The Bill of Rights: Creation and Reconstruction

by Akhil Reed Amar

"This is one of the most important books about constitutional interpretation of its generation."—Jeffrey Rosen, American Lawyer

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We have as a result a complex historical document originally designed to protect the people against self-interested government and revised by the Fourteenth Amendment to guard minority against majority.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.

Genres: Law, History, Nonfiction, American History, Politics, Government, School

412 pages, Paperback

First published January 1, 1998

About the author

Akhil Reed Amar is currently Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law in both Yale College and Yale Law School. He received his B.A, summa cum laude, in 1980 from Yale College, and his J.D. in 1984 from Yale Law School, where he served as an editor of The Yale Law Journal. After clerking for Judge Stephen Breyer, he joined the Yale faculty in 1985. In 1994 he received the Paul Bator award from the Federalist Society for Law and Public Policy, and in 1997 he was awarded an honorary doctorate of law by Suffolk University. In 1995 the National Law Journal named him as one of 40 “Rising Stars in the Law,” and in 1997 The American Lawyer placed him on their “Public Sector 45" list. His work on the Bill of Rights also earned the ABA Certificate of Merit and the Yale University Press Governor’s Award. He has delivered endowed lectures at over two dozen colleges and universities, and has written widely on constitutional issues for such publications as The New York Times, The Washington Post, The Los Angeles Times, The Wall Street Journal, Time Magazine, The New Republic, and Slate. He is also a contributing editor to The American Lawyer. His many law review articles and books have been widely cited by scholars, judges, and lawmakers; for example, the Justices of the United States Supreme Court have invoked his work in more than twenty cases, and he has testified before Congress on a wide range of constitutional issues. Along with Dean Paul Brest and Professors Sanford Levinson, Jack Balkin, and Reva Siegel, Professor Amar is the co-editor of a leading constitutional law casebook, Processes of Constitutional Decisionmaking. He is also the author of several books, including The Constitution and Criminal Procedure: First Principles (Yale Univ. Press, 1997), The Bill of Rights: Creation and Reconstruction (Yale Univ. Press, 1998), America’s Constitution: A Biography (Random House 2005), and most recently, America’s Unwritten Constitution: The Precedents and Principles We Live By (Basic Books, 2012).

from http://www.law.yale.edu/faculty/amarb...

Reviews

[Jacob Lines · Rating 5 out of 5]

There is a serious problem in the way American law schools teach the constitution. They break it into little pieces and study these pieces individually, in different courses. They very rarely look at how the entire document is put together and how different parts relate to other parts and the whole. That deficiency shows up in how lawyers and judges treat the constitution.

Professor Amar seeks to address this problem in this book, in which he looks at the entire Bill of Rights.

In Part I, Amar tries to change the conventional understanding of the Bill of Rights – it was not intended to protect individual rights so much as it was to address the structure that the Constitution established. The main reason for the Bill of Rights was to protect state and local institutions from the new federal government. Juries, militias, and state-established churches were all protected. The first two proposed amendments set limits on congressional district size and forbade Congress from giving itself a raise. And, of course, the 9th and 10th amendments are all about reserving rights and power to the States and the people.

In Part II, he looks at Reconstruction – specifically, what is the relationship between the Bill of Rights and the 14th amendment? This gets into the debate over incorporation – are the rights mentioned in the Bill of Rights “incorporated” against the states through the 14th amendment? Which ones? All of them? There have been a couple of camps in this debate – total incorporation (the whole Bill applies) and selective incorporation (only some of the rights apply), with courts incorporating rights through the 14th amendment’s Due Process Clause. Amar shows through the text and history of the amendment why incorporation through the Privileges or Immunities Clause makes much more sense. He gives a lot of attention (rightly so) to John Bingham, the main drafter and advocate for the 14th amendment, and his views of what the amendment meant.

He also explained the declaratory theory of the Bill of Rights – despite Barron v. City of Baltimore, there was a sizable contingent of people that thought that the States were already bound by the Bill of Rights. They argued that the Bill of Rights does not create or define the rights that we possess, but that it merely declares that certain preexisting rights exist. I had never been exposed to this theory until I read this book. This may be one of the most important things I learned from this book.

