Akhil Reed Amar.
The Bill of Rights: Creation and Reconstruction.
New Haven: Yale University Press, 1998. xv + 412 pp. Index, About the
Author. $35.00 (cloth), ISBN 0-300-08277-0 ISBN 0-300-07379-8; $17.95
(paper), ISBN .
Scott D. Gerber , Social Philosophy and Policy Center.
One More from the Republican Revival
Law professors used to confine their scholarship almost
exclusively to the pages of student-edited law journals. In recent years,
though, it has become more common for them to write books as well. And if
a law professor happens to teach at a first-tier law school -- a Harvard,
a Yale, a Stanford, a Chicago, an NYU, a Virginia (where I went) -- the
publication of a book is typically greeted with almost as much hoopla as a
new Steven Spielberg film: conferences are organized, panel discussions
are held, and symposia are issued (in the aforementioned student-edited
law journals). However, unless a person subscribes to the view that simply
because a particular law professor is fortunate enough to teach at a
top-ranked law school that what he or she has to say is a priori
significant -- and I don't -- most of the hoopla is ill-deserved. Bluntly
stated, most law professors don't have advanced training in the field in
which they are writing -- history, for example -- and it shows. To make
the point another way, the phrase "law-office history" has become a cliche
for a reason: it expresses the truth of the matter.
This said, The Bill of Rights: Creation and
Reconstruction by Akhil Reed Amar of the Yale Law School deserves all
the acclaim it has received (and it has received considerable acclaim
indeed). Amar's book is well-written, provocative, and original. It is
also probably wrong.
Amar's thesis is that the Founders did not enact the Bill
of Rights primarily to protect individuals or minorities from the
majority, but instead drafted the amendments to protect majority rule and
states' rights against a potentially oppressive national government. It is
the Reconstruction-era amendments, primarily the Fourteenth Amendment,
Amar insists, that reconfigured the Bill as a protector of individual and
Amar spends the first part of his book, the "Creation"
half, trying to document historically his point about the Founders' Bill
of Rights and the second part, the "Reconstruction" half, trying to prove
his point about the Fourteenth Amendment. Although I agree with Amar -- as
do a number of other people (for example, David A. J. Richards of NYU Law
School ) -- that the Thirty-Ninth Congress was endeavoring to protect
in the Fourteenth Amendment the individual (natural) rights of the
American people in general and of the newly-freed slaves in particular, I
believe that Amar is wrong to suggest that the framers of the original
Bill were more republican than liberal in philosophical orientation. I
will attempt to explain why I believe this to be the case by considering
-- in increasing order of generality -- the Founders' conception of
"property," the Ninth Amendment, and political theory itself. Obviously, I
can do no more than sketch my argument in a book review, but my point
would remain the same had I had more space in which to make it.
Because I have only minor quibbles with the Reconstruction
portion of Amar's book, I won't say anything more about that portion here.
(Caveat: Readers should know that there are almost as many interpretations
of what the Thirty-Ninth Congress meant to accomplish with the Fourteenth
Amendment as there are endowed professorships at the nation's elite law
schools. In other words, there are a lot of different readings of
the most famous of the post-Bill of Rights amendments.)
Turning first to the Founders' conception of "property,"
Amar maintains that James Madison's ability to secure the protection of
private property -- a quintessential individual right -- in the Fifth
Amendment was one of the few truly liberal components of the Bill of
Rights. Amar writes:
"Following in the tradition of Charles Beard, many modern
scholars have stressed the importance of property protection in Federalist
thought. Both the Article I, section 10 contracts clause and Madison's
now-canonical Federalist No. 10 do indeed evince hostility to
redistributive legislation. But we must remember that the Bill of Rights
grew out of a marriage between Madisonian Federalism and un-Madisonian
Anti-Federalism, and many Anti-Federalists were suspicious of the 'aristocratical'
tendencies of Federalists. Of the original thirteen colonies, only
Massachusetts had a just-compensation clause in its state constitution in
1789; and Jefferson's famous Declaration of 1776 had spoken of 'life,
liberty, and the pursuit of happiness' rather than 'life, liberty, and
property.' Property protection, it seems, was more central to Madison than
to some of his contemporaries." (78-79).
