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ARTICLES
THE SECRET HISTORY OF AMERICAN CONSTITUTIONAL
SKEPTICISM: A RECOVERY AND PRELIMINARY EVALUATION
Louis Michael Seidman *
INTRODUCTION
Over two centuries after its ratification, most Americans are still
infatuated with their Constitution. At the beginning, few would have
predicted this outcome. The Constitution was born out of bitter con-
fliCt.2 For many Anti-federalists-perhaps a majority of the country3-
* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Cen-
ter.
I owe a special debt of gratitude to Michael Klarman, who gave me many, many single
spaced pages of comments on an earlier draft of this article. I also received very helpful
comments from Adam Cox, Michael Diamond, Peter Edelman, Daniel Ernst, Deborah
Hellman, Aziz Huq, Vicki Jackson, Jerry Kang, Martin Lederman, Daryl Levinson, Debo-
rah Malamud, Allegra McLeod, Thomas Nachbar, Gary Peller, Adam Samaha, Girardeau
Spann, Mark Tushnet, Laura Weinrib, and participants at the Georgetown Faculty Work-
shop, the Duke Roundtable on the Role of Custom, Convention, and Tradition in U.S.
Constitutional Law, and the University of Virginia Legal Theory Workshop. I am grateful
to Noah Baron, Hannah Kohler, Melissa Stewart, Morgan Stoddard, Katie Wrede, and the
staff of the Georgetown Law Center Library for superb research assistance.
I See, e.g., GfK Roper Pub. Affairs & Corporate Commc'ns, The AP-National Constitution
Center Poll, August, 2012, at 5 (2012), available at http://constitutioncenter.org/media/
files/data GfK AP-NCC Poll August GfK 2012 Topline FINAL 1st release.pdf (find-
ing that almost seven in ten Americans agree that [t]he United States Constitution is an
enduring document that remains relevant today).
2 See generally PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION,
1787-1788 (2010); WOODY HOLTON, UNRULY AMERICANS AND THE ORIGINS OF THE
CONSTITUTION (2007); Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62
U. CHI. L. REv. 475 (1995).
3 For a claim that something like half the citizenry opposed [ratification], see HOLTON,
supa note 2, at 249 & n. 56. There is no way to know the views of the many women,
people of color, and people lacking property, who could not participate in elections for
the state conventions. At a number of ratifying conventions, delegate selection districts
were gerrymandered so as to overstate the power of the Constitution's supporters. See id.;
MAIER, supra note 2, at 115-16. Supporters of the Constitution cleverly structured voting
rules so that the conventions were faced with a stark choice between ratification of the
document as a whole or continuation of the unpopular Articles of Confederation. See
JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE
CONSTITUTION 96 (1996). Many people who ultimately supported the Constitution would
have preferred a middle position involving amendments to the original draft. See MAIER,](ViewImageLocal?handle=hein.journals/upjcl17&div=1&collection=&method=preview&ext=.png&size=3)
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