Original Intent

As a legal scholar, I am worried about the widespread constitutional illiteracy that surrounds me, among young and old, left and right. A nation that does not understand its history is like a person who suffers amnesia. Without a strong memory of one’s own past, how can a person live a meaningful life? Without a deep understanding of our collective constitutional past, how can Americans live together? In 1860-1861, South Carolinians forgot what they had in fact agreed to in 1787-1788: an indissoluble union. And the war came.

This historical point can be recast as a legal one. Without a shared understanding of the basic rules of constitutional interpretation, how can Americans live free and thrive? Return once again to the secession question. The Constitution’s terse text and overarching structure really do prohibit unilateral secession. But to see this clearly, we need to read the document through a proper legal prism, with attention to both letter and spirit, noting how the text’s precise syntax and panoramic structure reinforce each other.

We Americans are a famously diverse and contentious lot. Today’s citizens bear myriad ethnic backgrounds and skin colors. We profess a multitude of faiths, and some profess agnosticism or atheism. We speak countless different languages. Our forebears came to this land at wildly different times and in profoundly different ways, some with bullwhips, some in chains. Some of us are male, others female, still others neither or both; some are gay, others straight, still others in between or beyond. We passionately embrace a wide range of ideologies and viewpoints.

But despite — or rather precisely because of — all these differences, there must be a common core. E Pluribus Unum. The United States Constitution and its history are what We (with a capital W) have in common, and if We don’t like the document as is, We can amend it, as indeed previous generations of Americans have made amends and amendments. This terse text and the saga that underlies it are what make us Americans. Without broad agreement on the constitutional basics — not on every detail, but on the big picture, the main narrative — we are lost. We are Babel. We are not a We. And We may ultimately lose the republic that Ben Franklin hoped we could keep.

Every four years, We must pick a president. This is a constitutional decision. We cannot make this decision well without an understanding of the presidency as an office structured by the Constitution, which both empowers and limits the person who holds this unique and uniquely dangerous post. The first thing that a president must do in office is swear an oath to “preserve, protect, and defend the Constitution of the United States.” For this system to work, an oath-taking president — and We Americans who pick that oath-taking president — must understand the basic outlines of our Constitution.

Too few law professors know history, and too few history professors know law. (Even historians familiar with the legal issues of their own main period of study often know little about the legal issues of earlier or later eras.) Quite often when I turn on the television, I hear scholars and pundits on cable TV saying silly things. On C-SPAN, distinguished Civil War historians airily opined that the Constitution of 1787-1788 was indeterminate on the secession question. Nonsense. On MSNBC, radical-chic intellectuals proclaimed that Americans revolted in 1776 mainly to protect slavery, which the British government was seeking to abolish. Ridiculous. On Fox News, pundits told viewers that the founders loathed “democracy” as a word and as a concept, and embraced only “republics,” which were always and everywhere sharply contradistinguished from “democracies.” Baloney.

Today’s Hillsdale graduates say that America’s founders never did anything wrong, and today’s Harvard graduates say that America’s founders never did anything right. (OK — that’s a gross oversimplification, but it felt good to blow off some steam.) We need facts and analysis, not reflexive right-wing boosterism or knee-jerk leftist hooting. Of course, the truth is not always and necessarily in the middle. On some issues, today’s conservatives are absolutely right on the law and the facts; on other issues, today’s liberals are 100 percent correct. But we can only decide which is which, and see when the truth is instead somewhere in between or something entirely different, once we know the key historical facts of America’s constitutional conversation and the basic legal rules for assessing those facts. And that is why studying and understanding our history, and the history of the Constitution in particular, is as urgent today as it has been in any time in American history.

Adapted from “ The Words That Made Us: America’s Constitutional Conversation, 1760-1840 ″ by Akhil Reed Amar. Copyright © 2021. Available from Basic Books, an imprint of Hachette Book Group, Inc.

Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University.

This story appears in the July/August 2024 issue of Deseret Magazine . Learn more about how to subscribe .