In addition to underestimating the importance of private
property to the Anti-Federalists, Amar fails to appreciate that to the
Founders in general "the pursuit of happiness" was synonymous with
"property," when property is conceived in a broad sense rather than simply
as the ownership of material goods. According to John Locke -- the
liberal political theorist on whom the Founders most relied (more on this
later) -- "Property ... must be understood ... to mean that property which
men have in their persons as well as goods." Locke added elsewhere that
property involves men "united for the general preservation of their lives,
liberties, and estates."
That Thomas Jefferson was listing only "unalienable"
natural rights in the Declaration of Independence provides another
explanation for the absence of the word "property" from the famous clause
at issue. As Locke mentions in the Second Treatise, man is the
creation and, hence, the property of God. As such, every man owes a
duty to his Creator to fulfill himself or herself as an individual. To
satisfy this duty, every individual must strive to protect his life, must
strive to freely control the course of his life, and must strive to
achieve a good and happy life. "Property" in the narrow sense of ownership
of material goods is certainly indispensable if man is to satisfy his
obligation to his Creator to preserve his life and liberty and to pursue
his happiness. But as important as property is in this material sense, it
is alienable. "Life, liberty, and the pursuit of happiness" are not, as
Jefferson made clear in the Declaration. Finally, Jefferson was a
wonderful writer. "Life, liberty, and the pursuit of happiness" reads more
appealingly than "life, liberty, and property."
A look at the Ninth Amendment provides additional insights
into the shortcomings of Amar's project. Amar couldn't be clearer about
his reading of this "forgotten" amendment. He writes: "The Ninth is
said to be about unenumerated individual rights, like privacy; the Tenth
about federalism; and the Preamble about something else again. But look at
these texts. All are at their core about popular sovereignty" (121). He
then says that the "legislative history" of the Ninth Amendment "confirms"
his collectivist interpretation of its text (ibid.). Here, too, I
believe, Amar has gotten the story wrong. The Ninth Amendment provides:
"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." To me, this
language means what it says: the Amendment was intended to protect
unenumerated private rights. This fact is made even more obvious when one
considers Madison's widely-cited June 8, 1789, speech to the U.S. House of
Representatives advocating the adoption of the Bill of Rights:
"It has been objected also against a bill of rights, that,
by enumerating particular exceptions to the grant of power, it would
disparage those rights which were not placed in that enumeration; and it
might follow by implication, that those rights which are not singled out,
were intended to be assigned into the hands of the General Government, and
were consequently insecure. This is one of the most plausible arguments I
have ever heard against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded against. I have attempted
it, as gentlemen may see by turning to the last clause of the fourth
resolution [the Ninth Amendment]."
Amar doesn't discuss this speech. He -- like almost every
other scholar I have ever read on the subject -- also fails to discuss the
draft Bill of Rights written in Roger Sherman's hand that suggests, at
least to me, that the Ninth Amendment was designed to protect unenumerated
natural rights. The Sherman draft reads: "The people have certain natural
rights which are retained by them when they enter into society." Again,
the text -- and it is important to point out here that Amar claims to be a
textualist -- speaks for itself about the sanctity of natural rights.
The Sherman draft leads to the final point I wish to make
about Amar's reading of the original Bill of Rights: he has gotten the
political theory of American Founding wrong. As historians well know,
scholars have been disagreeing for years over when republicanism was
replaced by liberalism as the dominant ideology of American law and
politics. (The recent trend has been to describe the Founding as
"liberal-republican" or some other amalgam.) Amar doesn't discuss this
issue directly. Indeed, his textualist orientation makes it seem
irrelevant to his way of thinking. Although I reject, for essentially
common-sense reasons (for example, people are able to communicate with one
another), the argument advanced by many proponents of the application of
literary analysis to legal texts -- that meaning cannot be extracted from
legal texts, but can only be put into them, in other words, that the Bill
of Rights means nothing and means anything -- it is difficult to deny the
more modest claim that "texts can be interpreted only in some
'context.'" And that context, as I argue at length elsewhere, is the
natural-rights philosophy of the American Revolution: a political
philosophy that is far more Lockean liberal than classical republican.
