The Bill of Rights: Creation and Reconstruction

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Summary: Review from The Yale Political Quarterly
Review: "It is rare that a single work can so thoroughly and decisively change the way we look at a document as central to our common political life as the Bill of Rights. With The Bill of Rights: Creation and Reconstruction, Professor Amar has done just that. This book is a must-read for anyone interested enough in American politics to be reading this magazine."

For the full review by Josh Chafetz from the December 1998 issue of The Yale Political Quarterly...

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Summary: Not a static constitution after all
Review: American's conceive of the Bill of Rights as solely a protection of minority rights against a powerful majority. Amar presents a brillant reassessment of this understanding. He argues that the creation era Bill was dominated by structural concerns aimed at protecting localities from a dominering central state. After presenting a solid case for this view by examing the Bill clause by clause, Amar presents an arguement for a new conception of incorporation: refined incorporation. This view argues that the 14th amendment was intended to incorporate the Bill of rights, at least those clauses that were concerned with rights issues predominately. As a person distrustful of the dominate theories of incorporation, I found Amar's arguement to be refreshing. After presenting his theory Amar turns to an examination of how the Bill was reconstructed in the Antebellum and Civil War periods. It becomes clear that our present day individualistic reading of the bill of rights stems from the 1860s rather than the 1790s.

Amar's work represents a brillant new path of examination for understanding our complex constitutional history. His arguement demonstrates that believers in an unchanging, static constitution are mistaken. The Constitution shifts and changes over time and Amar presents a vivid account using one constitutional element.

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Summary: Amar is an [fool].
Review: I think Amar misses the boat on the entirety of his work. He fails to realize that the Bill of Rights was a document that meant to keep the governments hands OUT of the cookie jar of religion. What an [fool].

PB

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Summary: Great Text, But The Proof is in The Endnotes!
Review: Professor Amar has written an excellent analysis of the "original" understanding of the Bill of Rights and how that understanding was modified by the Civil War and the adoption of the Fourteenth Amendment.

My only criticisms are the following:

(1) Amar relies heavily on "legislative history," especially statements made by members of Congress and Senators during legislative debates. He does not, however, attempt to deal with the scholarly debate over the relevance and weight to be attached to such "evidence." As many have argued persuasively (especially Justice Scalia), how can we ever determine what the "intent" of a body as large as Congress is? And do the statements of a few legislators accurately reflect the views of their colleagues, especially when most speeches in Congress are made to almost empty chambers? And what about the more disturbing fact that many such "speeches" are actually prepared written statements inserted into the Congressional Record?

(2) Amar's tone, especially in the endnotes (I would have preferred the law-review style of footnotes), is less than civil when it comes to other scholars. His vitriol directed at the likes of Professors Fairman and Berger is astounding. Likewise, his comments on the quality of analysis and supporting evidence in other books and law review articles borders on plain meanness. This type of jousting is all too common in law review articles, especially the battles hidden in footnotes. I find this behavior uncalled for. Scholars can point out weaknesses in other people's work without (effectively) calling them idiots.

With these reservations in mind, I highly recommend this book to any serious student of the Constitution, or of American history in general.

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Summary: The ambiguous lessons of history
Review: Professor Amar's book is absolutely essential to a complete understanding of the history and future of the notion of substantive due process. Although he ostensibly writes about "The Bill of Rights," Professor Amar's focus is more correctly understood as what changes the Fourteenth Amendment and Reconstruction wrought -- or should have wrought -- in our understanding of the first ten amendments to the Constitution. Professor Amar's "refined incorporation" is perhaps the most coherent explanation yet, while his history of the drafting and ratification of the Fourteenth Amendment is the most compelling argument for a limited judicial role in defining fundamental liberties. Easily accessible for practitioner and layperson alike, this book opens the door to a broader debate about the proper role of the judiciary in protecting these liberties.

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Summary: Second Amendment ? ?Original? and ?New? Meanings?
Review: Professor Amar's position regarding "original" and "new" meanings of the Second Amendment in The Bill of Rights: Creation and Reconstruction is interesting. Many scholars, having only recently started to study this amendment, develop conclusions based on limited information. Credible scholarship involves a review of as much literature as possible and an objective presentation of all findings.

It is Professor Amar's view that the Creation era meaning of the Second Amendment was different from the meaning put forth during the Reconstruction era. The "original" amendment involved primarily a collective political right of "First-Class Citizens." The Reconstruction era meaning involved an individual right under the Fourteenth Amendment.

