The Bill of Rights: Creation and Reconstruction.

• Author: Hartnett, Edward A.
• Position: Review

THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION. By Akhil Reed Amar.(1) New Haven, CT: Yale University Press. 1998. Pp. xv, 412. Cloth, $30.00.

Akhil Reed Amar has been called many things, including an elitist,(3) a deconstructionist,(4) a progressive,(5) a fox,(6) and even a protector of Dirty Harry.(7) Naturally, his newest book, The Bill of Rights: Creation and Reconstruction, defies easy categorization. Cass Sunstein has dubbed the book "originalism for liberals,"(8) even though Amar himself resists being labeled an originalist.(9) As I hope to show, Amar is right to resist: The Bill of Rights: Creation and Reconstruction is more about transforming than recapturing original meaning.

One of the book's striking features is its religious tone and imagery. For example, Amar writes about "words made flesh," (p. 27) "original sin," (p. 293) and "renounc[ing] the Slave Power and all its works." (p. 294) Indeed, the overall structure of the book is itself almost biblical. As the subtitle suggests, part one of the book is called "Creation," and part two is called "Reconstruction." I suspect that part two might well have been called "Redemption" if that term had not become so associated with the violent overthrow of Reconstruction state governments by ex-confederates and their sympathizers.(10)

Although the two parts draw heavily from two articles previously published in the Yale Law Journal,(11) the overall project is far clearer in the book with the two parts conjoined. Amar's thesis is that the Bill of Rights at its creation was largely concerned with issues of governmental structure and popular sovereignty, but that the Fourteenth Amendment changed the Bill of Rights into a protector of individual liberties. Amar contends that today we unselfconsciously see the creation through the lens of the reconstruction. In part one of the book, he attempts to show us the Bill of Rights without that distortion. In part two, he strives to explain how the Fourteenth Amendment transformed the Bill of Rights. The major difference in content between the book and the articles is that the article on the Fourteenth Amendment only addressed how the First Amendment's rights of expression were transformed, while the book adds a discussion of the transformation of the rest of the Bill of Rights.(12)

This essay follows the same organizational scheme as the book. Part I of the essay describes Amar's view of the creation of the Bill of Rights, while Part II describes Amar's view of the Bill's reconstruction. Readers who want to gain a passing familiarity with Amar's arguments should start with these parts; readers already familiar with the articles on which the book is based might want to skim ahead to part II-B, where I discuss Amar's claims regarding the transformation of the Bill of Rights, or even cut to the chase in Part III, where I offer some criticisms. Most significantly, I suggest in Part III that there is a gap between Amar's methodology and his conclusions: while he provides a persuasive account of what the Bill of Rights meant in 1868, he has not, on his own methodology, provided an account of what the Bill of Rights means today.

I

Amar asks us to remove "modern blinders" that lead us to take nationalism for granted and look to the national government (and especially the national courts) to protect individuals and minorities against state government. (pp. 3-4) He reminds us that in 1760, "`Virginia' was, legally speaking, an obvious fait accompli--its House of Burgesses had been meeting since the 1620's--but `America,' as a legal entity, was still waiting to be born." (p. 5) One of the functions of colonial legislatures, Amar notes, was to monitor the central government in England, publicizing its oppression, and organizing opposition to its evils. (p. 5) Although Amar acknowledges that Federalists sought to strengthen the national government and limit abusive state government, he emphasizes the continuity of the tradition of local governments acting to "protect citizens against abuses by central authority." (p. 4) For Amar, among Madison's crucial insights was that "localism and liberty can sometimes work together." (p. 7)

