Preeminent legal scholar Akhil Reed Amar of Yale Law School, host of the Amarica’s Constitution podcast, joins National Constitution Center President and CEO Jeffrey Rosen to discuss the big constitutional questions confronted by early Americans, as described in Amar's groundbreaking new book, The Words That Made Us: America's Constitutional Conversation, 1760-1840.
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This episode was produced by Jackie McDermott, Tanaya Tauber, Lana Ulrich, and John Guerra. It was engineered by David Stotz.
PARTICIPANTS
Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law in both Yale College and Yale Law School. He is also the host of the Amarica's Constitution podcast. Amar is the author of numerous landmark works on constitutional law and history, the most recent of which is: The Words That Made Us: America's Constitutional Conversation, 1760-1840.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Akhil Reed Amar, The Words That Made Us: America's Constitutional Conversation, 1760-1840
- National Archives, Founders Online
- Library of Congress, Chronicling America
- Colonial Williamsburg, "Thomas Hutchinson"
- Bill of Rights Institute, "James Otis"
- The White House, "John Adams"
- James Otis, "Against the Writs of Assistance"( Feb. 24, 1761)
- Akhil Amar, "The Fourth Amendment, Boston, and the Writs of Assistance"
- Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776
- Constitution Daily Blog, “The story behind the Join or Die snake cartoon”
- McCulloch v. Maryland (1819)
- Constitution Daily Blog, “On This Day: The first Federalist Paper is published”
- New York Times Company v. Sullivan (1964)
- Amarica's Constitution Podcast
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center, I'm Jackie McDermott, the show's producer. Last week, Jeff was joined by renowned constitutional scholar, Akhil Amar to unveil professor Amar's new book, The Words That Made Us: America's Constitutional Conversation, 1760 to 1840. Here's Jeff, to get the conversation started.
Jeffrey Rosen: [00:00:25] Ladies and gentlemen, welcome to the National Constitution Center and to today's convening of America's town hall. I am Jeffrey Rosen, the president and CEO of this wonderful institution. I'm so excited about the learning that we have ahead of us tonight, and let us inspire ourselves for the constitutional conversation that we're about to share by reciting the National Constitution Center's mission statement. Here we go; The National Constitution Center is the only institution in America, chartered by Congress to increase awareness and understanding of the US constitution among the American people on a non-partisan basis. I mentioned that today's convening will be a constitutional conversation and there's no one in America better to have a constitutional conversation with than my dear friend, my law school teacher, my mentor, and America's greatest constitutional teacher and historian Akhil Amar.
Akhil has written The Words That Made Us, which I'm convinced is one of the most important constitutional histories of this generation, and one that will inspire Americans for generations to come. It's a pathbreaking work. It's the first of three books that will transform our understanding of constitutional conversations. And I can't wait to share it with you. So Akhil welcome. And thank you so much for joining here at the National Constitution Center.
Akhil Amar: [00:01:58] It's such an honor to be with you, Jeff. Thank you so much for having me.
Jeffrey Rosen: [00:02:02] We have so much to talk about, and I just wanna begin with a question that you pose in the postscript why this book and why now?
Akhil Amar: [00:02:10] Well, why this book because the book, as you said, is The Words That Made Us because I'm very grateful to be in America, truth be told. I want to tell our audience the story of an immigrant, a family comes to the United States. And my- my ... 'cause mother and my father, they actually weren't a family when they came, they came independently and met in Ann Arbor, Michigan. And that's where I was born. I'm the first generation born in the United States. And when I was 10 years old, they took me to Philadelphia. And I and they took me to Independence Hall and I was inspired by the Charters of Liberty. And then the next, they took me to Washington DC and the National archives. And we saw the parchments declaration of independence, the parchment constitution, parchment bill of rights.
And I think a lot about what it is that makes us, all Americans, we came ... our families came at different times. We Americans from different places descended from people who spoke different languages and professed different religions. So what is it that- that we have in common? What makes us, us, what makes the US the US. I've been thinking about that since 10 years old when they came to Philadelphia. So that's the why this book and maybe why now, 'cause I think I finally figured it out 50 years later.
Jeffrey Rosen: [00:03:28] Well, there's a ... you certainly did figure it out. And I hate, must share with our friends who are watching. I- I read the book with both a sense of growing wonder, and I ended up being moved to tears by your act of constitutional resurrection and faith. You have reconstructed the texts of the constitutional debates at the center of the American Republic from 1760 to 1840, using the words of the people who participated in them. And you told me that this book couldn't have been written five years ago, 'cause many of these texts were not online. I want you to tell our friends about what you were ... how- how you were able to reconstruct these texts now in a way that you couldn't have five or 10 years ago. And then start them off, just they understand how exciting this is by describing why you chose to start the book in 1760 and what the constitutional debates that you're describing then are.
Akhil Amar: [00:04:34] So this is really important for our audience. You can look at these things too because they're amazing websites that are open to the public, like the National Constitution Center the interactive constitution, which didn't exist 10 years ago, where you can go through the- the constitution paragraph by paragraph clause, by clause and- and read more about it. So there's a website put together by the library of Congress and it's ... a lot of its documents are word searchable, the records of the Philadelphia Convention Farrands records with Madison's notes at the center of those. Um, Elliot's debates, which are ratification convention is in 13 states. And- and a lot of that's word searchable.