Amar presents as his solution to the incorporation debate a theory that he calls “refined incorporation.” He starts with the idea that all of the privileges and immunities mentioned in the Bill of Rights were incorporated by the 14th amendment. But we have to recognize that not all of the Bill of Rights’ provisions were rights of citizens – some belonged to the states, so they couldn’t be incorporated against the states. So, with refined incorporation, we don’t ask whether the right is fundamental, but whether it is a privilege or immunity of individual citizens rather than of states or the public at large. He also suggests that the rights protected by the Privileges or Immunities Clause could have included basic common law or natural law rights. When engaging in this analysis, we need to look at the question as the people would have looked at it in 1866 to 1868, when the 14th amendment was debated and ratified.

This book thoroughly and brilliantly shows where the Bill of Rights came from and how it got to its current state. The understanding of it has changed greatly over time, and this book is a vital guide to understanding it historically and currently.

This is one of the 10 best books about the constitution that I have ever read.

[Ry Amidon · Rating 3 out of 5]

Unlike his masterpiece “America’s Constitution: A Biography,” I wouldn’t pick this up unless you are already pretty into constitutional law. Much denser

[Spencer · Rating 4 out of 5]

Rating decided objectively notwithstanding @Charlotte's attempt to influence

[Keith · Rating 3 out of 5]

This is actually two books in one. The first covers the original 10 (well, actually 12) amendments and the second covers the post Civil War 14th Amendment. Amar takes a holistic look at the Bill of Rights, showing how sections play off of each other and how important themes and words appear throught the Bill of Rights and the Constitution.

The first part discusses the background, the meaning (sometimes parsing each word) and questions raised by each of the first 12 amendments created by the first Congress. (Two were not passed by the states.) Amar's book shows the balance between structural issues (how the government works) and discussions of rights. The section on our 2nd Amendment is worth the price of the book itself. I learned a lot. This is an enlightening discussion and I would have rated this part of the book at least four stars, maybe even five because it is so critical.

Amar's second part is important. Put simply (perhapd too simply): The 14th amendment applies the rights outlined in the first 10 amendments to the states. In other words: Prior to the 14th amendment, the Federal government could not make laws restricting free speech, but the states could. The 14th admendment was Congress' effort to fix this, with the backdrop of the Civil War and antebellum abolition movement fresh in their minds. Incorporation is a critical issue (and a topic of discussion today as opponents of big government talk about its repeal). However, Amar's handling of this is a tedious "he said/he said" of legal theorists, judges, advocates, court cases, etc. For law or legal history students, this may be interesting, but to me it was too much detail. For the layman, this could have been done in a much shorter space.

Overall, though, this is a very good, very important book for Americans and all individuals interested in human rights. It is a worthy companion to his wonderful book about the Constitution.

[Rachel · Rating 3 out of 5]

I didn't quite finish this before it was due back at the library, but I'll definitely pick it up again. An exhaustively researched book that draws on the history and structure of the Constitution to challenge conventional thinking about whether certain rights belong to individuals or the collective "people."

[Vincent Li · Rating 5 out of 5]

Out of the three Akhil Reed Amar books I've read, definitely my favorite. It's the most scholarly, and least fluffy in my opinion.

The thesis of the book is pretty simple but compelling. Amar argues that the bill of rights as originally written and ratified were less about individual rights (in fact, they were not called the bill of rights until after Reconstruction) and more about addressing the concerns of the anti-federalists, namely states rights, and supporting majoritarian rule (this would've been more clear if Madison had prevailed and the amendments were woven into the text rather than appended at the end). To be sure, there are some rights that are definitely individual, such as the right to just compensation, due process, and 4th amendment rights. But Amar reminds us that the actual first intended amendments was an amendment increasing the size of the House and preventing Congressmen from increasing their own pay. Amar argues that this shows the primary concerns the Bill of Rights was supposed to address, the agency costs of government, and keeping a far away elite national government from ruling people (the larger the House, the more representative). Our first amendment's establishment clause was probably originally to keep the federal government from establishing or dis-establishing state churches (at the time of Ratification, about half the states had sponsored state churches). The 2nd and 3rd amendment were more about a fear of a standing national army, so they strengthened state militias which were understood to be localist institutions (by preventing national disarmament of militias and quartering). The 4th (in particular the attempted suppression of Wilkes) and 1st help protect criticism of malicious government actors (the 1st by extending legislative speech privilege to the people at large). In an interesting side note that is expanded in his later book, the Constitution a Biography, the 4th was probably originally meant only issue warrants to protect officials from trespass suits, and not meant to be an exclusionary rule (this would explain why the 4th's text has a stricter bar for warrants than warrantless searches). The jury amendments helped preserve juries as a protection of the people (and have implications about the waivability of jury trial), and state laws on jury use (the 7th amendment). The 9th and 10th amendment was simply declaring that the people remain sovereign collectively, but could delegate powers out to the states and federal government, running parallel to the Preamble. Generally, the bill of rights was animated by a fear of an elite and out of touch rule, not a majoritarian oppression (according to some interesting work, Madison's Federalist 10 was not widely cited until Beard in the 1920s).