On page 47 the Second Amendment is compared to a "proposed amendment favored by some Pennsylvania Anti-Federalists: `[T]he people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game ....'" Amar states that "this text puts individual and collective rights on equal footing." After stating that the right to keep and bear arms is a political right, Amar states on page 49 that "... to see the un-Reconstructed amendment as primarily concerned with an individual right to hunt or to protect one's home is like viewing the heart of the speech and assembly clauses as the right of person to meet to play bridge or to have sex."

What is interesting is the "6" found after the word "sex." The note on page 329 reads, "I have been importantly influenced here by the pioneering work of Elaine Scarry. See. e.g., Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the right to Bear Arms, 139, U. Pa. L. Rev. 1257 (1991)." In footnote 34 on page 1268, Professor Scarry states, "The second amendment cannot be categorically separated from the pleasure of hunting since the European and American history of that pleasure is itself entwined with issues of distributive justice." Following this statement, several examples indicate an intertwining of hunting with bearing arms in a militia. One is the same proposed amendment from the Pennsylvania Anti-Federalists mentioned by Amar on Page 47. Another explains the value of hunting in relation to militia service: " ... shooting game as a way the population remains limber in the use of its arms." We can only assume Amar missed footnote 34 in Professor Scarry's essay.

Professor Amar provides no additional citations supporting his views about the Creation era Second Amendment. He does provide numerous citations not supporting his view in the asterisk note on page 48 and footnote 5 on page 328. He states, "There is some fuzziness at the edges ..." and "For arguments supporting a broad reading of the amendment as protecting arms bearing outside of military service, see ...." Not included are Halbrook's That Every Man Be Armed: The Evolution of a Constitutional Right (1994), Levinson's, The Embarrassing Second Amendment, 99 Yale L.J. 637, 644 (1989); and others often cited as authoritative sources for understanding the Second Amendment.

Also interesting is Amar's discussion of how Blackstone's Commentaries relate to the "new" Reconstruction meaning of the Second Amendment. On page 110 Amar states that "Blackstone's Commentaries was a runaway best-seller in the colonies." In discussing the original meaning of the First Amendment on page 32 and "Searches, Seizures, and Takings" on page 79 he cites the Appendix of St. George Tucker's edition of Blackstone's Commentaries. But on page 262 in discussing "Reconstructed Rights," Amar indicates that the Founding Fathers did not have Blackstone in mind in thinking about the "original" Second Amendment and those involved in passage of the Fourteenth Amendment did. Why does Blackstone's Commentaries and Tucker's edition of the Commentaries lend understanding to the original meaning of the First Amendment and "searches, seizures, and takings" and not to the original meaning of the Second Amendment? In §'s 199 and 200 Blackstone discussed as an "Absolute Rights of Individuals" the right to "having and using arms for self-preservation and defense." On page 300 of the Appendix to his edition of Blackstone's Commentaries St. George Tucker wrote: "The right of self-defense is the first law of nature ... Wherever ... the right of the people to keep and bear arms is under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

Professor Amar might read Halbrook's academic book or he might consider my non-academic book A Little Handbook on the Second Amendment.

Dr. Joseph L. Bass [e-mail]

Rating:
Summary: Excellent! Highly Recommended.
Review: Reviewer: Don H. Kemner from Chesterfield (St. Louis) MO

What my reading of the BILL OF RIGHTS - CREATION AND RECONSTRUCTION brought to the horizon of my awareness is first that there is not one but TWO Bill of Rights within our Bill of Rights one of the founding period and a second born out of the Civil War periods.

From a citizen political action standpoint, the Creation Bill of Rights focuses on our powers (rights) collectively speaking as political Rule. That is as the source of all political power and herein empowered to enact constitution and/or amendment and government. In a word, this is our Bill of Rights as "sovereign democrats." (But where is it in statutory procedure?)

By contrast, the Reconstruction Bill of Rights focuses on our rights (powers)--collectively speaking as political Subject. And herein we are called to obey the law of the land. Here we see ourselves called to obey and beg, plead and protest to our epresentatives for what we see our rights to entitle us to. This is our role as "mendicant democrats." (Oh, how well we know this role! Plenty of procedure and Supreme Court support to petition, to beg, plead and protest. But is that all there is to collective self-governance two hundred years after our founding? In this day of advanced telecommunications and transportation technology?)

In a word, under our Constitution/Bill of Rights we are LEGALLY both sovereign democrat and representative democrat. The tragedy is the framers provided no procedure, no institutionalization of our sovereign power, that is our power as Ruler in the central act of self-government:enacting an amendment, establishing policy and making law. All they provided us with was the mechanism of a mendicant democrat: we can beg, plead, protest and/or civilly disobey--all acts of `beggar democrats.'

