic framework was neither American nor constitutional nor conversational. The British Empire existed as a powerful legal, political, military, diplomatic, economic, social, ideological, institutional, and cultural reality. The Province of Massachusetts Bay existed as a formal juridical entity, as did the Colony of Virginia. But America did not exist—at least not as an official legal unit. Nor was there much occasion for colonists to converse continentally and constitutionally. Boston and Williamsburg paid far more attention to London than to each other. As yet, London had given New World inhabitants little reason to think deeply about the (unwritten) British Constitution—little reason, in particular, to think about the legal structure of empire and the legal rights and duties of Englishmen on opposite sides of the ocean.

Then, quite suddenly, everything began to change.

PART I

REVOLUTION

— one —

“SEEDS”

THE NEWS REACHED AMERICA ON a steed that had no legs but promised swiftness.

The merchant ship Racehorse landed in Boston on Saturday, December 27, 1760, after forty days on the choppy ocean that both connected and divided Old England and New England. The trader bore incontrovertible tidings from early November British newspapers, copies of which Captain Samuel Partridge immediately distributed to Boston print shops for partial republication. As passengers and crew came ashore, word also spread from mouth to mouth: the old king was dead and a young king now sat on the throne.¹

The aged George II had passed away two months earlier—on October 25, to be precise. Officials across Great Britain promptly proclaimed the dead monarch’s twenty-two-year-old grandson King George III in what seemed to the London papers a smooth transfer of power.

The transition was not seamless in colonial Massachusetts in the winter of 1760–1761. Hairline cracks emerged that would later widen into a gulf between America and Britain as vast as the Atlantic itself. Some of the same Boston publishers who enjoyed a good working relationship with Samuel Partridge would have harsh things to say about another captain who came to town less than a decade later, Thomas Preston. Almost exactly thirteen years after Partridge’s crew dropped anchor, other men would drop other things into Boston Harbor. Britain would respond by sending many more vessels—warships, not traders—into Boston and other American ports. In 1775, war would break out within earshot of the taverns and alehouses where loyal British Americans first toasted young King George III. Only a decade and a half into the reign of a ruler whose accession they hailed when they heard the news, provincials in Massachusetts and twelve other colonies would cut all ties to this man and to the British Empire that he embodied.

PROCLAMATION

The pace of the Racehorse and all similar, often slower, transatlantic vessels portended trouble for the empire: How could London project power over distant, populous, and fast-rising American colonies in the decades to come? Three thousand oceanic miles lay between the Old and the New World—miles (and sometimes months) of privation and isolation, with passengers and crewmembers largely cut off from the rest of humanity.

Coastal and land miles on America’s eastern edge were different. Travelers could roll along a road or sail along the shore at whatever pace and in whatever size group they preferred—all the while remaining close to good food, clean water, current newspapers, fresh company, and many of the other comforts and conveniences of civilization. By 1760, countless inns, hamlets, villages, and towns, and even several fledgling cities—Boston, Providence, Newport, New Haven, New York, Philadelphia, Baltimore, and Charlestown (now Charleston)—dotted the seaboard and its tributaries. These nodes and conduits formed multiple and overlapping networks of information and refreshment strengthening the thousand-mile stretch that encompassed thirteen distinct British North American colonies, bracketed by New Hampshire and Massachusetts up north and the Carolinas and Georgia down south.²

Though separated from their common mother by a wide and lonely ocean, these thirteen bustling colonies thus found themselves interlinked by shorter and less lonely highways, waterways, and information channels. If ever these provinces leagued together against Britain, they would enjoy stronger supply lines and lines of communication, not to mention an enormous advantage in potential boots (and guns) on the ground. One and a quarter million provincials of European descent peopled this New World corridor, alongside some three hundred and fifty thousand Black slaves and free Blacks, combining to form a fast-rising civilization that was already beginning to measure itself against Britain’s eight million souls. Boasting astonishing birthrates and robust immigration numbers that had sextupled the population in the preceding six decades, these colonies bade fair to surpass the mother country within a few generations.³

Had any British minister or monarch given serious thought to colonial matters in the closing days of 1760, he would have surely appreciated the strategic need to preserve and strengthen, somehow, the slender cords connecting Britain and America. But the telling details of George III’s proclamation, meticulously documented in the London papers, suggest that America was at best an afterthought for the young king and his advisers.

