Evan D. Bernick (Northern Illinois University – College of Law) has posted “Alas” (Harvard Law Review, forthcoming 2026) on SSRN. Here is the abstract:
Whether written or unwritten, young or old, constitutions can’t compel the construction of institutions or the enforcement of norms any more than maps can create fences, checkpoints, or border patrols. And yet constitutions are powerful; they produce effects. Constitutional power may take the form of physical force; directions that are regarded as legitimate; or enhanced collective ability to accomplish desired ends. Like all power, constitutional power may rarely register at all, as people define the politically possible with reference to constitutions without realizing it and take their institutions and norms for granted.
Akhil Amar’s Born Equal is an effort to perpetuate the power of the Constitution of the United States. Amar believes that the United States would be better off following the Constitution—as he understands it—than doing something else. He also believes that those who revere the Constitution and advance arguments grounded in its original meaning and purposes are more likely to win the day. It’s fitting that Amar’s book is full of maps, as Amar’s project resembles those of leading nineteenth-century mapmakers: the forging of a national identity. For Amar, that identity is and ought to be grounded in what he labels “originalism.”
Amar is an engaging writer and a splendid storyteller. Alas—to borrow one of Amar’s favorite interjections—even at 736 pages, Born Equal omits too much of importance, even as it advertises itself as the definitive account of its subject matter. The result of Amar’s attempt to fit an entire century’s worth of American constitutionalism into a coherent narrative is never boring. But ultimately, it reveals more about the mapmaker than the territory. Despite Amar’s professed commitments to democracy and equality, Born Equal slights the democratic work of multitudes of people who have transformed our constitutional order without sharing Amar’s constitutional faith. And it obscures inequalities that will persist as long as the cult to which Amar demands fealty.