There are 29 volumes of the documentary history of the ratification, the constitution that's now online and word searchable, 29 fit finds when you can, you can read what the debate was in- in Pennsylvania, in Virginia, in New York, in Massachusetts, to pick four of the more important states where people are- are debating with each other, they're talking, they're listening, they're changing their minds, they're adjusting their positions. There's an amazing database. Yesterday I did an event, the national archives is called the national archives of the ... it's the the framer ... the- the founder's online project and you can speed every letter word searchable to, and from the sixth grade founders, Washington, Adams, Jefferson, Madison, Hamilton, and Franklin.
And you can configure, you can come put in letter from George Washington to Alexander Hamilton, and they'll give you the chronological. You can see the first letter that they wrote, or the first letter that Hamilton wrote Madison, which is all about actually something interesting that happened in Philadelphia in the, in the early 1780s. It's all word searchable. You can do all of that. And here's one, that's amazing. This one, ... all those are- are free. This other one sits behind a- a pay wall. It's America's historical newspapers. You can actually call up a facsimile print and- and it's pretty ... and the word search capability is pretty good. It's not perfect, but it's pretty good for almost, almost any newspaper in almost any American city almost any day. And you can see basically for yourself what it is that people were talking about.
So- so if I've been able to- to do something now that I didn't do before, it was in large part because this society has created these amazing interactive online, largely free tools for us all.
Now, you asked also about 1760. So almost every book that you'd read about the American revolution and the run up to it would begin with the Imperial debate between Britain and her American colonies. And the story would start in 1763. So there are probably 50 bucks or 100 bucks in their subtitle 1763 to 1776. But I came to think that actually the story began even earlier, begins in 1760, '61 in Boston. And so- so act one scene one for me, if you're a movie fan, this would be the first time Harry met Sally. And I've got three people in a room for the first time. They're all Harvard graduates. One is named Thomas Hutchinson, he's the chief judge of the province. He's gonna go on to become the governor of the province, royally appointed. He's, he's American born, Boston born. He's the most prominent Boston born person, basically and the most ... and the brainiest of his generation alongside Ben Franklin.
He's gonna become the most significant loyalist in America that is someone who stays loyal to- to the king. And those are interesting people. And almost ne- ... none of our audience has probably heard of Thomas Hutchinson, even though he's a significant figure. And as late as 1773, if you had to guess who was gonna stay loyal to the crown and who was gonna be a rabble rousing revolutionary as between Ben Franklin and- and Thomas Hutchinson, you'd have to flip a coin. It's not so clear who. So I got Thomas Hutchinson and then he got a rabble rousing, a lawyer more ... An early rabble-rouser more significant actually, or earlier in the story then Patrick Henry in Virginia, then Thomas Jefferson in Virginia. I'm not sure if your audience knows his name, his name is James Otis, and he actually says some of these parliamentary laws even as early as 1760, '61 are unconstitutional, whatever that means. And therefore, null and void.
A few years later, he's gonna coin the phrase. Taxation without representation is tyranny, he's going to write leading pamphlets against the stamp Act which is a set of taxes that the British start imposing later in the story. So that's why mo- most stories begin 1763, '64, '65 with the end of a global war, the seven years war with a treaty of peace in Paris and the taxes that the British have to pay to- to ... have to impose, to pay for this war. They've won Canada from France, hooray. They got a deeply in debt, who should pay? They think the Americans for the Americans are benefiting from all of this.
So most stories begin 1763 with the stamp Act tax. And, Otis this is gonna be a leader against the stamp Act. And he's gonna be the driving force for a thing called the stamp Act Congress where Americans up and down the continent get into the ro- ... In a room.
But- but the story between the bad blood between Otis and Hutchinson actually begins in 1760 to 61. And because Otis the rabble rouser, riles people up against Thomas Hutchinson, there's a massive riot in 1765 and Hutchinson's house, which is the nicest house in Boston is actually destroyed. It's, it's the ... one of the worst moments of- of mass violence in the entire American revolution. If you can't understand that if you start the 1763, you gotta go back to 1760. Oh, and I got a third guy, also a Harvard graduate. No one's ever heard of him before this moment. He's 25 years old. He's he's just a lawyer scribbling down the notes of this really interesting de- ... Judicial hearing about a thing called Writs of Assistance, which are about the pri- ... The right people to be secure in their, in their houses. A man's house is his castle.
His name he's he's a nobody at the time, but he writes down notes of this really interesting judicial proceeding about thing called Writs of Assistance, which are gonna eventually become our fourth amendment conversation. And his name is John Adams.
So I got Adams Otis and Hutchinson all in a room together for the first time. And 50 years later, Adams says, that's when independence really starts, it turns out he's partly right, partly wrong, but to find out why and how you gotta reach out to when ... you got to get through the entirety chapter one. If you start reading chapter one of this book, you'll at first think like, why is he ... why is the author telling me this and that, and the other thing is very, you know, detailed? But by the time you get to the end of chapter one, you'll have a completely different way of thinking about the American revolution.
