What's the Matter with Akhil Reed Amar (2022 Edition)

"I know Sam Alito." Oh. OK then. Thanks.

TEMPORARILY UNLOCKED

The constitutional scholar Akhil Reed Amar, long beloved of liberals—I recall talk of Obama’s maybe nominating him for the Supreme Court—entered the ongoing public discussion of the draft Alito opinion overturning Roe v. Wade the other day, shocking and dismaying his fanbase by praising the opinion and criticizing Roe. To some, that’s exactly the tough-minded impartiality, with a commitment to logic unswayed by political considerations, that one wants to see in one of our great thinkers on the Constitution. To others, it's a betrayal.

I have an advantage over some of my fellow supporters of what are now called reproductive rights. I can’t be cast down or disillusioned by Amar’s take on the draft opinion. He’s not only a leading scholar but also a leading framer of popular ideas about the nation’s origins and purposes, so I started following him closely on related matters a long time ago, and despite his manifest braininess and learning, I’ve never been able to put any stock in his views of the national founding, set out at some length in his book America’s Constitution: A Biography. Almost pathologically above the actual frays of the past, yet forever beating dead historiographical horses, lost in a performance of hyperrationality and thereby able to say quite assertive things without, supposedly, exposing the kind of emotion that might suggest bias, Amar persistently frames the origins, purposes, and development of the Constitution in light of a liberal national-progress story that has marked—to me, fatally marred—our civics for many generations.

To achieve his effects, he’s had to blur, ignore, wave away, and misconstrue all of the day-to-day politics in the messy actual history of nation-making. Drawing a perfect circle of dissociation around the American past, he conjures a fantastical complacency built on the idea of progressive national greatness.

One result, highly political, is just what we’re seeing now: his support for Alito.

I’d expect you to take my criticism of Akhil Reed Amar with a grain of salt. He’s a leading scholar, Yale-on-Yale-on-Yale, and all that that entails. I’m—shall we say—not. Yet I have a feeling that some BAD HISTORY subscribers will be interested in considering, at least, how Amar’s support for the Alito draft represents no aberration in his thinking at all, and how that consistency reflects disasters inherent not in conservative but in liberal tropes.

The Wall Street Journal op-ed, in which Amar causes pain for some of his Obama-era fans, is paywalled, but you can get an even better sense both of his points and of his overall public vibe, for free, in an interview he gave Bari Weiss for her podcast, “Honestly”; I’ll link to the interview in “Further Reading,” below. Hearing Amar speak has always been key to my sense of where he’s coming from. If you’re not soothed nearly to sleep by his all-too-deliberately-paced ASMR radio voice, you’re not quite getting him. If you don’t feel brutally patronized by it, you’re not getting him either.

He’s like a hypnotist. Only infuriating.

You can read the article and listen to the interview, so here I’m going to hit one point, which I think is important, based on the interview. Much is made there of Amar’s being “anti-Roe but pro-choice.” Amar makes clear in the interview that he thinks nobody lacking a legal education can grasp any of this stuff, but it’s actually no great trick, for those who have read it, to question some of the thinking in Roe v. Wade and still believe states shouldn’t be allowed to make laws preventing early-term abortion. The gee-whiz self-congratulation—“wow, a nuanced thinker for a change!”—amounts to nothing but culture-war static, and any real issue in “anti-Roe but pro-choice” would have to come down to whatever Amar means by pro-choice.

He says he means that while he remains acutely sensitive to “the sanctity of innocent, unborn human life,” a woman, not government, should determine whether she should end her pregnancy. He presents that position, regarding what government shouldn’t do, as solely personal, and he supports it with reference to a situation involving medical distress of a fetus, reminding us with characteristically fervent, quiet eagerness that some abortions are obtained by people who desperately wanted to get pregnant and are crushed to be informed by a doctor that the fetus won’t be viable or will have defects. An abortion, Amar says, can offer such a person the chance of getting pregnant again and “giving birth to an innocent unborn human life that will actually survive.”