With this perspective, Amar takes us to the Bill of Rights. Amar, however, does not start with our First Amendment, but rather with their first amendment--that is, the first amendment proposed by the first Congress. That amendment, which was never ratified, would have changed the original constitution's requirement that the number of representatives in the House of Representatives not exceed one for every thirty thousand, and instead required that the number equal one for every thirty thousand until there were one hundred representatives. (The proposed amendment provided a second set of rules once that size was reached, and a third set of rules once the size of the House of Representatives reached two hundred.) The point of the amendment was to respond to Anti-Federalist critiques that Congress would be too small, elite, and subject to cabal. Some targeted the size of the Senate, noting that in a body with twenty-six members, a majority of a quorum would consist of but eight Senators. (p. 11) Patrick Henry pointed out that the House of Representatives might even be worse: since each state was only guaranteed one representative and no minimum size or ratio to population was mandated in the original constitution, the House of Representatives could be as small as thirteen. (p. 12) For Amar, although their first amendment failed of ratification (by one state), it reveals the extent to which those at the creation of the Bill of Rights were concerned about ensuring that the new national government not be run by elites disdainful of their lowly constituents. (p. 11)

Before turning to our First Amendment, Amar makes a similar point about their second (our Twenty-Seventh) amendment. That amendment prevents changes in Congressional pay from taking effect without an intervening election. As Amar notes, this amendment was designed to limit the ability of Congressmen to "line their own pockets at public expense." (p. 18) Both amendments "shared a fundamentally similar outlook; both addressed the `agency cost' problem of government--possible self-dealing among government `servants' who may be tempted to plunder their `masters,' the people--rather than the analytically distinct problem of protecting minorities of ordinary citizens from tyrannical majorities." (p. 18) Having primed the reader with the first two provisions of their bill of rights, provisions that sound in governmental structure and the protection of majoritarian power against self-interested government elites, Amar then turns to the task of finding similar concerns in our Bill of Rights.

For Amar, the "historical and structural core" of our First Amendment's protection of the freedom of speech and of the press was, like their first two amendments, "to safeguard the rights of popular majorities ... against a possibly unrepresentative and self-interested Congress." (p. 21) He describes the Sedition Act as a "textbook example of attempted self-dealing among the people's agents" that was not invalidated by any court. Instead, prompted by the free speech within state legislatures, it was "adjudicated" to violate the First Amendment by a popular majority, working with and through those legislatures, in the election of 1800. (p. 23) Amar similarly links the idea of protecting popular speech criticizing the government to the long-standing rule against prior restraint, observing that prior restraints would be enforced by permanent government officials, while subsequent civil and criminal prosecutions would involve ordinary citizens, empowered as jurors to protect such a publisher. (pp. 23-24)

In this view, the rights of assembly and petition are also at their core "collective and popular" rights of the people as a whole. (p. 30) Thus the most basic way in which "the right of the people [peaceably] to assemble" can be exercised is in a constitutional convention empowered to alter or abolish government. (p. 26) Here, Amar links the right of the people to assemble with the Constitution's preamble (which might be better described as the Constitution's "ordination" clause, or even, if the name were not already taken, the "establishment" clause):

The Preamble's dramatic opening words ... trumpeted the Constitution's underlying theory of popular sovereignty. Those words and that theory implied a right of the "people" ... to alter or abolish their government whenever they deemed proper: what "the People" had "ordain[ed] and established]" ..., they or their "posterity" could disestablish at will.... To good lawyers of the late 1780s, [these were] first principles--words made flesh by the Constitution itself. The Constitution, after all, was not just a text, but an act--a doing, a constituting. In the Preamble's performative utterance, "We the people ... do" alter the old and ordain and establish the new. (p. 27) When Amar turns to the religion clauses of the First Amendment, he emphasizes that the establishment clause not only prevents Congress from establishing a national church, but also prevents it from disestablishing state establishments. (p. 32) The clause is "agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally." (p. 34) One function of the eighteenth century established churches, as Amar notes, was "imparting community values and promoting moral conduct among ordinary citizens, upon whose virtue republican government ultimately rests." (p. 44) National control over such a powerful intermediate association "obviously struck fear in the hearts of Anti-Federalists" while state and local establishments "would encourage participation and community spirit among ordinary citizens at the grass roots." (p. 45) Again, the fight protected is a collective one of local majorities against...