Jeffrey Rosen: [00:11:39] You really do. And that episode is so telling because it bears such a fruit in future chapters. So we learn from that ... from your telling the difference between legitimate and illegitimate crowd actions or mobs. You say that the Boston tea party was proportionate non-violent and playful and theatrical while the attack on Thomas Hutchinson's house destroyed his papers and his private property, and was an example of illegitimate mob violence. And similarly, you teach us in this episode, the importance of close attention to legal arguments, the friends who are listening, it was one of the greatest privileges of my life to study constitutional law with Akhil Amar when we were both starting off many- many years ago.
And Akhil tell us about as you do in the book, the difference between general warrants and Writs of Assistance. Why Writs of Assistance were less threatening in some circumstances than general warrants. And- and- and then I ... help our friends understand how is it possible that these debates, which took place largely in newspapers and among literate citizens were able to be conducted with such legal and technical precision.
Akhil Amar: [00:12:56] So first let me tell you just a little bit about the Writs of Assistance Writ of Assistance writ, a piece of paper and these pieces of paper authorized government officials to go into any place they wanted, including a private home to- to break down the door, if needed to get the assistance, the help of- of- of- of surrounding folk. They could actually commandeer public officials, or even just passers by, private people, the constable, in fact that's serving a customs house officer with this piece of paper, say, "I command you to help me break down this store." Looking for smuggled goods, goods in which the Bostonians hadn't paid the taxes on that were being imposed.
Now, this was a threat to everyone's home, everyone's privacy. And so, Otis thunder's against it? And there are a lot of smugglers in Boston and a lot of ... and so Boston is a big smuggling town truth be told, the Bostonians it's a way of life for them, but the British need to collect revenue.
And so they gotta crack down on smuggling. And so if you've got smuggled goods in your home, this Writ of Assistance is gonna authorize an intrusion into the home. Now in England, Writs of Assistance actually were valid. And many of the people who actually support the American revolutionaries believed in Writs of assistance. People like William Pitt, the great Lord Camden. Even as they ... those very same people said, oh, general warrants, which look very similar. They are sweeping authority of government officials to basically snoop anywhere. General warrants were apparently okay, Writs of Assistance. I mean general warrants excuse me, were not okay, Writs of Assistance we're okay. And that's what Hutchinson decides for these five judges on the highest provincial court in Massachusetts. He said, well, we've ri- .... we- we- we- we wrote legal authorities back in- in London for guidance, and they told us that these are okay, so what makes these writs okay. Whereas general warrants, which look almost identical are not okay. And it's the technical little issue. And Otis missed it, that- that- that law sometimes turns on really technical issues.
Here's the key. If government officials intrude upon you, you can sue them. And the Writs of the Assistance said, if they broke into your house and didn't find anything, if you were innocent, you can sue for damages, a jury of your peers can socket to the government official. And so even today, for example, we have these co- ... we are having conversations about whether people should be allowed to sue police officers who misbehave or whether these officers shouldn't have immunity. Well, that turns out was the same issue as in the Writs of assistance, 'cause the risks of assistance didn't give very much immunity. These general warrants gave government officials a lot more immunity, even if they- they had no reason to search, they found nothing at all. They just wanted to hustle someone because of that person's race or religion or politics, or what have you. The- the general warrants and they allowed officials to do that, the Writs of Assistance didn't. Yes, they were issued by a government official without a jury in the room. But if the if the if the customs house guy doesn't find anything in your house after breaking into it, you can sue and a jury will give that person massive damages.
Now, so that's, that's a technical legal issue, but so much of the constitutional law sometimes turns on fine points. You mentioned mob action. Yes. The differences between this riot involving Hutchinson's mansion in 1765 and the tea party, 'cause these are the same debates we're having today. What kinds of mob action or crowd action are permissible?
What where ... what goes too far? And- and I very carefully show you, well, some actions were peaceful and proportionate and they, and they weren't violent. And and they responding to severe injustice and they were no more aggressive than they, than they needed to be. In all of that, I was building, I want to tell your- your aud- ... our audience on the work of great scholars who came before me, including Pauline Maier, the late Pauline Maier. She was one of the historians who helped found the National Constitution Center. I actually, you know, was at her side when- when- when she did a lot of that. And- and she wrote a great book called From Resistance to Revolution and actually chapter two of my book is called resistance and chapter and- and and the whole section is called revolution. And that was an homage to the great Pauline Maier.
These are the same things we're talking about today. When does government search and seizure policy go too far? What's the role of the jury? Should there be qualified immunity? When does mass action? When is it legitimate? A kind of first amendment peaceable assembly? When is it ugly and violent and should be condemned, like say, I- I would say the- the January 6th storming of the Capitol.
Jeffrey Rosen: [00:18:07] Yes. It's remarkable. I read each chapter of this, of this wonderful book struck by the modern resonances and moved by the fact that you're revealing details of debates that have been ignored by historians who didn't know the law by lawyers who weren't deeply attentive enough to the history. And by allowing these ordinary men and women, and also founders to speak in their own words, you are reminding us of the centrality of text and also of the communications technologies that spread them.
I have to ask you Akhil, whether ... you- you often compare the newspaper debates of the founding era to modern social media technology. You talk about retweets and DOCSIS, and you show memes that are moving. And, but it's of course, impossible to contrast the rigor and depth of these founding era debates and their legal precision with our debate by tweet and the polarized simplicity of quick filter bubbles and echo chambers.