The days immediately following the death of George II saw a profusion of pomp, pageantry, power consolidation, and legal formality in Britain. In London and other British cities and market towns, criers quickly proclaimed the old king’s grandson “by the Stile & Title of GEORGE the Third, King of Great-Britain, France [sic] and Ireland, Defender of the Faith.” Attendants medically examined George II’s corpse and laid it to rest in an elaborate multitiered coffin covered with a pall of purple velvet and lined with purple silk. An Anglican clergyman preached an official sermon under the superintending eye of the Archbishop of Canterbury. The sword of state was carried to and from the Chapel Royal. Nearly a thousand London merchants offered their new monarch condolences and congratulations, and “all had the honour to kiss his Majesty’s hand.” George III addressed the House of Peers and, by royal proclamation, prorogued Parliament for several days. Yet no one thought to issue a timely legal directive to the Province of Massachusetts Bay.⁴

Official instructions would not reach the New World until mid-January—nearly three months after the old king died—when a twenty-gun British man-o’-war, HMS Fowey, arrived in lower Manhattan with documents under seal from the Privy Council directing New York’s provincial officials to proclaim the new king.⁵ Revealingly, Parliament in its 1707 Succession to the Crown Act had mandated, upon penalty of high treason, that the Privy Council “with all convenient Speed” cause Queen Anne’s successor “to be openly and solemnly proclaimed in Great Britain and Ireland,” but had said nothing about proclamation in America. Later Parliaments failed to fill this gap, even as America’s wealth and population soared.⁶

This imperial laxness threw the Massachusetts government into a quandary. Thanks to the Racehorse and Partridge’s distribution of London journals, Boston newspapers would soon inform their readers about all the British ceremonies. Even so, was it proper for mere provincial officials—acting on their own and without explicit imperial authorization—to proclaim a new king? The English-born royally appointed Massachusetts governor, Francis Bernard, put the question to his locally elected council, who advised him to act promptly. As Lieutenant Governor Thomas Hutchinson later recalled the prevailing sentiment, “it was probable that many weeks would pass before orders arrived, and it would have a strange appearance, if all writs, processes, and publick acts of every kind, continued, all that time, in the name of a prince known to be in his grave.” Bernard did as his council urged. But Hutchinson—also a royal appointee, albeit Boston-born—had doubts: “There is great room, notwithstanding, to question the propriety of” Bernard’s improvisation.⁷

Here—in microcosm, in the tiniest of legal technicalities—lay a tension that would later grow to world-changing proportions. If Britain could not be bothered to pay close attention to colonial affairs, then colonists would have to manage on their own. Once independent action became a habit, where would it end? What would happen if Britain ever tried to tighten its leash?

FOR THE MOMENT, FEW OF Hutchinson’s townsmen seemed to share his anxiety, however astute it might have been. At noon on Tuesday, December 30, Bernard addressed a throng from the balcony of the Boston Court House—the province’s most majestic edifice, anchoring one of the city’s most distinguished thoroughfares, the aptly named King Street. Above this east-facing balcony, a large wooden lion and unicorn, symbols of the monarchy, flanked the building’s pediment. George III was now, the governor declared, “our only Lawful and Rightful Liege Lord” to whom “we acknowledge all Faith and constant Obedience, with all hearty and humble Affection.” Bernard dutifully “beseech[ed] GOD (by whom Kings do Reign) to bless” the new monarch “with long and happy Years to Reign over us.”⁸

By all appearances, Bernard embodied the sentiments of the many on this grand occasion. According to the Boston News-Letter, as soon as the governor ended his proclamation with the customary “GOD Save the KING,” the “vast Concourse of People of all Ranks” in attendance responded with three huzzahs for the third King George. A regiment of local militiamen, who had mustered under arms on King Street, added its own approbation by way of three celebratory volleys. Later that evening, townsfolk marked the occasion with “publick Illuminations” (candles, lanterns, bonfires, and fireworks) and “a handsome Entertainment” at Faneuil Hall, where “many… loyal Healths were drank” to the king and his royal family. “The whole Ceremony,” observed the News-Letter’s printer, John Draper, “was carried on and concluded with great Decency and good Decorum.”⁹

