A Few Thoughts on Constitutionalism, Textualism, and Populism

Fordham Law Review Volume 65 | Issue 4 Article 23 1997 A Few Thoughts on Constitutionalism, Textualism, and Populism Akhil Reed Amar Recommended Citation Akhil Reed Amar, A Few Thoughts on Constitutionalism, Textualism, and Populism, 65 Fordham L. Rev. 1657 (1997). Available at: http://ir.lawnet.fordham.edu/flr/vol65/iss4/23 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . A FEW THOUGHTS ON CONSTITUTIONALISM, TEXTUALISM, AND POPULISM Akhil Reed Amar* 1 JERE is a confession. I am not a theorist, I am not a philosopher. X From time to time, I think about and write about the Constitution. I suppose if someone asked me, "What is your constitutional philosophy?" I might say that I am a constitutionalist, a textualist, and a populist. Now, I am, from time to time, more than those things, but let me explain those three words and their triangular interrelation. Let's start with constitutionalism and textualism. In ordinary language we talk about the Constitution, that's what it says here on the cover of my handy-dandy pocket copy. It is a text with four proverbial corners. It actually uses words like "this Constitution" to describe itself as a document. I don't want to suggest that's all that constitutionalism is, but I think one important part of constitutionalism is this text, both in ordinary language and legal language. It is, of course, more than that. It is an act, a doing, an ordainment and establishment, a constituting, a constitution. I think this connects to the linkage between constitutionalism and populism, the second leg of this triangle. The Constitution as an act is a dramatically populist act. Judged by philosophical standards, we look back and we are embarrassed, when we see the exclusion of slaves, when we see the exclusion of free blacks in some places, when we see the exclusion of women, when we see property qualifications in some states. Judged by the standard of history, however, the ratification of the federal Constitution was the most populist act in the history of the world up to that point. As Jed Rubenfeld has reminded us, ancient democracies had theories of democracy, but not of constitution-making. Instead, you had some great man claiming a pipeline to God: Solon, Lycurgus, Moses on Sinai. You did not have the act of constitution-making as involving this populist participation. You didn't have that with most of the state constitutions. You didn't have that with the Articles of Confederation. You didn't have that in most of the societies around the world that had been governed by immemorial custom or the lord of the manor or some strong military figure who just happened to be there. So, as an act of ordainment and establishment, it seems that there is an obvious connection between constitutionalism and populism. * Southmayd Professor, Yale Law School What follows are oral remarks delivered at the Symposium. I am most grateful for the thoughtful and careful editing provided by Professor Jim Fleming and Professor Abner Greene. 1657 1658 FORDHAM LAW REVIEW [Vol. 65 When we look at the subsequent acts involving later generations of "We the People," expanding the definitions of "the People" to include blacks, to include women, to include people who can't pay poll taxes, it seems to me that all of this is a continuous enactment of populism. When we look at the text, it starts with "We the People do ordain and establish this Constitution," which is a performative utterance. It ends with Article VII, which tells us how to ordain and establish-through these ratifying conventions of the people. Also, the Republican Form of Government Clause is a dramatic reaffirmation of the centrality of popular self-rule. You look at the Bill of Rights, for example, and five of the first ten amendments have this word, the "people," in them. So there is a connection between constitutionalism and populism. Put a different way, I don't think any account of the Constitution is really ultimately persuasive unless it comes to grips with issues of popular sovereignty and self-government over time. Finally, we come to the third leg of our triangle, the link between textualism and populism: What is the connection there? Well, one thing about the document is it is a shared text that all Americans have. It is short, and I think that is nice not just because that liberates judges, but because it is written in a kind of compact, lapidary way, as Larry Sager pointed out. I think it is nice for ordinary citizens that it has that feature, because I think constitutionalism occurs outside the courts. This textual document offers a vocabulary and grammar of argumentation for people whose parents and grandparents came from all different parts of the world. This is one of the things-in an eighthgrade civics way of thinking-that we Americans have in common, one of the things that constitute us as Americans. And I think it is, perhaps, a superior form of constituting us as Americans than the fact that we all watch Seinfeld and Friends on Thursday night. There is in this society perhaps a connection to Protestantism and, as Sandy Levinson has pointed out, in a Protestant culture there is an emphasis on text. I don't want to affirm the idea of sola scriptura,that it's text only, but it seems to me that text does matter in this culture. This helps account for the brute textuality of the thing. The fact is, dormant clauses from time to time can resurface because they just happen to be here and they are printed in everyone's document. So, you never know when the Tenth Amendment will rise from the dead. (Consider also Sandy Levinson's favorite Second Amendment, which is talked about a lot outside of courts and law school classrooms.) Thus, it is an important fact that there is that word equal in the Fourteenth Amendment in a way that the word wasn't in the South African pre-apartheid constitution. That word may have slumbered for many years, but it too had the possibility of reawakening because of this brute textuality. That's my own approach. Let me now try to engage Jack Rakove's account of originalism. For my purposes I want to focus on two points 1997] FIDELITY THROUGH HISTORY 1659 that he makes. One, that the Constitution basically is not ratified clause by clause, but in toto. Second, that there is an indeterminacy problem for originalists of a certain stripe. I agree with those two points. I think the first point emphasizes the importance of looking at the Constitution as a whole, because what was ratified was the document, not individual clauses. The clause is not the unit, or at least the only unit of analysis, as Jed Rubenfeld at times might seem to be suggesting. The generation is not the only unit of constitutional analysis, (...truncated)