“AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America.” So began a particularly crucial development in America’s early constitutional conversation: a series of newspaper essays that we now know as The Federalist Papers. Hamilton’s (or rather, Publius’) opening salvo in support of the Constitution was an invitation to civic deliberation—a public conversation on the forms and purposes of law, politics, and constitutionalism.
In his wonderful new tome, The Words That Made Us: America’s Constitutional Conversation, 1760-1840, Yale law professor Akhil Reed Amar reproduces and analyzes that early conversation. Amar argues that America became America—and Americans became Americans—through reading, writing, and speaking with one another. “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,” Amar writes. Discussions of British liberties turned into debates over natural rights, which turned into dialogues on self-government and conversations about proper state and federal constitutional structures and the maintenance thereof.
The richness of the dialogue that Amar unearths should leave readers both proud of our imperfect yet inspiring constitutional heritage and disappointed in our present-day selves. In terms of seriousness, depth, and creative vigor, our political and constitutional discourse cannot hold a candle to early America’s. Moreover, beset by tribalism, we seem unable or unwilling to engage in the genuine exchange of ideas and back-and-forth debate that marked the most fruitful episodes of America’s early constitutional conversation. With Amar as our guide, we can learn how America’s early conversation emerged and strengthened, and we can begin to reflect on why it has withered.
Attentive readers will be struck by Amar’s decision to begin his narrative in 1760 rather than, say, 1765 (the Stamp Act Congress), 1774 (the First Continental Congress), or 1776 (the signing of the Declaration). Instead, he begins with the announcement of King George II’s death and Paxton’s Case. This Massachusetts Bay case revolved around the legality of writs of assistance, which empowered British customs officers to search dwellings, including private ones, for smuggled goods. In representing a group of aggrieved merchants, writes Amar, the fiery James Otis Jr. challenged these general authorizations to search private homes as “anathema to first principles of British liberty.”