Draper had strong ties to the royal government, but other printers who did not, including the Boston Gazette’s copublishers, Benjamin Edes and John Gill, cheerfully copied Draper’s rosy depiction. In the ensuing months, the News-Letter and the Gazette would begin to offer Bostonians contrasting accounts of the policies of the young king and his ministers. By the mid-1770s, these two newspapers’ opposing patrons were firing not just words but bullets at each other. Yet none of the antipathy to come surfaced in the opening hours of 1761, when the News-Letter and the Gazette sang from the same hymnal in praise of their young ruler.¹⁰

AS THE NEW YEAR DAWNED, Britain’s greatest American asset was thus intangible: devotion. The king and the empire enjoyed the freely given, widely shared, and deeply felt love and loyalty of the colonists. Over the next fifteen years, colonial support for Britain and George would dissolve and Americans would renounce their mother country and their father figure.

According to one famous and oft-quoted observer (who will soon appear onstage in our story), the “seeds” of independence were “sown” shortly after Bernard’s proclamation, in a highly technical 1761 lawsuit now known to legal experts as Paxton’s Case and generally referred to by lay folk as “the writs-of-assistance case.” Ironically, the case took shape thanks to the very event that had prompted such celebration on December 30: the accession of George III.

Our famous observer was right in his largest claim. The seeds of independence do indeed reside in this complex and intricate lawsuit. The oft-quoted observer was, however, wrong on many important specifics that mattered then and still matter now. But he was wrong in ways that can nonetheless teach us a great deal about both him and his world. To see why Paxton’s Case was indeed the opening event of the American Revolution, we will need to wade deep into the weeds and examine this complicated case with meticulous care, with a proverbial legal and historical microscope. Our care will be rewarded. By the end of our weedy and microscopic investigation, we shall emerge with nothing less than a fresh understanding of the origins of the American Revolution and a deep appreciation of several of its most notable protagonists.

WRITS

On both sides of the Atlantic, legal writs—formulaic judicial instruments instructing addressees to do this or not do that—issued in the name of the king. Each sort of writ had its own specific label, form, purpose, and tradition. For example, a writ of mandamus ordered a person, typically a government official, to perform a nondiscretionary affirmative act: “Do the following, as required by law.” A writ of certiorari directed a lower court to make its record available to the writ-issuing higher court for proper appellate review. A writ of habeas corpus, also known as the Great Writ, ordered its addressee to produce in court the body of a person being physically confined so that the writ-issuing court could decide whether the confinement was legal.

Under British law, when one king died and another came to power, all writs expired after a grace period of precisely six months unless reauthorized in the name of the new monarch.¹¹ One species of colonial writ irked one prominent Massachusetts lawyer. George II’s death provided this lawyer a special chance to make his case. The lawyer thus did what lawyers throughout history have done. He went to court.

ATTORNEY JAMES OTIS JR. STREAKED across the landscape of colonial Boston in the 1760s like a flaming meteor. His many admirers, including John Adams, ranked him a profound constitutional thinker and perhaps America’s greatest orator—a New World blend of Sidney and Cicero. His powerful detractors, including Thomas Hutchinson, deemed him bombastic, erratic, and undisciplined. They nicknamed him “Jangle Bluster.” His widely discussed 1764 pamphlet, The Rights of British Colonies Asserted and Proved, sounded the alarm against incipient British tyranny and proposed a philosophical and legal framework for provincial rights, foreshadowing much of the prolific pamphleteering to follow on both sides of the debate and both sides of the Atlantic. Prior to 1761, however, Otis had yet to achieve the fame he craved.¹²

In some ways, he resembled the young king whose policies he came to oppose. Both George and James were powerful political scions with powerful political sires. Each entered the family business and aimed for the family chair—the British throne for George and the Speakership of the Massachusetts Assembly for James (a seat he eventually won in 1766 but was not allowed to occupy because of gubernatorial opposition).¹³ As the oldest surviving son in a large brood, each benefited from a culture of patriarchy and primogeniture. (George was the oldest male among his parents’ nine children, James the first of seven children to reach adulthood.) As youngsters, each received a rigorous classical education; each could thus hold forth in both English and Latin. Most poignantly, both George and James suffered from recurring and ultimately incapacitating mental instability.