In essence, then, Amar is merely the latest in a long line of law
professors who teach at the nation's leading law schools -- for example,
Bruce Ackerman of Yale, Frank Michelman of Harvard, and Cass Sunstein of
Chicago -- who are trying to claim that the "republican revival" in the
American regime lasted far longer than even the leading historians on the
subject appear to believe.
At the end of the day, though, my disagreement with Amar's
reading of the original Bill of Rights has little practical significance,
at least as a matter of constitutional adjudication (which is Amar's
primary concern as a law professor). After all, Amar acknowledges in part
II of his book that with the passage of the Fourteenth Amendment the bill
became the benchmark of individual and minority rights that most of the
rest of us have always thought it was. As he puts it in the book's last
line: "From start to finish this book has aimed to explain how today's
judges and lawyers have often gotten it right without quite realizing
why"(307). How one of the nation's most celebrated law professors got to
where he got on the meaning of the Bill of Rights is an equally
fascinating story and one well worth reading.
. David A.J. Richards, Conscience and the
Constitution: History, Theory, and Law of the Reconstruction Amendments
(Princeton: Princeton University Press, 1993).
. For a more detailed discussion, see Scott Douglas
Gerber, To Secure These Rights: The Declaration of Independence and
Constitutional Interpretation (New York: New York University Press,
1995), Part I.
. See Herbert J. Storing, What the Anti-Federalists
Were For (Chicago: University of Chicago Press, 1981).
. John Locke (Thomas Peardon, ed.), The Second
Treatise of Government (New York: Macmillan, 1952), secs. 173, 123.
. Ibid., sec. 6.
. The majority of the preceding two paragraphs is taken
from Gerber, To Secure These Rights, 28-29.
. See generally Bennett B. Patterson, The Forgotten
Ninth Amendment (Indianapolis: Bobbs-Merrill, 1955).
. As reprinted in Marvin Meyers, ed., The Mind of the
Founder: Sources of the Political Thought of James Madison, rev. ed.
(Hanover, NH: University Press of New England, 1983), 171.
. See Scott D. Gerber, "Roger Sherman and the Bill of
Rights," Polity 28 (summer 1996), 521-40, especially 530-31.
. See, for example, Milton H. Klein, Richard D. Brown,
and John B. Hench, eds., The Republican Synthesis Revisited: Essays in
Honor of George Athan Billias (Worcester, MA: American Antiquarian
. Sanford Levinson and Steven Mailloux, eds., "Preface"
to Interpreting Law and Literature: A Hermeneutic Reader (Evanston,
IL: Northwestern University Press, 1988), xi, xii.
. Gerber, To Secure These Rights, passim.
. For more, see Scott D. Gerber, "The Republican
Revival in American Constitutional Theory," Political Research
Quarterly 47 (December 1994), 985-95. Even Gordon Wood, the leading
figure in the republican synthesis, acknowledges that the Constitution was
liberal. See generally Gordon S. Wood, The Creation of the
American Republic, 1776-1787
(Chapel Hill: University of North Carolina Press, 1969).
Library of Congress
Call Number: KF4750.A436 1998
* United States. Constitution. 1st-10th Amendments
* Constitutional amendments -- United States
* Civil rights -- United States
Citation: Scott D. Gerber . "Review of Akhil Reed Amar, The Bill of
Rights: Creation and Reconstruction," H-Law, H-Net Reviews, January, 2000.
“[Amar] provides a fresh and thoughtful reading of the decalogue of
amendments crafted by the First Congress, and, as he argues reformulated
by the Thirty-ninth Congress through the Fourteenth Amendment…In the
course of his insightful commentary on familiar texts from the 1780’s
through the 1860’s, Amar offers observations useful to historians as well
as to the legal community that is his targeted audience.”
Kyvig, review of The Bill of Rights: Creation and Reconstruction,
by Akhil Reed Amar, Law and History Review 19 (Fall 2001):