The "rights as trumps" conception of the Bill of Rights really emerged during Reconstruction. In that struggle, it was shown that localist institutions, even through majorities can be oppressive of minorities (slaves), and the federal government was less to be feared than seen as a protector of minorities. Amar argues that Slaughterhouse was wrong, that the privileges and immunities clause of the 14th amendment was definitely meant to incorporate the bill of rights against the states (overturning Barron, which had reasonably held that the amendments did not bind the states because within the constitution, it was clear when the states were prohibited from doing something, i.e. mint currency) (he argues that some rights were meant to be reserved for citizens, while due process/equal protection were meant to apply to everyone, an argument Epstein agrees with). According to Amar, the Reconstruction Republicans saw how states had violated important rights like free speech, petition, and individual keeping of arms and how the federal government could vindicate these rights. Thus the 14th amendment subtly transformed the understanding of the bill to a largely individual understanding. The 2nd amendment was understood be an individual right to arms (in particular the right for freedman to protect themselves, alongside copious citations to Blackstone's right to individual arms bearing). The 9th and establishment clause were subtly transformed, first copied by territories that became states in their state constitutions, transforming them into individual rights understanding.

As a corollary Amar argues that total incorporation and selective incorporation are both wrong. Some parts of the bill which support federalism and majoritarian rule, (for example the 10th reserving rights to the states) cannot logically be incorporated against the states. Instead, the bill of rights must be first refined, and the individual rights understood and incorporated against the states.

In short, Amar argues that if we want to understand our Bill of Rights as a Bill of RIGHTS, we should look more to Reconstruction than obsess with the Revolution.

[Paul Gibson · Rating 4 out of 5]

This is a complicated book. The writing is nothing to brag about and you have to be a dedicated to the subject because this is in no way an introduction to the Bill of Rights. The amendments are not considered as entities in and of themselves (which is to take them out of context), they are considered in context with their times, in context with each other as well as in context with the Constitution overall.
The first half of the book carefully considers the first ten amendments (along with the first two and the last few that didn't make the cut). The second half of the book concentrates on the fourteenth amendment and how it altered the Constitution as we know it. From here the author promotes his theory "refined incorporation". The fourteenth amendment was the second amendment passed just after the Civil War (during the reconstruction era). This amendment essentially reconstructed the original Constitution as it shifted from its states rights focus to more of a personal, civil and national rights focus.
I have one complaint about the paperback layout; the margins are too close to the spine (with plenty of margin on the outside of each page). I don't like to pull open a book this far in order to read the text in the valley; be it the Mississippi or the Hudson.

[Liam · Rating 5 out of 5]

"We can now see the Fourth Amendment with fresh eyes. Searches without warrants are not presumptively illegitimate; nor does every warrantless search or seizure require probable cause. Rather, whenever such a search or seizure occurred, a jury, guided by a judge in a public trial and able to hear arguments from both sides of the case, could typically assess the reasonableness of government action in an after-the-fact tort suit. If the properly instructed jury deemed the search unreasonable, the plain words of the Fourth Amendment would render the search unlawful. The defendant official could thus be held strictly liable and made to pay compensatory and (in egregious cases) punitive damages (though he might well be in turn indemnified by the government. ... Judicial warrants, though were another matter. Precisely because they were granted by government officials in closed ex parte proceedings -- and had the effect of taking the reasonableness issue away from the jury altogether -- they had to be strictly limited. Such warrants needed to meet stricter requirements (probable cause, and so on) than mere reasonableness." (70-1)

