The Bill of Rights: Creation and Reconstruction

Through skillful interpretation and solid research, Amar both reconstructs the original thinking of the Founding Fathers and chronicles the radical changes that have occurred since the inclusion of the 14th Amendment in the Bill of Rights. The results make for provocative reading no matter where you stand on the political spectrum.

Product Description
A leading scholar of constitutional law delivers an incisive and brilliant new account of the Bill of Rights and explodes conventional wisdom about our most basic charter of liberty. Akhil Reed Amar not only illuminates the text, structure, and history of the 1789 Bill but also argues that its present character owes more to antislavery activists of the Reconstruction era than to the Founding Fathers who created the Bill.

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.


The ambiguous lessons of history   January 26, 2001
Brandon L. Bigelow (Reading, MA USA)
7 out of 7 found this review helpful

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.


Not 1 but 2 Bill of R - A Profound New Way To See It   November 15, 1999
5 out of 5 found this review helpful

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.


Not a static constitution after all   July 29, 2003
R. Price (Liverpool, New York)
14 out of 18 found this review helpful

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.


Not 1 but 2 Bill of Righs:A Profoundly New Way To See It   November 15, 1999
Don H. Kemner
2 out of 2 found this review helpful

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.