So do you what was different then that aloud ordinary citizens to slowly deliberate to read not endless, but serious essays, like the Federalist papers in the newspapers and debate. And I'll just take one of the many examples. One of the biggest questions that you talk about, who is sovereign, we, the people of the United States, or we, the people of the individual states? In a way that you think there was a right answer that really the convention following Wilson decided for the sovereignty of the national people. This debate has played out over debates about who should be admitted to the union and when Supreme court cases written by James Wilson himself. But- but throughout it all there- there's there's an extensive debate on all media platforms. Why- why was it possible then, and not now, and maybe use the sovereignty case as an example.
Akhil Amar: [00:20:01] Yeah. And sovereignty is gonna in the end be the nub of- of the civil war, nullification, secession, if states really are sovereign, why can't they choose to leave polo- ... Brexit? And I believe they can't. And I try to show you that, I try to show you how you can even see that literally in cartoons in Join or Die. The world's first global originating in 1754, initially in Philadelphia by good old Ben Franklin, who was there in the declaration of independence, and- and there in the constitution. And- and he's a newspaper man. He's a printer. And that Join or Die meme is in different incarnations, which is ... 'cause if you have, if- if- if you have to join or die, well, then there can't be unilateral succession. Once you're in, you're in the snake has to be one hole.
I show you different set of images that had emerged. There were reasons the snake didn't quite make a a revival in the 1780s. But other cartoons did because it's a democratic culture and- and they're trying to make simple but powerful arguments. You can see, I believe, you the reader, we've got lots of images in the book, the unconstitutionality of, you know, our succession, literally by looking at certain cartoons and thinking carefully about the logic of the cartoon about the picture. Now it is true, I think that their constitution was remarkably sophisticated and sometimes I'm really frustrated today. It's it's, it's not very careful tweets. So here's one thing that is possibly a difference. I see it in my own students. Jeff- Jeff, really, I- I- I ... Jeff was one of my best students ever. I fell in love with him. I fell in love with another student a few years later and Neal Katyal and I introduced Jeff to Neal and- and he later married Jeff's sister.
So but, but Jeff, I always marveled that here's something that you and Neal have in common. You're great readers, and you read books and not just short things. My students today, don't like reading long form stuff. They have a shorter attention span.
And so I told you how the internet is amazing to find all sorts of stuff, the quick word searches, but I think it's shortened our cultural attention span in ways that are unfortunate. Theirs was a highly literate society, at least among whites, males, as well ... Females, as well as male. So I'm gonna bracket, the slavery issue, but among free whites working class to upper class literacy rates are remarkably high. There's more newspaper consumption and production per capita in America let's say by 1790 than any place in the world, including Britain.
And why is that? Well, one hypothesis might be 'cause everyone needs to read because they need to read the Bible. It's a pretty Protestant nation. That one core idea of Protestantism is sola scriptura. You have to read the scripture for yourself. It can't be ... that you can't just rely on a priest telling you, but it means it has to be in a vernacular language. So not just in Latin, you have Gutenberg publishing a Bible in the vernacular. So Gutenberg and Luther are actually creating a certain revolution in which people ... And- and if you're gonna read the Bible, that's a long book. Or if you're gonna go to Sunday, if you're gonna go to church every Sunday, you're gonna hear a sermon about a long ... a slightly longer passage of text. And- and then you're gonna go every week and hear more elaborations of- of texts.
Um, so So you're gonna have someone like Jonathan Edwards, giving famous sermons Sinners in the Hands of an Angry God. Now, Jonathan Edwards grandson is the president of Princeton University. He was actually at Princeton. And his son, his son-in-law was ... the grandson is Aaron Burr, excuse me. The ... Of- of the, who shot Hamilton fame.
So one hypothesis is, they were book readers more than maybe the current generation. And- and I want us to get back into book reading. And- and I apologize, this is, this is a pretty big book. It'll take you a few weeks to go through. But if this is what we Americans have in common, you know liberal and conservative, Democrat and- and Republican coastal people heartland people people whose families came to the United States recently, people whose family came to the United States in slave ships. If- if what we have in common is this, then I think it's worth it to read one book, even if it's a big one that really tries to give you the deep background of what it is that we have. Because if we don't have anything in common, we're doomed, we're Beirut. And that's what ... that's why the national Constitution Center is- is so important. And truthfully why I'm so proud.
One of the proudest moments of my life was helping to found the National Constitution Center way back when, because when I came to Philadelphia 10 years old, I was so inspired by Independence Hall.
Jeffrey Rosen: [00:25:00] Akhil, when you said that your students today are not reading long books, I have to say that that brought- brought a tear to my eyes because you, you're brilliant students at- at Yale law school if they ... with all of the educational advantages in the world are not able to take the time to read complicated texts then how can we expect our far less privileged fellow citizens to make this effort. But it is urgently important and reading this book, which is long, but each page rewards close reading convinced me more than ever of the importance of listening to complicated arguments on both sides of the constitutional issue, because you believe that there often are right and wrong answers.
And I wanna give, as an example for our friends, George Washington, who is one of the heroes of your book, you have ... You conclude that Washington and Hamilton were far greater, ultimately than even Jefferson and Adams and Washington was great, you say, 'cause he listened to arguments on both sides and he listened to his fellow citizens. He was a reader, you call him and a listener but not a, not a journalist like Hamilton and- and Madison and the others. And when it comes time to decide whether or not to sign a bill chartering a national bank, he asks his two advisers uh, Hamilton, Hamilton, and then uh, Madison Madison on the other side to- to give their opinions and ultimately sides with Hamilton. And then Hamilton's wisdom is vindicated in a brief he writes to the Marshall court and upheld by chief justice Marshall.