"If wee seek a paradigmatic image underlying the original Bill of Rights, we cannot go far wrong in picking the jury. Not only was it featured in three separate amendments (the Fifth, Sixth, and Seventh), but its absence strongly influenced the judge-restricting doctrines underlying three other amendments (the First, Fourth, and Eighth)." (96)

[James Atkinson · Rating 5 out of 5]

A serious interpretation of Amendments I-X, both as originally promulgated 1791 and as incorporated against the States by the Reconstruction Amendment XIV in 1869.

Professor Amar goes to great lengths to parse the textual and legal backgrounds of each amendment, including looks back at English common law and an overview of how the amendments have been interpreted up to the present day.

His conclusion that we should pay as much attention to the Reconstruction Founders like John Bingham as we do to the Revolutionary Founders like James Madison is invigorating and worthy of follow-up attention.

Likewise, Amar's plea in the afterward (please do not skip the afterward) that we desperately need a handy collection of Reconstruction era documents in support of the Reconstruction Amendments, as we have ample collections of supporting materials for the original Constitution and the early Amendments) is a clarion call to current and future scholars that much down-and-dirty textual work remains to be done.

[Christian Lemon · Rating 4 out of 5]

Very interesting read. Akhil Amar gives a very deep full history of the development of the Bill of Rights in the Founding and Reconstruction Eras. This is written at a law school-level, but as a person with a lot of experience reading history and a basic ConLaw understanding, I didn't have too much trouble following Amar's points.

My largest complaint was there were times I felt Amar could go off on a tangent. Sometimes you would feel like this tangent was something that had already been explored earlier in the book. This made it a little harder to finish in the final third of the book.

This said, I found it illuminating and would recommend to anyone interested in ConLaw.

[Ginny · Rating 2 out of 5]

Disappointing. I don't read constitutional books every day and was looking more for answers than questions and we wanted to learn what this writer thinks. I've seen him speak and know he is very thoughtful and has good insights to our constitution and bill of rights.
That was not evident from this book. Here, the writer was more interested in telling different interpretations of things (which has a place) but it shouldn't be the end of the discussion.

[Mark · Rating 5 out of 5]

This, in combination with Mr. Amar's superb America's Constitution, should be the basis of American history classes taught in high school. Rather than n array of dates, people, battles, and trivia, an examination of how we invented ourselves, with the events around that invention as glosses, would perhaps bring about a better equipped citizenry.

[Spencer Willardson · Rating 4 out of 5]

An interesting book about the Bill of Rights and how it changed with the ratification of the civil rights amendments. It's not the type of book that I usually read, but I really enjoyed it. The language was clear enough that a non-legal scholar could understand it.

[Kyle Monsees · Rating 4 out of 5]

While a legal text, it presents an accessible thesis of the redefinition of the bill of rights by the fourteenth amendment, tracing the origins and evolutions through the laws, court cases, and statements of the key figures of the era in a way few reckon with today.

[Matt · Rating 4 out of 5]

Another classic Amar book that I think would benefit from a second, closer reading.

[Josh Muhlenkamp · Rating 4 out of 5]

This book is not so much about the rights contained in the Bill of Rights (speech, religion, searches and seizures, self-incrimination, jury trials, and so on), and more about the Bill itself, and what it means. Amar examines the Bill from two different perspectives; one of them is the perspective that is commonly referred to as "originalism," although with a bit of a twist; the other is the view of the Reconstructors.

Basically, Amar sets out to refute the idea that the Founders perceived the Bill of Rights as a protection of minority rights. Many people, including many lawyers and legal scholars, believe that the Constitution should be interpreted in the way that the Founders would have interpreted it. Amar demonstrates that this view was not concerned with minority rights, but instead was worried about states' rights and federalism.

In the second part, Amar demonstrates that the idea of using the Bill of Rights to protect minority rights did not come to be widely accepted until the Reconstruction period, following the Civil War. This makes sense: at the founding, states were considered to be less likely to be oppressive. Following the Civl War, however, there was ample proof that the states were every bit as opressive as the federal government could be, since the states, and not the federal government, had been responsible for slavery. Thus, states could no longer be relied on to protect individual rights, and the more centrist national government would have to step in.