And that’s about it, regarding his personal preference for states’ not prohibiting abortion. He plows right ahead to explain why he thinks his purely personal preference isn’t constitutionally protected—I’m failing to give a sense of his elaborately clarifying everything for the Great Uninformed, so I’ll stop now—and I think he’s right about that distinction, because having just distracted us with a tale of woe and uplift about a woman who wants, evidently above all else, to carry a pregnancy to term, he’s deliberately muddled what “choice,” whether constitutionally protected or not, means in the context of Roe.

And that’s not something you need a legal education to see.

Nobody else ever thought the idea of choice that Amar throws out in the interview is what Roe v. Wade protects. We all thought—whether we approved of it or not—that if a constitutional protection exists, it’s meant to apply equally to someone in the situation Amar so poignantly invokes and to someone who hated the idea of getting pregnant, let alone giving birth, went ahead and had a lot of the kind of sex that can lead to pregnancy anyway, and got pregnant, maybe quite often. It would apply equally to all other pregnancy situations too. His personal idea of pro-choice, in which an embattled Angel in the House yearns for nothing more than to serve as the vessel for a sanctified innocent human life, is indeed, as he suggests, his own business, not mine or the Constitution’s. So who cares, really, about this pro-choice-but-anti-Roe branding exercise?

It’s a classic example of how Amar sets up arguments by not arguing. He would vote pro-choice in his state, he says, so of course he doesn’t really try to make an outright case that, in his personal opinion, “choice” refers only to the particular situation he’s gone out of his way to invoke. He’s not an idiot. That example isn’t even intended as argument. It’s just some razzle-dazzle that enables him to use the term “sanctity of innocent unborn human life” a lot—he also keeps saying “honestly” to Weiss, cloyingly linking their brands—and associate himself with a view of choice possibly less offensive to conservatives than what he knows the term really means.

Where I received my education—I admit it wasn't a legal one—that was called bullshitting.

There’s a lot to wrestle with in the argument Amar goes on to advance. Setting objections to Roe in the context of praising the liberal Warren Court, per Alito’s footnote, he presents those cases as derived directly from constitutional text.

And it's not for me to do the wrestling, given my lack of a legal education. I mean it. Amar is committed to the notion that, bottom line, the system would make sense and work well if only the Constitution were read properly. Based on a lot of history that his approach perpetually sends up in smoke, I’m not. We can’t argue about a priori like that. Let’s just say that when it comes to legal argumentation regarding federalism, he’s quite likely to turn out to be more or less right.

But what does his being right do for anyone? A true conservative would say “Nothing, and that’s the way it is and should be. Toughen up.”

But Amar is a liberal. And I mean he's an Obama liberal. For him, things have to be getting better and better for more and more people all the time because of something fundamental to our unique system of government, and wherever they're not, it can only be because something hasn’t been properly . . . understood.

So he foresees, with the Constitution properly understood, and Roe thereby overturned, the emergence of whole new degrees of American unity and tolerance.

Yes, he does, too. Go ahead and listen to the interview.

Red people will live in red states, blue in blue. Somebody who wants an abortion will just pop over to another state to get it (so they can bear more and more children?). And the greatest thing of all: the culture war will finally start getting tamped down.

If you can’t see that happy day on the horizon, you must not have a legal education.

It’s a hell of a drug.

___________

Further Reading

The Wall Street Review editorial.

The “Honestly” interview. Something I didn’t get to above: Amar’s response to Weiss’s pressing him on the question of the anti-Roe justices’ misleading confirmation testimony. She’s good on this, and his answers are further revealing. (One of them is the oh-so-reassuring, fancy dinner-party “I know Sam Alito.”)

I tried to warn you people about Amar ten years ago, but did you listen? This archived post from my old blog is one of three on Amar’s historiographical denialism; the other two are linked at the top of the post.