The Bill of Rights

The Bill of Rights: Creation and Reconstruction

AKHIL REED AMAR
Copyright Date: 1998
Published by: Yale University Press
Pages: 430
https://www.jstor.org/stable/j.ctt1nprm9
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  • Book Info
    The Bill of Rights
    Book Description:

    Are the deep insights of Hugo Black, William Brennan, and Felix Frankfurter that have defined our cherished Bill of Rights fatally flawed? With meticulous historical scholarship and elegant legal interpretation a leading scholar of Constitutional law boldly answers yes as he explodes conventional wisdom about the first ten amendments to the U.S. Constitution in this incisive new account of our most basic charter of liberty. Akhil Reed Amar brilliantly illuminates in rich detail not simply the text, structure, and history of individual clauses of the 1789 Bill, but their intended relationships to each other and to other constitutional provisions. Amar's corrective does not end there, however, for as his powerful narrative proves, a later generation of antislavery activists profoundly changed the meaning of the Bill in the Reconstruction era. With the Fourteenth Amendment, Americans underwent a new birth of freedom that transformed the old Bill of Rights.We have as a result a complex historical document originally designed to protect the people against self-interested government and revised by the Fourteenth Amendment to guard minority against majority. In our continuing battles over freedom of religion and expression, arms bearing, privacy, states' rights, and popular sovereignty, Amar concludes, we must hearken to both the Founding Fathers who created the Bill and their sons and daughters who reconstructed it.Amar's landmark work invites citizens to a deeper understanding of their Bill of Rights and will set the basic terms of debate about it for modern lawyers, jurists, and historians for years to come.

    eISBN: 978-0-300-12708-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. xi-xvi)

    The Bill of Rights stands as the high temple of our constitutional order—America’s Parthenon—and yet we lack a clear view of it. Instead of being studied holistically, the Bill has been broken up into discrete blocks of text, with each segment examined in isolation. In a typical law school curriculum, for example, the First, Ninth, and Tenth Amendments are integrated into an introductory survey course on Constitutional Law; the Sixth, Eighth, and much of the Fifth are taught in Criminal Procedure; the Seventh is covered in Civil Procedure; the Fifth Amendment takings clause is featured in Property; the...

  5. PART I CREATION
    • One First Things First
      (pp. 3-19)

      The 1789 Bill of Rights was, unsurprisingly, a creature of its time. Yet because these eighteenth-century words play such an active role in twentieth-century legal discourse, we may at times forget that more than two centuries separate us from the world that birthed the Bill. Before we fix our gaze on this eighteenth-century document, let us briefly consider how nineteenth- and twentieth-century events and ideas have organized our legal thinking, predisposing us to see certain features of the Bill of Rights and to overlook others. And before we rush to examine the words that are first in our modern Bill...

    • Two Our First Amendment
      (pp. 20-45)

      The First Congress’s first two proposed amendments offer an illuminating perspective on its Third (our First) Amendment. From this perspective, we can see features of that amendment that tend to be obscured by conventional wisdom. The amendment affirms vital rights of religion and expression, but it does so with a distinctly majoritarian and localist accent.

      Let us begin by considering the second half of the amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress...

    • Three The Military Amendments
      (pp. 46-63)

      Immediately after the “Congress shall make no law” amendment, we find the following words: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As with our First Amendment, the text of the Second is broad enough to protect rights of private individuals and discrete minorities; but, as with the First, the Second’s core concerns are populism and federalism. At heart, the amendment reflects a deep anxiety about a potentially abusive federal military, an anxiety also reflected in the Third Amendment.

      PopulismWe...

    • Four Searches, Seizures, and Takings
      (pp. 64-80)

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      So reads our Fourth Amendment. How do its words and spirit fit with the rest of the Bill?

      We have already noted that the First and Second Amendments’ references to “the people” implied a core collective right, echoing the Preamble’s commitment to the ultimate sovereignty of...

    • Five Juries
      (pp. 81-118)

      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property...

    • Six The Popular-Sovereignty Amendments
      (pp. 119-134)

      In light of the strongly populist cast of the preceding amendments, it is wholly fitting that the Bill of Rights ends with back-to-back invocations of “the peoplen”:

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      The popular-sovereignty motif of the Tenth Amendment could not be more obvious. We the People, acting collectively, have delegated some powers to the federal...

