Review The Bill of Rights: Creation and Reconstruction

32 of 35 people found the following review helpful:
Great Text, But The Proof is in The Endnotes!, August 31, 2001
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.

7 of 7 people found the following review helpful:
The ambiguous lessons of history, January 25, 2001
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. Help other customers find the most helpful reviews
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15 of 18 people found the following review helpful:
By Ryan Setliff (VA, USA) - See all my reviews
~The Bill of Rights: Creation and Reconstruction~ is an informative historical exposition of the Bill of Rights and the rich republican tradition animating these protections from the impetus of the American republic. The Bill of Rights (specifically the first eight amendments thereof) are often misunderstood as it was not a positive grant of rights to the people, but it was rather a negative upon the federal government exercising restrictions upon generally-accepted common law protections, hence the phraseology "Congress shall make no law..." in the First Amendment.
When I studied constitutional law in college, I found this book to be valuable for surmising the original intent of the framers. Today, we understand constitutional liberties through the lens of federal judicial interpretation, which is often much different today than the prevailing interpretations at the time the Bill of Rights was framed. Amar opens the book by trying to remind the reader to take off their modern blinders in order to understand original intent, as the prevailing constitutional hermeneutic is rooted in nationalist ideology. Some have nationalism so ingrained in their psyche, they have difficulty fathoming that the federal government's day-to-day role in the lives of Americans was diminutive in the early years of the American republic. Concomitant to this nationalist ideology is the idea that the federal government is cast as the champion and guardian of constitutional liberties, whereas the states are viewed as the enemy of liberties that often need to be corrected by a wiser, more restrained federal government. However, at the time of the framing of the Bill of Rights, the fear was that the federal government would be the usurper. Amar succinctly explains the logistics of the incorporation doctrine and the Reconstruction Amendments which profoundly changed the application of the Bill of Rights. The great strength of Amar's book is his effort to distinguish between modern interpretations and original intent. It seems modern constitutional scholars are often apt to misconstrue original intent to laity so as to pragmatically vindicate their trendy modern interpretations of the Bill of Rights. Amar, on the other hand, is more focused on setting the Bill of Rights in its historical context while he documents the changes that came particularly with the incorporation doctrine ancillary to the Fourteenth Amendment's equal protection clause.

Amar's book devotes considerable attention to the First Amendment. Therein, he elaborates upon the first constitutional crisis which emerged following the controversial passage of the Alien and Sedition Acts. He succinctly presents the common law understanding of the freedoms of religion, speech, press, and assembly. In explaining the First Amendment, he advances the de facto states-rights reading that was prevalent in the 1790s when the Amendment was framed. Amar astutely illustrates how it was intended by the framers to essentially forbid the federal government from either infringing upon those rights, much less legislating upon matters concerning religious establishment, speech and press. Modern scholars often see the states-rights' gloss as somewhat of a nuisance, and they peel it off, and in effect disfigure the proper historical context of understanding the First Amendment, and most of the other subsequent amendments in the Bill of Rights. Amar also offers enlightening chapters: on the military amendments (i.e. Second and Third Amendments), on searches, seizures and takings (i.e. Fourth and Fifth Amendments), and juries (i.e. Fifth Amendment), and the protection of unenumerated and reserved rights (i.e. Ninth and Tenth Amendments).