So tell our friends what the arguments on both sides were, why they persuaded Washington and how they were inscribed into the US reports by John Marshall.
Akhil Amar: [00:26:39] So most of us were taught that Madison is the father of the constitution, and that's not the story that I tell. I say, it's George Washington. Overwhelmingly that's why George Washington unanimously is picked it to preside at the Philadelphia convention. He uniquely gets everything that he wants at Philadelphia, and Madison loses on most of the things that he, that he cares about that are distinctive. That's why Washington is unanimously elected president. Every elector vote for him in the first meeting of the electoral college, he's unanimously reelected. He towers over everything.
And so for the first year his team he has Jefferson on his left and Hamilton on his right in his cabinet. And James Madison is his point person in Congress putting his agenda through. So imagine Joe Biden. So he's got this agenda. So he's got Nancy Pelosi pushing it in that house and- and Chuck Schumer in the Senate. Well, Washington has James Madison pushing his agenda and he's got his cabinet officials someone on the left, so to speak, Jefferson, someone on the right Hamilton and for the first year, everything goes fine. And then the National Bank has proposed Hamilton drafts the bank bill and in the house of representatives, Madison not only opposes it, but says it's unconstitutional.
And then it reaches Washington, but- but Madison loses in the house and Senate, so the bill is now on Washington's desk. He is supposed to take constitutional law seriously, 'cause that's supposed to say, well, let the courts figure that out. If it's unconstitutional, he's supposed to veto that bill. And he has constitutional obligations, courts aren't the only ones who are supposed to take constitutional seriously.
And- and Madison was trying to take a seriously in the house, arguing we have to vote against this bill because it's unconstitutional. This is what is sometimes called today departmentalism. Each of the departments that legislature, house and Senate the- the president, as well as the courts, judge and jury had to take constitutionalism seriously. So the bill is on Washington's desk. He's got 10 days to decide. Jefferson writes a dr- ... A memo to Washington saying it's unconstitutional. He's secretary of state. Jefferson's cousin Edmund Randolph also writes ... Who's the attorney general writes Washington, a memo saying it's unconstitutional. Madison said the same thing.
Now Washington is getting a little worried here. So he says to Alexander Hamilton, you drafted this bill, you gotta convince me if this is constitutional. And I'm with Hamilton all the way. Hamilton writes a brilliant memo. I try to look at his arguments and- and compare them to Jefferson's and Madison's, and here you see, Washington is the listener in chief. He's brought people on all sides together. He makes ... he asked them to give them their best arguments. He then carefully sifts them and he signs his name on it. And eventually the Supreme court will unanimously agree with Washington in the landmark opinion cum McCulloch versus Maryland in 1819 by John Marshall. This is 30 years later on a court two of whose members were put on the court by Madison, three of whose members I think were put on the court by Jefferson. So maybe I got the two and the three mixed up, but- but five of the seven were actually put on by Jefferson and Madison and the court unanimously sides with Hamilton.
Madison himself will sign a new bank bill into law after having argued in 1791, it was unconstitutional. Why do I side with the later Madison over the earlier Madison? Why do I side with Hamilton? It's actually pretty simple when you step back. And why do I side with- with Washington? 'Cause I do think there's a right answer. And it's an answer that Madison eventually found even after having argued the other side, that Washington understood early on Hamilton, most of all, and that unanimous Supreme court accepted. Simple.
Once you understand the entire backstory of the American constitution, you need to understand. And I ... and my earlier books didn't start early enough. I have to start in 1760 and you have to get up to the American revolution. And then you have to go through the revolutionary war. Why is Washington preeminent? 'Cause without him there'd be no America. 'Cause you would've ... he, he's the person who holds America together and wins the war and then walks away from power rather than trying to make himself king using his army.
So everyone can trust him, but you can't be America unless you can beat the British. And you beat 'em once, but it was a close run thing. was a triple bank shot and you need to be able to beat 'em again if they try to come- come back. So core purpose of the constitution, I argue was national security. The 13 had to join together, join or die. If the colonies don't join together, they can't present a common front militarily against the- the- the English, the British, or for that matter, the- the French or the Spanish, they have to form a perfect union on the model of the union of Scotland and England in 1707. That's where that language comes from. England is an island nation, and that's why it's defensible and and America, and in fact has to be an island nation. The Atlantic ocean will be our English shim. That's the argument of George Washington. It goes all the way back to Ben Franklin, join or die.
And so point one, the constitution was created for national security. The Articles of Confederation tried to do it didn't work so well. Three times the Articles of Confederation used the word common defense. That's the core purpose of the constitution is common defense and forming a more, more perfect union for common defense in order to secure the blessings of liberty, it all fits together. Per- perfect union will facilitate common defense, which will protect liberty cause the British won't kill us. And we won't need a big army ourselves because we don't have international borders between Virginia and- and Maryland or Maryland and Pennsylvania. We're gonna have a- a largely demilitarized continent if we can join together.