  6. PART II RECONSTRUCTION
    • Seven Antebellum Ideas
      (pp. 137-162)

      Over the next six chapters, we must tackle questions like these: What is the relation between the Bill of Rights and the Fourteenth Amendment? Does the amendment “incorporate” the Bill, making the Bill’s restrictions on federal power applicable against states? If so, which words in the Fourteenth Amendment work this change? Are all, or only some, of the provisions of the first ten amendments incorporated or absorbed into the Fourteenth? If only some, which ones, and why? Once incorporated or absorbed, does a right or freedom declared in the Bill necessarily constrain state and federal governments absolutely equally in every...

    • Eight The Reconstruction Amendment: Text
      (pp. 163-180)

      No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      So reads the second sentence of the Fourteenth Amendment, a sentence around which the entire incorporation debate has swirled. For however much they disagree about everything else, all the participants in the incorporation debate agree that the answer to the debate lies in these words. In light of...

    • Nine The Reconstruction Amendment: History
      (pp. 181-214)

      The easy case for (nonmechanical) incorporation, then, rests on the plain meaning of the words of section I circa 1866. Is there anything in the legislative history of these words that contradicts this straightforward reading? On the contrary.

      Begin with section 1’s principal draftsman, John Bingham. As we have seen, Bingham had argued before the House as early as 1859 that “whenever the Constitution guaranties to its citizens a right, either natural or conventional, such guarantee is in itself a limitation upon the States.”¹ Over the next few minutes, he made clear that such “guarantees” that “no State may rightfully...

    • Ten Refining Incorporation
      (pp. 215-230)

      The easy case for incorporation cannot be easily rebutted as a matter of either text or legislative history. Nevertheless, incorporation raises many more difficulties than Black admitted. The major problem is structural: the original Bill of Rights and the Fourteenth Amendment feature very different constitutional architectures. Sensibly fitting the two together requires far more judicial artisanship—far more judgment—than Black’s rhetoric suggested.

      As we saw in Part One, the 1789 Bill tightly knit together citizens’ rights and states’ rights; but the 1866 amendment unraveled this fabric, vesting citizens with rightsagainststates. The original Bill also focused centrally on...

    • Eleven Reconstructing Rights
      (pp. 231-283)

      What would acceptance of the refined incorporation model mean in practice? What follows are suggestive but not exhaustive applications, which seek to illustrate the analytic virtues of the refined model and the kinds of insights it makes possible. As with any general framework, though, my model might yield different results if worked by another hand. Thus some readers may reject some of my applications while accepting my basic framework of refined incorporation. Even this limited agreement would be real progress: lawyers, judges, and scholars would be asking the same (and the right) questions even if they reached different answers.

      "Congress...

    • Twelve A New Birth of Freedom
      (pp. 284-294)

      Clause by clause, amendment by amendment, the Bill of Rights was refined and strengthened in the crucible of the 1860s. Indeed, the very phrasebill of rightsas a description of the first ten (or nine, or eight) amendments was forged anew in these years.

      Here, then, is a remarkable fact: before the adoption of the Fourteenth Amendment, the Supreme Court never-not once-referred to the 1791 decalogue as “the” or “a” “bill of rights.” Yet within a few years of John Bingharn’s odes to the Bill, the Court began to adopt Bingham’s terminology. Contrarians like Bingham helped change the vocabulary...

  7. Afterword
    (pp. 295-308)

    In the preceding twelve chapters I have tried to tell a tale of the Bill of Rights. I have narrated this story from a certain perspective, animated by certain premises, and constrained by certain parameters. With the tale now told, I propose to step outside my narrative and reflect on its method and scope. In the course of these reflections, I hope to note some of the debts that I owe to scholars who have come before and to flag some of the opportunities that I foresee for scholars who will come after.

    The tale I have tried to tell...

  8. Appendix: Amendments I-X and XIV
    (pp. 309-312)
  9. Notes
    (pp. 313-396)
  10. Index
    (pp. 397-411)
  11. Back Matter
    (pp. 412-412)