THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION by Akhil Reed Amar. New Haven, Connecticut: Yale University Press, 1998. 352 pages. Cloth $30.00. ISBN 0-300-07379-8.

Reviewed by John M. Scheb II, Department of Political Science, University of Tennessee, Knoxville. Email: scheb@utk.edu.

One of the more bizarre by-products of the Clinton impeachment was the extent to which liberals and Democrats, in trying to explain why President’s Clinton’s transgressions did not rise to the level of "high crimes and misdemeanors," invoked the intentions of the Framers of the Constitution. In this context, the notion of a "living constitution" did not serve them well. Hence, they resuscitated the doctrine of original intent.

We might argue about what the Framers intended by "high crimes and misdemeanors" or any other constitutional phraseology, but it is important that we have the argument. While original intent is by no means the only legitimate criterion for constitutional interpretation, it is, after the text itself, the most important component of the "interpretive conversation" that also incorporates history, precedent and, in Holmes’ felicitous rendering, the "felt necessities of the times."

It is in this spirit that Akhil Reed Amar offers his interpretation of the intentions of those who adopted and ratified the Bill of Rights. He challenges the "Madisonian" perspective that views the adoption of the Bill of Rights as a means of protecting individuals and minorities from the tyranny of the majority. In essence, Amar argues that James Madison was ahead of his time. His concern for protecting individuals and minorities from tyrannical majorities enshrined in Federalist 10 and 51 were not, the modal concern behind the adoption and ratification of the Bill of Rights. Rather, the primary purpose of the Bill of Rights was to protect the rights of the majority from a remote and aristocratic federal government.

In a carefully crafted argument, Amar documents the Antifederalist character of the original (i.e., pre-Fourteenth Amendment) Bill of Rights. He argues in painstaking detail how the prevailing Antifederalist understanding of the Bill of Rights was reflected in each of the clauses of the First ten amendments. He places particular stress on the role of free speech and assembly, the "well-regulated militia," and the jury as populist checks on government. In discussing the First Amendment, for example, he points out that "[t]he body that is restrained is not a hostile majority of the people, but rather Congress…." (p. 21) Amar asserts that "although the First Amendment’s text is broad enough to protect the rights of unpopular minorities …, the Amendment’s historical and structural core was to safeguard the rights of popular majorities … against a possibly unrepresentative and self-interested Congress. (p. 21)

Clearly, Amar’s construction of the original meaning of the provisions of the Bill of Rights runs counter to the understanding that prevails today. Amar’s purpose is not to deny the legitimacy of the current understanding, but rather to show that it stems more from Reconstruction than from the Founding. "Our" Bill of Rights, the countermajoritarian document that protects pornographers, Klansmen, flag burners, and radicals, dissenters and heretics of all stripes, originated not so much in 1789 as in 1868 when the 14th Amendment became part of the fundamental law. In Amar’s view, Reconstruction reconstructed the Bill of Rights, indeed the entire Constitution. The Antifederalist moorings of the Bill of Rights were severed, and the national government assumed the role of protector of civil rights and liberties. In the wake of the Civil War, James Madison’s views became the cornerstone of the Constitutional order as interpreted by the dominant political culture.

In one of the most compelling sections of the book, Amar argues strenuously that the authors of the 14th Amendment did intend for it to comprehend the various provisions of the Bill of Rights and thus make them applicable to state action. Thus Amar defends the doctrine of incorporation fashioned by the Supreme Court during the age of conservative activism and brought to fruition by the Warren Court in decisions like Malloy v. Hogan (1964) and Duncan v. Louisiana (1968). Here Amar effectively takes on Raoul Berger and others who argue that the doctrine of incorporation smacks of judicial imperialism.

Although Amar is not very explicit in this regard, he writes approvingly of recent Supreme Court decisions broadening the protections of the Bill of Rights (e.g. Texas v. Johnson, the 1989 flag-burning decision). He seems quite comfortable with the exalted role that the reconstructed Bill of Rights, as interpreted by the judiciary, plays in the contemporary political drama. Ultimately, then, Amar is not an originalist. He understands that Constitutions must evolve, not only through explicit amendment, but through reinterpretation guided by historical forces, Holmes’ "felt necessities." But neither does he succumb to the unfortunate contemporary tendencies toward nihilism, relativism and subjectivism. Amar believes that the Bill of Rights has discernable meaning at any given point in history, if only one will look to the proper materials. In the final analysis, Amar’s methodology of constitutional interpretation is that of the careful historian.

In my judgment, Amar’s main contribution is to restore some balance to our understanding of the Framing of the Bill of Rights. In the modern age, we have tended to overlook or downplay the Antifederalist contribution to the establishment of our constitutional order. As Amar makes clear, the Bill of Rights originated as an Antifederalist idea, although it was embraced and modified by moderate Federalists.

Students of constitutional law, history and interpretation will want to read this book. The argumentation is thoughtful, precise and provocative. Moreover, the book is beautifully written, thoroughly researched, and meticulously referenced. Akhil Reed Amar has produced an impressive piece of scholarship that seems destined to become a staple of the constitutional bibliography.

Copyright 1995