At times, the book can be a bit difficult to read, and sometimes the textual arguments, although sensible, are difficult to follow. Additionally, while it is an interesting critique of the typical storyline, and certainly gives credit where it is due (to people such as John Bingham, who drafted the Fourteenth Amendment), he does not attempt to explain the current state of constitutional law. I understand that this was beyond the scope of his project, but it could certainly make some people less interested in reading it, if they want to be informed about the current state of the law. I recommend it as an interesting constitutional history, but not much more.

[Aaron Haberman · Rating 4 out of 5]

With its deep textual analysis of the constitution and amendment debates, this is a book intended for mostly academic audiences, and one that lay audiences will have difficulty getting into. That said, Amar is a superb scholar and he has offered some useful insights that academics and lay readers alike should chew on, particularly in light of ongoing debates about how to interpret the constitution. Amar makes a convincing argument that the founders did not intend the Bill of Rights to be the great preserver of minority or individual rights, but rather those amendments were to serve as a bulwark for the majority of Americans against the minority factional interests of a powerful federal government. It was only with Reconstruction and the emergence of the 14th amendment, that the Bill of Rights was effectively reinterpreted and recast as guarantor of minority rights that we know and cherish today. Amar grounds his analysis in a deep study of the framers of both the Bill of Rights and the 14th amendment. Arguably one of his best contributions is to raise the period of Reconstruction to the level of the founding period for understanding the meaning and power of the constitution. I particularly liked his treatment of John Bingham, who drafted section 1 of the 14th amendment, and who rightly deserves to be studied and understood in the same vein as James Madison for his impact on the constitutional system.
Again, this is a dense book that is not for those looking for a quick and easy tour of constitutional history. But for those who like to cogitate on the minutia of the constitution and the larger debates that constitutional scholars have, this is a first rate book.

[Piker7977 · Rating 3 out of 5]

Amar presents a solid narrative that involves two histories. The first looks at the original "ten" amendments to the Constitution and what their context was during the "creation." The second history uses the Fourteenth Amendment as a prism which alters the meaning behind the original ten. Excellent analysis is presented and conclusions about the changes, interpretations, and historical meanings are beneficial to the serious history reader or law enthusiast.

This book is difficult for the layman however. A casual reader may be put off by the complex narratives and extensive references to Founding Figures, Supreme Court Justices, and politicians whose backgrounds contain very little context in Amar's text. At times the writing seems to jump around quite a bit and throughout the text there are little arguments and sarcastic remarks that appear to be more accessible to the lawyer rather than the historian.

Either way this study is worth the effort. However if the reader is looking for an accessible intro to the Bill of Rights or Constitution, I would suggest looking elsewhere.

[Brian · Rating 3 out of 5]

This book was a bit heavier than I was expecting. But if you can make it through the slog of copious references to obscure court cases and the author's peculiar writing style, it is worth a read. I certainly learned a lot from it.

[Avel Deleon · Rating 4 out of 5]

Akhil Reed Amar lays out The Bill Of Rights within the context of its historical foundation. I don't know a better constitutional lawyer than Akhil. He has the talent to grab various interpretations of the Bill Of Rights and piece them together into one cohesive theory.

[April · Rating 3 out of 5]

It may seem like a boring topic, but it's actually a pretty interesting read about the ammendents of our consitution.

[Murphy Miller · Rating 5 out of 5]

the founders wanted the jury was to watch ALL of us in the justice system

[Joshua · Rating 4 out of 5]

Everything you know is wrong! Sort of.

[Craig Bolton]

The Bill of Rights: Creation and Reconstruction by Akhil Reed Amar (2000)

[Brad · Rating 3 out of 5]

Great history of the Bill of Rights, though the second half occasionally reads like a very long law review article.

[Dennis Stimson · Rating 5 out of 5]

Well worth the time. Thank you for writing this Mr. Amar.

[Kotler]

The book every american should read.

[Eric Barger · Rating 5 out of 5]

A really interesting analysis of the development of constitutional rights in the United States. Led me to read other books by Amar.

[Brent]

currently reading

[Benjamin · Rating 5 out of 5]

Essential.