Built on the Anglo-American tradition of liberties which traces itself back to the Magna Charta, the Bill of Rights was a desired Anti-Federalist counterweight to prevent a centralized state from trampling upon the cherished liberties of the people within the Anglo-American common law tradition. The application of the Bill of Rights has undergone a profound metamorphosis with the passage of the Reconstruction Amendments particularly the Fourteenth Amendment. Moreover, the subsequent incorporation doctrine emerged thereafter, and now the federal judiciary is seen as the final arbitrator and protector of the rights of the people. Ironically, the Bill of Rights was framed to prevent the federal government from usurping the rights of the people. Amar gives the reader a unique perspective on these protections around the time the Bill of Rights was originally framed. There is a cosmic irony in the fact the Anti-Federalists wanted a Bill of Rights to protect against federal usurpation of the common law rights of the people, and they like the Federalists saw the States as the protector of those rights. With the passage of time, the Bill of Rights has given the pretext that the federal judiciary is the defender and expositor of constitutional liberties. Originally, the Federalists contended that the federal government had no such powers, so the Bill of Rights was unnecessary. Alexander Hamilton even warned, "I go further, and affirm that bills of rights... are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted." One wonders where we would stand without the Bill of Rights. Would we jealously turn to the States to be the guardians of our liberties? Or in the absence of the Bill of Rights, would the greatly bloated federal government have simply gobbled up those protections by now?

Amar's book is good quality and a useful resource, but it is by no means profound. However, in an age where shoddy revisionism that maligns original intent is so prevalent, Amar's book is to be commended and is a worthwhile reference for any constitutional scholar and jurist. So, this book is useful a counterbalance to the often spurious notions of original intent purported by many modern scholars. It is for the most part objective and historically accurate. There is no revisionist spin on the Second Amendment which is so fashionable among modern statist liberals: Amar makes it very clear that republican ideology animated the amendment, and a well-armed citizenry was considered a requisite deterrent to tyranny and provided the means of throwing off oppressive and unjust government. Help other customers find the most helpful reviews
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5 of 5 people found the following review helpful:
The The Bill of Rights by Akhil Reed Amar takes an original look at the Ten Amendments to the United States Constitution that became known as the Bill of Rights. Amar, a professor at Yale University Law School, is one of the most respected constitutional scholars in the country.

His study of the famed document brings him to conclusions that have previously been ignored or unheard of. The main thesis, that the Amendments were originally designed to protect the majority, rather than the rights of individuals and minorities, is not a common view, but he has substantial evidence and research to support this conclusion.

A main focus in the book is the difference in the Bill of Rights before and after the era of Reconstruction and the addition of the Fourteenth Amendment. The role of Anti-federalism, which is a main contributor to the first Ten Amendments, is explained and elaborated on, as is Federalism and James Madison's role in the shaping of the Constitution and its Amendments.

Amar takes a clear stance on two issues, that the Amendments should be studied as a whole document and the great effect the Fourteenth Amendment had on the Bill of Rights. The book itself is split into two parts, one details the creation and history of the Bill of Rights, while the other details it after Reconstruction, the incorporation of the Fourteenth Amendment, and its change to having a role of protection of individuals and minorities.

Understanding the Bill of Rights and its role in our country today is of great value and Amar's The Bill of Rights appears to provide an accurate and informative guide. Help other customers find the most helpful reviews
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5 of 5 people found the following review helpful:
5.0 out of 5 stars Not 1 but 2 Bill of R - A Profound New Way To See It, November 15, 1999
By A Customer

