The Yale Law Journal

January 2022

Writing About the Past That Made Us: Scholars, Civic Culture, and the American Present and Future

Constitutional LawLegal History

abstract. In The Words That Made Us: America’s Constitutional Conversation, 1760-1840, Akhil Reed Amar writes of the parlous state of democracy in the United States. He argues that our problems are due, in part, to citizens’ failure to understand their responsibilities. The quality of our “constitutional conversation,” in which we talk about the nature of our government and our aspirations for it, is extremely poor. This is, in large measure, due to scholars’—historians’ and law professors’—unwillingness to create a “usable past” that would help Americans understand their duties to the country and to one another. He sees his book as a means of starting an enriched “constitutional conversion.” Along with his diagnosis of American malaise, Amar presents his own version of the origins of the Revolution (winding the clock back to 1760, before the more traditional starting period of 1763-1765), discusses the politically volatile 1790s, and creates portraits of the most well-known figures of that period. Amar’s presentation should start a vivid conversation about the nature of American civic life, past and present.

author. Annette Gordon-Reed is the Carl M. Loeb University Professor at Harvard University. I thank Peter S. Onuf and James Goodman for their comments on drafts and conversations about the issues posed in the book. I also thank the editors of the Yale Law Journal for their help, diligence, and great patience.


Writing the history of the formation of the United States of America began almost as soon as the country was established. It is not surprising that people at the time would quickly seek to make a record of and, if possible, explain the events that had disrupted the operations of one of the world’s great powers—Great Britain—while also involving its perennial rival, the second great power—France. In 1776, the American colonists had declared their right to take their place “among the powers of the earth,” putting a new country on the map.1 However, some of the leading lights of the era were skeptical of efforts to capture what had happened during the conflict. Writing to John Adams in August of 1815, Thomas Jefferson said: “You ask who shall write [the history of the American Revolution]? who can write it? and who ever will be able to write

As he addressed the question of future writing on the Revolution, Jefferson cited one historical work on the Revolution that he considered to be marred by the author’s tendency to “put his own speculations and reasonings into the mouths of persons whom he names, but who, you & I know, never made such speeches.”3 Despite his criticism of this particular book, Jefferson was realistic about the prospects of future historical accounts of the Revolution. Though they would inevitably contain imperfections, histories of so momentous a thing would have to be written. In the end, Jefferson pronounced the work he referenced “a good one, more judicious, more chaste, more classical and more true than the party diatribe of Marshall,”4 referring to Chief Justice John Marshall’s biography of George Washington.5

David Ramsay’s The History of the American Revolution (1789) is considered the first complete history of the conflict.6 Ramsay had served in the South Carolina Assembly and had been a soldier in the Continental Army.7 It was while representing South Carolina in the Confederation Congress, at the beginning of the 1780s, that he began to work on the book.8 Ramsay’s experiences put him at an important vantage point to view how the Revolution and its immediate aftermath had unfolded. Like all historians, he was writing in a context that shaped his understanding of how to present the story he wished to tell and what he thought his fellow Americans needed to hear at that particular moment.

In Whose American Revolution Was It?: Historians Interpret the Founding, historians Gregory H. Nobles and Alfred F. Young commented on this aspect of writing history, noting that, “[i]nevitably, the historian’s life exists within history itself.”9 Citing English historian Edward Hallett Carr, they continued, “The historian, before he begins to write history, is the product of history.”10 While it is also true that some moments are more “historic” than others, one can say that the history people are living is more present and discernible to them. Ramsay was in a singular moment: a new citizen in a fledging republic comprising thirteen separate colonies precariously stitched together.11 Not surprisingly, he decided to present the Revolution as a heroic struggle against a British Empire that had trampled upon the constitutional rights of people who had been loyal British subjects.

Not long after Ramsay’s effort, Mercy Otis Warren wrote her own history of the Revolution, similarly heroic in tone. Warren was the sister of James Otis, a member of the Massachusetts General Court and a well-known supporter of the American patriot cause. Otis was most famous for arguing Paxton’s Case against the use of writs of assistance that allowed British customs officials, seeking to combat smuggling, to search anywhere at any time, a practice so reviled that the Framers of the American Constitution created the Fourth Amendment to prohibit the use of these types of “general warrants.”12 Mercy Warren was influenced by her brother’s example and that of her husband James Warren, who was also involved in politics and the Revolution.13 Mercy Warren was a close friend of Abigail Adams and her husband John Adams.14 So, like Ramsay, she had a personal involvement with the Revolution that colored the history that she published in History of the Rise, Progress, and Termination of the American Revolution.15

Contexts change, however, and the study of history is the study of change over time. As the Revolution receded beyond the lifetimes of would-be historians who had lived through it, new schools of thought about the causes and nature of the conflict came to the fore. Focusing on “the scholarship of the last three quarters of the twentieth century,” Nobles and Young delineated the “successive schools of interpretation” in which historians have sought to explain the American Revolution and the constitutional order that arose after it.16 Young identified five major interpretive schools that dominated writing about the Revolution for most of the twentieth century:

the Progressive interpretation[,] more or less dominant to about 1945; the consensus or counter-Progressive view, sometimes called the ideological interpretation of the Revolution, which emerged in the 1950s and ’60s to dominate the field; the “new social history,” which accelerated in the 1970s and ’80s, devoted to long-range trends in early American society; the “New Left” history that ran parallel with it, arguing for examining the Revolution as a whole from the bottom up; and the diverse efforts in the 1980s and early ’90s to synthesize the many strands of what had become very large bodies of scholarship.17

Expanding on that list of historical interpretations, historian Michael D. Hattem has dubbed our present moment the “Neo-Progressive . . . Founders Chic” Era, in which sharp critiques of the motives of the men dubbed “Founders” coexist with celebratory accounts of these figures written for the general public.18

Into this rich progression comes Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University and one of the most acclaimed scholars of his generation. Significantly, Amar writes not only for his fellow academics, but for general audiences. He is particularly well suited to take on the subject matter of his latest very lively and provocative work, The Words That Made Us: America’s Constitutional Conversation, 1760-1840,which is specifically designed to reach the American public.19

Two firm opinions drive the arguments in The Words That Made Us: first, that historians have a responsibility to provide a “usable past” for the general public that will help inform their civic participation; and second, that historians, in the most recent decades, have failed to fulfill that responsibility, with calamitous results for the country’s civic health. There has been much justifiable handwringing of late about the current state of American democracy. The extreme polarization of the American electorate, the fact that one of the major parties has made itself over in the image of a man who is no friend of republican government, and the Fourth Estate’s seeming enchantment with the whole spectacle indicate that Amar is exactly right to be worried: the country is in a perilous position. So, what is to be done? Amar believes that history, if written the right way, can play an important role in putting things right.

This Book Review assesses Amar’s description of our current state and his prescription for dealing with this moment of civic decay. It analyzes both Amar’s critique of the current state of the historiography of the American Revolution, as well as his book’s substantive contributions to the historical account of that event. Part I addresses Amar’s vision for the book—namely, to help provide a usable past for the American public—and interrogates the utility and desirability of the concept. Part II analyzes Amar’s approach to constructing a usable past, including his criticism of historians and legal scholars. Part III turns to Amar’s historical contribution overall, which illuminates the “constitutional conversations” that took place at the Founding. It assesses Amar’s discussion of the origins of the Revolution, along with his treatment of the Articles of Confederation, the “constitutional conversation” surrounding the Philadelphia Convention, and the most prominent participants in the dialogue. Finally, the Review concludes with an assessment of the place that The Words That Made Us might occupy in the ongoing historiography of early America.