Point one, we have a constitution for national security, point two, and this is what Madison doesn't understand 'cause Madison doesn't understand banks. Banks are very useful, national bank to win wars. That's why Britain beat France, 'cause Britain had a better credit structure. You need to- to ... you ... Get the resources of your economy to mobilize, to win wars, you have to pay troops on-site and on time, otherwise you're dead. They're dead. Washington was there at Valley Forge. Hamilton was there at Valley Forge. Marshall was there at Valley forge Madison and Jefferson weren't. They don't get it.
Point one, you need ... The constitution was for- for national security. Point two banks are really useful to help the troops get money and material to the troops when they need it and where they need it. And step three, pretty darn useful is good enough for government work. That's the core reason that ordinary people voted for the constitution. And by this point in the book, I've shown you, that's why people vote for the constitution for national security reasons. Not because of that essay that our readers, our audience have read Federalist number 10, which is written by Madison. That's a te- ... that's a series of newspaper essays. Would you wait to your 10th oped to make the argument of why you need an indivisible union? You'd make it earlier. And it is made earlier and Hamilton makes it, and it's all about common defense about how we have to be like England. I'm seeing like Britain union of Scotland and England. If that's, what's all about common defense then and national security, that's why ordinary people vote for the constitution.
So simple three-step argument, the constitution was adopted for national security. A bank is pretty darn useful for that and pretty darn useful as good enough for government work for a document designed for ordinary people. That's what they voted for common defense and a bank really is what they voted for. And that's why Hamilton was right, and Madison was wrong until he changed his mind and joined Hamilton and the Supreme court unanimously agreed. And I go ... the book goes all the way to Andrew Jackson's period. Your audience might say, oh, well professor, but later on Jackson vetoes, a bank bill new ... yet another bank bill and he just won unconstitutional press. Yes, yes, yes. But he never says that a bank is completely and categorically unconstitutional. He never goes back to the Jefferson position to the Randolph position, to the Madison position.
He says there are certain specific details about this bank bill that make it unconstitutional. But I have no doubt says Jackson in his veto message that we can come up with a federal bank, a national bank that's fully within Congress's a competent ... Congress has powers under the constitution that fully can can accommodate state's rights.
Jeffrey Rosen: [00:35:30] There's one large topic where you think that Madison and Jefferson got it right, and that is free speech. And your account of Madison's response to the Sedition Act champion by President Adams in the Virginia Resolution taught me so much including the fact that he and Jefferson made it to the Virginia and Kentucky legislatures 'cause legislatures has special protection for a speech. Jumping off of the idea of pa- parliament, [parliament 00:38:59], th- the speaking body. But they rooted that protection in the need for free examination of public characters that they thought was necessary for Republican government point reinforced by your entire thesis. That conversation circles among ordinary citizens and their representatives were at the core of the framers conception of republicanism.
So tell it ... but you think, you say Jefferson got it wrong 'cause he was reading it in a state sovereignty in the Kentucky resolution so that the details are so exciting and important. Tell our friends about that debate and why you think that Madison and Jefferson got free speech right?
Akhil Amar: [00:36:42] Because speech. free speech, free discourse is the absolute indispensable Sine qua non of democracy. You need really two things, reg votes, regular votes, fair votes, and- and speech voices. And you can't ... and democracy doesn't work if you don't have votes, obviously, but it also doesn't work. If you don't have free speech. If people are not allowed to say I oppose the government they're doing the ... our incumbents are doing bad things. So John Adams doesn't get it. He wasn't remember not there for the constitution. He was off in- in Europe at the time. So he's like Rip Van Winkle. He misses some things. He's the only president of our early presidents to be thrown out of office on his butt. Washington is reelected. And then leaves voluntarily as the first president. Adams is thrown out of office after four years, Jefferson wins and is re- ... after championing free speech and is reelected and then walks away. Madison wins fair and square is reelected fair and square and walks away. Monroe wins is reelected almost unanimously and walks away.
So why I ask again when they opened up the timeframe, I sort of see more interesting questions, but I start a little bit earlier. Why did Britain lose? 'Cause king George didn't listen to Americans. He didn't read American newspapers. He- he couldn't be bothered to hear what his subjects actually thought, and that's why he loses America. And George Washington is absolutely ... It's 'cause I begin the story when everyone loves George, that is George the third. In 1760, that's why another reason I begin act one scene one, everyone thinks the new king is great, and 15 years later they're gonna take up arms against him. Why? Because he's not listening to them.
George Washington saw all of that. And so he ... when he became, president said, I'm not going to shut down free speech. I'm gonna let people criticize me. I don't like it. Who likes being criticized, but I have to let people do that. John Adams is too thin skinned. And so he's the only president who's tossed out and he's tossed out because he signs his name to a bill that makes it a crime to criticize the president. And you can't do that. And not only did he sign his name to the bill, remember he shouldn't on departmentalist grounds. If it's unconstitutional, he should veto it. But he didn't, but it's not just that he doesn't veto it. He enforces it with extreme vigor and enthusiasm. He never pardons anyone who's convicted by. And when you actually see the cases, which I show the reader, they're utterly trivial, just criticize ... criticisms of government officials. The sort of thing that we see every day of the week today against the president Biden.
