Customer Reviews

The Bill of Rights: Creation and Reconstruction

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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.

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.

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.

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.

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.

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.

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.

Whether you're a lawyer or just someone interested in the American constitution, this is the book to read. I understand that it's being assigned in law schools across America: it belongs in high schools and colleges, too. Anyone who wants to understand how American history, law and politics relate must read this book.

"It is rare that a single work can so thoroughly and decisively change the way we look at a document as central to our common political life as the Bill of Rights. With The Bill of Rights: Creation and Reconstruction, Professor Amar has done just that. This book is a must-read for anyone interested enough in American politics to be reading this magazine."

For the full review by Josh Chafetz from the December 1998 issue of The Yale Political Quarterly...

There is no question that the Bill of Rights by Prof. Amar is an intellectual challenge to our conventional wisdom on the history and place of the Bill of Rights in our constitutional scheme. It's one of the most originally conceived and the most boldly executed reexamination of the Bill of Rights. If you are still unsure about the Bill of the Rights, Prof. Amar's book is the one you should read--right now!