In one critical respect, George and James were truly oceans apart. Yet here, too, they resembled each other, for each epitomized his homeland’s essence—Britain’s rigid class hierarchy and America’s upward mobility, at least for White males. Whereas George descended from a long line of royals, James sprang from a self-made man.

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“Deeply probing, highly readable… insightful, and at times surprising… Amar strongly suggests that America as a whole — through its great national conversation — did more to draft the Declaration of Independence than Jefferson, and more to write the Constitution than Madison…. In addition to educating Americans engaged in discussion about their rich constitutional legacy, the book has a generous spirit that can be a much-needed balm in these troubled times.”—New York Times
“[T]he rarest of things — a constitutional romance. Amar, an eminent professor of law and political science at Yale, has great affection for his subject as a text that is worthy of loving engagement by scholars and the public at large.” —Washington Post
"Fascinating…A masterly synthesis of history and law…Readers of The Words That Made Us will rightly marvel at its breadth and depth and at Mr. Amar’s scholarly acumen."—Wall Street Journal
"Amar argues in this probing account that the United States Constitution emerged out of conversations and debates among the framers — and that those conversations continue to this day."—NYTBR (Editor's Choice)
“Amar’s fresh and fascinating book focuses on the explosion of impassioned discourse that culminated in, and followed, the ratification of the U.S. Constitution. As the title suggests, the book elevates the importance of dialogue and debate in cementing American identity.”—Christian Science Monitor
“[T]he best book on the subject in many years.… [A] fresh look at the ideas that shaped the Revolution, constitutional framing, and early republic… [A] book both popular and learned… a book not only of a scholar but a patriot. If widely read, it may make the difficulty of finding appropriate professional historians to teach our children less of a threat to our common future.”—Law & Liberty
“Amar’s expert knowledge of the Constitution does not inhibit his ability as a wordsmith to tell this story in a manner that honors the complexity of the story and remains accessible to a broad range of readers. Every patriotic American should read this fascinating history in order to better understand our founding document (The Constitution) and the history that led our ancestors to wage war against England and then against the naysayers who were opposed to the development of a strong central government.”—Roanoke Times
"Dazzling…Against modern historians and legal scholars who condemn the constitutional order as a bulwark of elite dominion, Amar advances a neo Federalist defense of it as a deeply democratic, if imperfect, blueprint for stable liberty. This is no arid exercise in legal theory: Amar ties searching constitutional analysis into a gripping narrative of war, popular tumults, political intrigue, and even fashion, highlighted by vivid profiles of statesmen."—Publishers Weekly (starred review)
“A page-turning doorstop history of how early American courts and politicians interpreted the Constitution. A Yale professor of law and political science, Amar—who points out that most historians lack training in law and most lawyers are not knowledgeable enough about history—delivers a fascinating, often jolting interpretation. . . . Brilliant insights into America’s founding document.”—Kirkus (starred review)
"An audacious review of the Constitution’s origins, growth, development, and implementation, and the experiences and exchanges that produced its core principles and precedents....Amar’s multifaceted treatment of the start of the U.S. constitutional project illustrates much about our historical memory and demonstrates that there is far more to the constitution than the document itself."—Library Journal (starred review)

On Sale: May 4, 2021
Page Count: 832 pages
Publisher: Basic Books
ISBN-13: 9780465096350

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Akhil Reed Amar

About the Author

Akhil Reed Amar is the Sterling professor of law and political science at Yale University and the author of several books on constitutional law and history, including America’s Constitution: A Biography and America’s Unwritten Constitution. He lives in Woodbridge, Connecticut.

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