The- the analogy that I make is it says if today, Republican president tried to actually close down the Washington Post or a democratic president, tried to throw in prison, the- the editors and publishers for the National Review or the Wall Street Journal. You can't do that. And that's what Adams did. So he understood many things, but he didn't understand maybe the biggest thing of all the sen- ... absolute essential nature of freedom of speech. Jefferson understood it better, Madison understood it best of all. So I told you, Madison doesn't understand banks, and on that he loses. Adams doesn't understand free speech, and on that he loses. So the American people is interesting, they're wiser than- than even Madison, 'cause Madison is one for two on this. He- he gets banks wrong and speech right. Okay? And and Hamilton, is- is ... he gets banks right, but he's not so great on speech. The American people are two for two. They- they side with Madis- ... with Hamilton was ... he, he's right on national security and- and banks, which don't threaten liberty really. And they side ultimately with Madison on free speech. And they throw John Adams out of office because he actually is imprisoning critics.
And Thomas Jefferson sweeps in and pardons everyone who's been convicted under this law and he doesn't prosecute his own enemies. And again, 'cause I am a right answer person and on the 14th anniversary of the death of Adams and Jefferson, they die on the same day on the 50th anniversary of the Declaration of Independence, July 4th, 1826, very famously. And 14 years later to the day, July 4th, 1840. My book ends in 1840 on the 14th anniversary of the deaths of Adams and Jefferson who were there at the declaration and died together, who ran against each other twice.
In 1840 July 4th, Congress passes the law, paying back the fines to the people who were convicted under the Sedition Act and in the accompany reports saying it's clear, beyond doubt, that that Act we now say is unconstitutional. And everyone admits that today after the partisan intensity of the moment, dida- ... and just like I'm hoping truthfully that there will come a moment when everyone will say, oh, the storm of the capital that was wrong. And oh, actually in- in the part of the moment, people don't wanna admit you see that, that certain things are true.
But the- the benefit of- of of- of the passage of time. So yes, I'm a right answer person and ame- ... an American Congress in 1840 passed this landmark loss. And Madison was right on free speech and Jefferson and in my lifetime Jeff, maybe yours, I can't remember exactly your precise birth date, but New York times versus Sullivan, the Supreme court sides with Jeff with Madison and all of that and saying the Sedition Act was clearly an utterly con- ... unconstitutional. It's been so held by the court of history that's language from New York times versus Sullivan.
Jeffrey Rosen: [00:42:43] There's one great issue, of course, where you think that the convention got it wrong, and that is slavery. And you say that although many of the individual founders recognize the incompatibilities of slavery with natural law and principles of justice, yet the con- ... the convention made a terrible error in not setting an end date for slavery, whether it was gradual extinction or abolition or not. You say it should have set a date 1808 or 1876, but it didn't do that. And as a result, the civil, the civil war, came. You end the book by ... in your idea, by noting that your great characters had very different records on ... of their own views toward enslaved people. Franklin wrote a petition to Congress to end slavery, Washington freed his own enslaved people. By contrast, you say Jefferson and Madison, who you admire less constitutionally chose not to free their own enslaved people. What can you say about the relationship between those four men's attitude toward their own enslaved people or towards slavery and their constitutional positions?
Akhil Amar: [00:43:56] So I wanna talk about two things 'cause the book talks about two things. The constitution itself, and then some of the- the the leaders who- who helped generate the constitution. This is a book about a document and a book about people. So here's my big point about the document. The document, when it began was better than almost anything else around, he put the thing to a vote. Wow. They forgot a bill of rights, but immediately ordinary people in the ratification process said, you forgot the bill of rights, that's add one. Wow. That addition and affirms speech press petition and assembly and other things. Wow.
Declaration of Independence wasn't put to a vote. None of the state competitions in 1776 was put to a vote. So it was really impressive, but they made one huge mistake. They didn't actually put slavery on the path of ultimate extinction. And many states were putting slavery on a path of ultimate extinction. The constitution was at its best when it listens to what states were already doing, states were laboratories of experimentation and at its best, it wasn't the mind of James Madison, it was all of them looking at what the states did at their best. Later a jurist that Jeff adores, he's written a book about him, Louis Brandeis talks about states as laboratories of experimentation and at its best, the constitution saw that it- it ... states had written constitutions. They had by camera legislatures the states had- had constitutions beginning of 1776. Written constitution by camera legislature, tripartite system of government separate bills of rights in the best states.
So the US constitution is building on state practice, the best state we're getting rid of slavery. Oh, this said slavery was wrong.
I told you, but James Otis, and in the Massachusetts constitution of 1780 there's language saying everyone's born free and equal. And the 1783 that's used as a basis to get rid of slavery in Massachusetts. And New Hampshire gets rid of slavery and Connecticut and Rhode Island passed bills for gradual abolition of slavery, not just freeing slaves, getting ending slavery, which ... see the ancient world had slavery and almost all societies had slavery and- and an idea of freeing individual slaves like Banneker or in the Bible individual slaves were freed, but the idea of ending slavery as a whole abolition, that's an idea that Americans come up with. It's born in Philadelphia in 1775, the world's first abolition society and Pennsylvania, in- in 1780 passes a law providing for gradual ending of slavery. So Pennsylvania is doing it and Rhode Island and Connecticut are doing it. And New Hampshire and Massachusetts are doing it. And soon New York and- and New Jersey we'll follow suit.
