The Bill of Rights: Creation and Reconstruction (Paperback)

~ Professor Akhil Reed Amar (Author), (Author) "The 1789 Bill of Rights was, unsurprisingly, a creature of its time..." (more)
Key Phrases: habeas clause, attenuated representation, refined incorporation, United States, First Amendment, Second Amendment (more...)

Editorial Reviews

Amazon.com Review

"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," Akhil Reed Amar writes in his introduction to The Bill of Rights. "Instead of being studied holistically, the Bill has been broken up ... with each segment examined in isolation." With The Bill of Rights, Amar aims to put the pieces back together and take a longer view of a document few Americans truly understand. Part history of the Bill, part analysis of what the Founding Fathers' intentions really were, this book provides a unique interpretation of the Constitution. It is Amar's hypothesis that, contrary to popular belief, the Bill of Rights was not originally constructed to protect the minority against the majority, but rather to empower popular majorities. It wasn't until 19th-century post-Civil War reconstruction and the introduction of the 14th Amendment that the notion of individual rights took hold. Prior to that, the various amendments to the Constitution that make up the Bill of Rights were more about the structure of government and designed to protect citizens against a self-interested regime. Yet so great has been the impact of the 14th Amendment on modern legal thought that the Bill's original intentions have almost been forgotten.

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. --This text refers to the Hardcover edition.

From Library Journal

The author (law, Yale Univ.) reminds us of the impact, flexibility, and timeliness of the Bill of Rights, the constitution within the Constitution that guarantees personal rights and shields individual freedoms from authoritarian encroachment. Amar's historical analysis enables the reader to appreciate the countermajoritarian nature of the document over time. The author's hypothesis seems to be that the Bill of Rights stands as an eternal bulwark against governmental oppression, especially the tyranny of the legislative majority. In this context, the demands of the Anti-Federalists at the 1787 Constitutional Convention for the security of individual rights and the protection of state governments dovetail with the post-Civil War legislation of the Reconstruction Congress intended to stamp out antebellum laws and discriminatory Black Codes. Amar goes to great pains to show how the 14th Amendment forced the states to apply fairly and evenly the freedoms and protections they had so ardently demanded during the post-Revolutionary era. He places legal milestones in an understandable perspective, thus making the reading accessible to a general academic audience.APhillip Young Blue, New York State Supreme Court Criminal Branch Lib., New York
Copyright 1998 Reed Business Information, Inc. --This text refers to the Hardcover edition.

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Product Details

• Paperback: 432 pages
• Publisher: Yale University Press (April 1, 2000)
• Language: English
• ISBN-10: 0300082770
• ISBN-13: 978-0300082777
• Product Dimensions: 8.2 x 5.2 x 1.2 inches
• Shipping Weight: 9.6 ounces (View shipping rates and policies)
• Average Customer Review: 4.6 out of 5 stars  See all reviews (27 customer reviews)
• Amazon.com Sales Rank: #57,520 in Books (See Bestsellers in Books)

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28 of 31 people found the following review helpful:

5.0 out of 5 stars Great Text, But The Proof is in The Endnotes!, August 31, 2001

By	Jorje Chica (Anaheim, CA USA) - See all my reviews (REAL NAME)

This review is from: The Bill of Rights: Creation and Reconstruction (Hardcover)

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.

15 of 17 people found the following review helpful:

4.0 out of 5 stars A Sound Overview of the Bill of Rights and Reconstruction Amendments, October 18, 2005

By	Ryan Setliff "InternetPundit.com" (VA, USA) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

~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.

7 of 7 people found the following review helpful:

5.0 out of 5 stars The ambiguous lessons of history, January 25, 2001

By	Brandon L. Bigelow (Reading, MA USA) - See all my reviews

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.