The Bill of Rights: Creation and Reconstruction
by Akhil
Reed Amar (Yale University Press, 1998, 2005), 430 pages

book cover imageAccording to conventional understanding, the primary purpose
behind the framing and ratification of the Constitution was
to preserve liberty through a form of government that provided
for a highly structured system of federalism and separation
of powers. The primary purpose behind the framing and ratification
of the Bill of Rights was to allay Anti-Federalist fears
that the Constitution did not sufficiently secure individual
rights. For that reason, the original Constitution is frequently
contrasted with the Bill of Rights in the American constitutional
system. The Constitution is viewed as being principally concerned
with the structure of government such as federalism and separation
of powers. The Bill of Rights, in comparison, is viewed as
being principally concerned with the protection of individual
rights against a potentially oppressive democratic majority.

The inclination to divide the Constitution and Bill of Rights
between structure and substance, however, obscures more about
the nature of the Bill of Rights than it discloses. In the Bill
of Rights: Creation and Reconstruction
, Akhil Reed Amar,
Southmayd Professor of Law at Yale Law School, makes an effort
to identify and remedy this constitutional myopia. Professor
Amar’s historically and textually informed examination
of the Bill of Rights reveals a decidedly more complex document
that underscores the commitment to a decentralized society
already prominent in the original Constitution. The Bill
of Rights was attentive to constitutional structure, and
reinforced the commitment to federalism and separation of
powers in the original Constitution. This system of government
accommodated republican political thought, absorbed by Americans
during the classical revival of the late seventeenth-century.
For many eighteenth-century Americans, the preservation of
republican government required public virtue, an unremitting
commitment to the good of the commonwealth. The American
War of Independence inaugurated a commitment to republicanism,
broadly understood, and the thought of the Founders is filled
with republican concern for virtue and protecting liberty.
With the framing and ratification of the Fourteenth Amendment,
however, the Bill of Rights was substantially reinterpreted
to underscore a new commitment to individual rights.

Beginning in the twentieth century, the Supreme Court has
adopted the view, called “selective incorporation,” that
the Fourteenth Amendment applies specific provisions of the
Bill of Rights to the states. Incorporation has stirred a
great deal of controversy among judges and legal scholars
because, in part, the Supreme Court has never adequately
explained the contours or limitations of the doctrine. In
general, however, incorporation has empowered the national
government to enforce individual rights against the authority
of the states. Professor Amar believes, nevertheless, that
the manner in which the Supreme Court has interpreted the
Fourteenth Amendment, which provides that no state shall “deprive
any person of life, liberty, or property, without due process
of law,” is “fatally flawed.” Proposing
a theory of “refined incorporation,” which demonstrates
some sensitivity to concerns such as federalism and separation
of powers, Professor Amar provides a new paradigm for understanding
the relationship between the Bill of Rights and the Fourteenth

The Philadelphia Convention allocated powers among the states
and the federal government in a manner that encouraged a
decentralized society. The Bill of Rights served, in part,
to make explicit what is already known by inference from
Article I, Section 8 of the Constitution: the federal government
is a government of delegated and enumerated powers, which
must not encroach upon the powers reserved to the states
or the people. Because it had no authority to interfere with
matters pertaining to free speech or the free exercise of
religion, for example, the federal government could not intrude
upon the subtle and often fragile social and legal arrangements
pertaining to such matters which evolved over a long period
of time at the state level. In this respect, the Bill of
Rights preserved the authority of local communities, often
to the disparagement of individual rights. Those rights of
free speech, press, assembly, and petition, viewed by contemporary
Americans as the paradigmatic rights of the individual dissenter
against the will of the majority, have a very different meaning
when viewed through the eyes of those who framed and ratified
the First Amendment. From the perspective of these eighteenth-century
Americans, the rights of free speech, press, assembly, and
petition were the necessary means by which citizens could
deliberate about matters concerning the good of the republic.
They also served to protect popular majorities against a
potentially indifferent, even oppressive, national government.