But the federal constitution didn't do that. That was its big mistake. It didn't put slavery on a path of ultimate extinction 'cause the British could basically threaten American liberty and the project, but so can slavery. If you don't, if you don't end it, it will be the cancer that kills America and the framers didn't quite see it.
So one point I'm gonna say, I'm gonna tell you, and- and they didn't perfectly foreseeing the future. We today can't perfectly foresee the future. They got so many right, they got this one thing wrong. It was a pretty big thing to get wrong and you're gonna have to ... it's gonna lead to a civil war. And that's going to be a story I tell in the next volume when I start in 1840 and go all the way the next 80 years to 1920, that's gonna be called The Words That Made Us Equal, 13th, 14th, and 15th amendments. And then I'll have another book, The Words That Made Us Modern taking the story from 1920 to 2000.
So here's my point about text, text when you look at his whole is getting better. Okay. It was imperfect, but we add a bill of rights. It's better than what came before, we added bill of rights. That's better. Eventually we're gonna get rid of slavery and- and provide equality and fundamental rights. And the reconstruction project. The second founding after the civil war, women are gonna get the vote get rid of poll tax disenfranchisement. The text is getting better. This is interesting. Now that's the point about the text. Now about human beings are human beings getting better or worse. And and we've all made mistakes in our life when we can't change the past, but what we can do, and this is ... Jeff and I were friends. We often talk about like the meaning of life when we, when we talk. So we c- ... we try to be better going forward.
And the last chapter of the book, I tell the story of the founders and- and- and how they end their- their lives. And Franklin gets better. He owned slaves early on and he ends as an abolitionist, urging Congress to try to put slavery on the path of ultimate extinction. It's his last great gift to America.
His parting words, Washington, he was a pretty thoughtless or slaveholder you know, not [inaudible 00:52:20] cool, but- but very harsh actually as the standards at the time, as he, as he ages, he gets better on this and he realizes that slavery is wrong and he should do something to try to make a statement. And in his ... On his death bed and his last will and Testament, he provides for the freeing of his own slaves as a, as a quiet lesson to his fellow Americans. So Franklin gets better. Washington gets better. The story that I tell alas is that Madison and Jefferson get worse. They start out very idealistically opposed to slavery. Let's prohibit slavery in the west. Jefferson is the author of an early version of Northwest Ordinance, which will enslave ... prohibits slavery in the west. That's how he begins, but he co-founded a poli- ... in order to beat Adams, he needs to create a political party. The political party is based in the south and they've made .... and- and Madison is his partner and they make their political bed and oh, they lie in it. And their ... that political bed is a Southern ... is a pro-slavery party.
And by 1820 they're opposing prohibitions of slavery in the west, they're saying, well, we should send our slaves to the west. We should, we should spread 'em all around. And- and Madison, goes too far as to say, oh, the law prohibiting slavery in the west is unconstitutional. That's, that's gonna be what Roger Tawney is gonna say, in Dred Scott, that's preposterous. It's wrong. I'm a right answer person. This one ... 'cause the first one of the first laws, the constitution ... excuse me, the Congress passes with George Washington's signature is a law prohibiting slavery in the territories.
And James Madison spearheaded that law in 1789. And- and Thomas Jefferson was the architect of an earlier version of that law. And it said, because as they age, they become more corrupt on this issue in the Missouri compromise. And that story, honestly, I don't believe has been told by their biographers and the biographers are- are friends of mine. The great Jack Rakove, the the ... my- my great student, Noah Feldman Lynne Cheney in her, you know, otherwise thoughtful book on biography of James Madison. You've had her at the National Constitution Center, but this story of how Jefferson and Madison decline whereas Je- ... Franklin and- and Washington improve, that's the story. The constitution gets better. Not all of the framers do.
Jeffrey Rosen: [00:51:17] Dear Akhil, it is eight o'clock and like all Constitution Center events, this one must end on time. I'm loathed to close as Lincoln said, but I know that we're gonna reconvene many times in the coming years to discuss more aspects of this brilliant pathbreaking book and to take its spirit to the people of the United States and inspired by your close attention to text. The Constitution Center will put online in a great national library all of the primary texts that you write about and fulfill the founder's hopes of serving as the national university that they thought would teach constitutional principles and the habits of civil deliberation. You have inspired me on a lifelong love of the constitution. And with this book and your work, you inspire millions of Americans and- and citizens across the world to kindle to the principles of the constitution and educate themselves.
And you also inspire all of us to read. And dear Akhil, let's, the two of us continue to urge our friends to take the time to read important arguments, like the ones that you make in this book so that they can spread light and grow in wisdom. And you quote the great words of Brandeis who is himself quoting Isaiah, come let us reason together for allowing Americans of different perspectives to reason together United by our shared devotion to the constitution. Dear Akhil, on behalf of the Constitution Center, thank you so much, and look forward to our next conversation.
Akhil Amar: [00:52:53] Of course.
Jeffrey Rosen: [00:52:53] Thank you friends.
Jackie McDermott: [00:52:59] This episode was produced by me, Jackie McDermott, along with Tanaya Tauber, Lana Ulrich and John Guerra. It was engineered by David Stotz. Please rate, review and subscribe to live at the National Constitution Center on apple podcasts or follow us on Spotify. Again, if you're enjoying the show, please leave us a rating and review, it helps new listeners find out about the show and decide to tune in, so we'd really appreciate it. And as always join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