This review is from: The Bill of Rights: Creation and Reconstruction (Hardcover)
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. Help other customers find the most helpful reviews
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15 of 19 people found the following review helpful:
5.0 out of 5 stars Not a static constitution after all, July 29, 2003
By R. Price "caesar_42" (Liverpool, New York) - See all my reviews
(REAL NAME) This review is from: The Bill of Rights: Creation and Reconstruction (Paperback)
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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2 of 2 people found the following review helpful:
5.0 out of 5 stars BIll of RIghts creation and reconstruction, September 11, 2009
By Lisa J. Zimmerman "Eclectic" (Raleigh North Carolina) - See all my reviews
(REAL NAME) This review is from: The Bill of Rights: Creation and Reconstruction (Paperback)
This is a very complete work that gives the entire history of the Bill of RIghts without an undertone of opinion pushing one to the left or right. Help other customers find the most helpful reviews
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2 of 2 people found the following review helpful:
5.0 out of 5 stars Remarkably insightful and interesting, April 17, 2009
By MT57 (USA) - See all my reviewsAmazon Verified Purchase(What's this?)
This review is from: The Bill of Rights: Creation and Reconstruction (Paperback)
I read this after reading Professor Amar's "The Constitution: A Biography" which is the reverse of the order in which they were written. I enjoyed that one enormously and had the same reaction here. Professor Amar does an amazing job of using historical materials and textual analysis to provide numerous insights into the meaning of the Bill of Rights. The dominant thesis of the book is that the Bill of Rights when passed in 1791 was as much to protect states from the federal government as it was to keep individual liberties intact. I was not so impressed by the textual analysis (as several of the amendments seem clearly to speak about individual liberties) but the historical work was indeed compelling. Of course I am not familiar with the entire record so cannot say what he may have left out. Then, he convincingly shows the transformation of the Bill of Rights into an instrument for protecting individual liberties in the post-Civil War amendments and the thought leading up to that. Particular insights arise in relation to the right to keep and hear arms as a fundamental individual right (much to the disappointment of gun control advocates like myself) and the way in which the First Amendment clause on establishment of religion changed over time due to territorial expansion and the abolitionist crusade from a law that initially allowed for state religions to the point where they were eliminated. Fascinating.

My biggest disappointment was that the Fifth Amendment was limited to about 5 pages, 3 at the time it was enacted and 1 at the time of Reconstruction. He characterizes the "just compensation" clause - the only Constitutional protection for private property - as something Madison "smuggled in" to the Bill of Rights. Professor Amar seems, like many academics seem, to have some aversion toward legitimizing private property, although many of the historical sources he cites list it as a fundamental right, it just seems to be one that he doesn't like being fundamental. In his afterword, in addition to discussing approvingly Bruce Ackerman's work on a "redistributive constitutional regime" effected by early 20th century amendments and Supreme Court decisions during the New Deal, he writes revealingly, "there is still room for a great book organized around concepts rather than words --'liberty', 'equality', 'democracy', 'privacy' and so forth". I guess "Property" is just another "so forth" or maybe not even a concept he wants to keep around. Help other customers find the most helpful reviews
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2 of 2 people found the following review helpful:
5.0 out of 5 stars FANTASTIC!!!, September 4, 2007
By Robert W. Smith "Robert Smith, Ph.D." (Virginia, USA) - See all my reviews
(VINE VOICE) (REAL NAME) Amazon Verified Purchase(What's this?)
This review is from: The Bill of Rights: Creation and Reconstruction (Paperback)
I saw Amar on PBS, read his book on the history of the Constitution, and was thus driven to read The Bill of Rights. Being neither an attorney nor historian, I still found this to be an excellent read. I suspect that Amar could craft a listing a postal zip codes into an enthralling book. Of course, the creation of constitutional law is a topic that sells itself (at least to me)... He uses a textual analysis. At times, it seemed that he made his point several pages earlier. Most of the time that I read this piece, I sat in front of Google and typed in a smattering of his plethora of referenced facts. The focus of his discussion is on the first 10 adopted amendments and how the 14th amendment then modified each. He mentions the others briefly. Amar might have cited books, newspapers, more speeches that would help the reader better appreciate the zeitgeist of the time and how it affected the framers of 1 - 10 and those who adopted 14. More discussion on the originally proposed 2 amendments that were not ratified and why not might have been interesting, too. I also wish that, someday, hint, Amar will take this to the next step and address current socio-political issues using constitutional textual analysis. I enjoy his work. I think that his writing continues to evolve and I look forward to future works by him. Help other customers find the most helpful reviews
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2 of 2 people found the following review helpful:
5.0 out of 5 stars Not 1 but 2 Bill of Righs:A Profoundly New Way To See It, November 15, 1999
By Don H. Kemner - See all my reviewsThis review is from: The Bill of Rights: Creation and Reconstruction (Hardcover)
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.

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