This is precisely the tragedy political philosopher Hannah Arendt points to in the last chapter of ON REVOLUTION entitled The Revolutionary Tradition and Its Lost Treasure. The lost treasure is the absence of the tool to bring about revolutionary change peacefully under our Constitution: initiative for amending, establishing policy and lawmaking.

Seeing this for the first time and explained so lucidly and convincingly by Professor Amar, I will no longer be able to see the Bill of Rights (or the Constitution) in any other than this doubled-barrelled perspective.

As a bonus, Professor Amar brings to awareness the realization we, in the aftermath of the civil rights development triggered by the Civil War Reconstruction amendments, have lost touch with the Bill of Rights of the founding generation.

This benchmark study underscores, correspondingly, the task of our times to bring the Bill of Rights of BOTH our creation and our reconstruction into a MUTUALLY ENHANCING RELATIONSHIP.

This book, by way of corollary, issues a clarion call for us as sovereign democrats. It is a call to self-enact Initiative as the tool of our times to INSTITUTIONALIZE the peaceful revolution principle of our Declaration of Independence. And to bring the people into existence as a `Legislature of the People' in a partnership with representative legislative bodies which the framers crafted first and foremost for their generation... But ours is a generation of We, the People two centuries beyond. We are living in a world of advanced telecommunications technology and transportation. We are capable of advancing to a higher level of collective self-governance: initiative politics with representative politics.

My hope is that constitutional law scholars will treat this work in terms of its nature as philosophically grounded breakthrough and then continue political discourse on this higher ground achieved for us by Professor Amar in this work.

Rating:
Summary: The most penetrating book on the Bill of Rights thus far.
Review: There is no question that the Bill of Rights by Prof. Amar is an intellectual challenge to our conventional wisdom on the history and place of the Bill of Rights in our constitutional scheme. It's one of the most originally conceived and the most boldly executed reexamination of the Bill of Rights. If you are still unsure about the Bill of the Rights, Prof. Amar's book is the one you should read--right now!

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Summary: So critical to understand
Review: This book really dives deep into the swirling environment of the time the Bill of Rights was written and the book is written in a thoughtful way that gives insight into the intent of authorship.

The main premise is that the Bill of Rights was not the document of personal freedom and individualism as it has become but rather a document to protect the people from what the United States had freed itself from and that is an oppressive government. The document was never meant to be regarded in pieces but the totalitarism of articles.

Any well-researched historial book on the original intent of the Constitution's construction is a must read. Why? Because we hang onto every word with held breath for so many issues that culturally critical to us so to make an educated decision on the topic we have to be educated.

It's tough nut to crack because the document was born of independence and drunken optimism by many men who were brilliant scholars and men of pragmatic courage. Do they know how much head scratching they would conjure by leaving so much to the imagination?

I say these things tongue in cheek somewhat because I have no doubt they never imagined the society struggles we would have today and how we would look to answers in their authorship. However I honestly believe they regarded their words as no more than a springboard into the future and hoped that future generations would figure it out as we always do and freedom would still ring.

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Summary: Not 1 but 2 Bill of R - A Profound New Way To See It
Review: While neither an academic nor lawyer, I write as a serious student of American law and our constiutional and political history. I came to this book after reading four seminal articles on majority rule popular sovereignty and amendment of the Constitution outside of Article V by Professor Amar. These articles appeared in law journals between 1988 and 1994. From these I was aware of Professor Amar as a profound and meticulous constitutional law scholar. What my reading of the Bill of Rights Creation and Reconstruction brought to the horizon of my awareness is first that there is not one but two Bill of Rights within our Bill of Rights that of the founding period and that born our of the Civil War period. The former is the Bill of Rights focused on our powers (rights) as public citizens and/or as sovereign democrats and/or collectively speaking as political Ruler as the source of all political power and representative government. The latter is the Bill of Rights focused on our rights (powers) as private citizens and/or as mendicant democrats and/or collectively speaking as the political Subjects...and called to obey the law of the land. Seeing this for the first time and explained so trenchantly and convincingly by Professor Amar, I will no longer be able to see the Bill of Rights in any other than this doubled-barreled perspective. As a bonus, Professor Amar brings to awareness the realization we, in the aftermath of the civil rights development triggered by the Civil War Reconstruction amendments, have lost touch with the Bill of Rights of the founding generation. This benchmark study underscores, correspondingly, the task of our times to bring both the Bill of Rights of our creation and our reconstruction into a mutually enhancing relationship. My hope is that constitutional law scholars will treat this work in terms of its breakthrough merit and continue political discourse on this higher ground achieved for us by Professor Amar in this work.