The Bill of Rights explicitly singles out for constitutional
recognition and protection several intermediate institutions
that afford local communities power and autonomy at the expense
of individuals and the national government—juries,
militias, and religious establishments. The First Amendment’s
guarantee, for example, that “Congress shall make no
law respecting an establishment of religion” made
explicit the allocation of powers in the original Constitution:
the federal government was prohibited from interfering with
local autonomy over matters touching on religion. This limitation
on the power of the federal government prohibited Congress
from establishing a national religion or interfering with
the number of church-state arrangements that existed in the
several states. This argument is particularly problematic
for those who defend the manner in which the Supreme Court
has interpreted the establishment clause as limiting the
authority of state governments to show preference toward
religion. Professor Amar describes the “paradoxical
effect” created by the manner in which the establishment
clause has been applied to the states: “[T]o apply
the clause against a state government is precisely to eliminate
its right to choose whether to establish a religion—a
right clearly confirmed by the establishment clause itself.”  

One of the most significant institutions in a republican
form of government, the jury, is explicitly conferred with
constitutional protection in the Bill of Rights: the grand
jury in the Fifth Amendment, the criminal petit jury in the
Sixth Amendment, and the civil jury in the Seventh Amendment.
It is commonly understood that a jury trial is intended to
provide the parties to a judicial proceeding, criminal defendants
in particular, access to a fundamentally fair process for
determining guilt or innocence. For eighteenth-century Americans,
however, the jury was one of the most important means by
which the local community could participate in the judicial
process. Through jury service, the local community could
participate in judicial proceedings, and, in exceptional
circumstances, exercise the power of jury review, the authority
to disregard a law it considered unconstitutional. The grand
jury had considerable inquisitorial authority to scrutinize
suspected misconduct by government officials, and thwart
malicious prosecutions. In Novus Ordo Seclorum: The Intellectual
Origins of the Constitution
, historian Forrest McDonald
concurs: “[T]he United States was a nation composed
of several thousand insular communities, each of which exercised
virtually absolute powers over its members through two traditional
institutions, the militias and the juries.”

The Fourteenth Amendment, which transferred significant
authority to the national government, substantially altered
this allocation of power between the national government
and thestates. This state of affairs has been instigated
by an extremely important development in constitutional law
and interpretation, the application of the Bill of Rights
to the states. The Court has provided for the protection
of individual rights against actions by state governments
by selectively incorporating those provisions of the Bill
of Rights deemed fundamental into the due process
clause of the Fourteenth Amendment. The emphasis the Court
has placed on individual rights has substantially eclipsed
the more traditional deference to the beliefs, practices,
and customs of local communities, intermediate institutions,
and autonomous associations.

Professor Amar provides an alternative to the theory of
selective incorporation, an approach he describes as “refined
incorporation.” Professor Amar’s initial examination
reveals that although individual rights of citizens were
an important component of the Bill of Rights, they were placed
alongside other rights vested in the several states and the
people. This, in Professor Amar’s view, makes it exceedingly
difficult to make certain provisions of the Bill of Rights,
such as the establishment clause, binding on the states.
In Professor Amar’s exegesis of the Fourteenth Amendment,
the most important consideration is whether a specific provision
of the Bill of Rights may be reconstructed as a privilege
or immunity of national citizenship. In Professor Amar’s
view, for example, the First Amendment rights of free speech,
press, assembly, and petition are reconstructed and applied
to the states as privileges or immunities of individual citizens.
The concept of “refined incorporation” is more
sensitive to the prerogatives of the states and many autonomous

The Bill of Rights: Creation and Reconstruction provides
a principled contribution to the debate over the meaning
of the Bill of Rights as reconstructed by the Fourteenth
Amendment. The interpretative method is especially sound
because Professor Amar engages in a close examination of
the textual and historical evidence, much of which may be
familiar to students of conservative writers like McDonald.
Professor Amar’s theory of “refined incorporation” is
particularly significant because he avoids the temptation
to interpret the concept of due process as a source of substantive
rights. Substantive due process has been the source of a
number of constitutional troubles because it permits judges
to impart their own subjective moral and ethical beliefs
into the constitutional structure. Professor Amar looks to
a more likely candidate as the source of substantive rights,
the privileges or immunities clause of the Fourteenth Amendment.
Professor Amar’s selective use of revisionist history
to support his account of the Reconstruction period is not
without its difficulties, but supplies a defensible alternative
to the anti-constitutional theories common among legal elites.

S. Devaney
is a Ph.D. candidate
in the Department of Politics at The Catholic University
of America.