Book Review

Despite his book's title, Yale University legal scholar Akhil Reed Amar does not offer a substantial history of the evolution of the U.S. Constitution's first ten amendments in The Bill of Rights: Creation and Reconstruction. Rather, he 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 so doing, Amar recasts the accepted narrative to influence the constitutional debate over the nature of federalism and the bearing of those initial amendments upon the states that has raged from the Alien and Sedition Acts to John Marshall's Barron v. Baltimore decision to fierce battles between Felix Frankfurter and Hugo Black and into our own time. In the course of his insightful commentary on familiar texts from the 1780s through the 1860s, Amar offers observations useful to historians as well as to the legal community that is his targeted audience.	1
Amar's discussion is occasioned and framed by the debate over whether the Fourteenth Amendment incorporated upon the states the obligation to abide by the federal Bill of Rights. This crucial issue of American federalism, he points out in an afterward, was configured not only by politicians, judges, and legal scholars, but by historians who helped shape understandings of the American founding and Reconstruction. The Dunning school of Reconstruction historiography gains particular credit for its role in solidifying an image of Reconstruction as the work of knaves and fools, in turn molding the Fourteenth Amendment theories of Charles Fairman, Felix Franfurter, and Raoul Berger. A better understanding of both Reconstruction and the initial effort to amend the Constitution seventy years earlier, Amar maintains, will lead to a rejection of Frankfurter's view that there was no sound basis for incorporation. However, he continues, the same sort of analysis will discredit Hugo Black's total incorporation doctrine and lead to an approach akin to but more comprehensive than William Brennan's selective incorporation, an approach that he labels "refined incorporation."	2
The inaugural effort amending the Constitution needs to be viewed contextually and holistically, Amar contends. It should be regarded as involving the interconnected rights provisions of a bill rather than as a series of separate and independent clauses as is normally the case in legal studies. The First Congress worked within a context of preoccupation with centralized power. The first two proposed amendments, setting limits on congressional district size and prohibiting Congress from raising its own salary, were integral to the twelve-amendment package approved by the First Congress. These two tend to be overlooked (indeed Justices Jackson and Blackmun both forgot about them completely) because they were not ratified, but they were given primacy by the First Congress and set the tone for an overall effort to restrain the power of the central government. What we think of as the First Amendment was actually the original Third and represented less a primal statement than a continuation of the attempt at constraint. Indeed, Amar contends that the original intent of the establishment clause was to keep the federal government from interfering with state religious establishments where they existed and, he points out, were permitted to continue. Together with the other provisions of (our) First Amendment, the establishment clause aimed at limiting the power of the central government rather than erecting an absolute wall of church-state separation. The next amendments, Two and Three, similarly focused on checking the military power of the federal government by upholding the republican right to effective state militias, guaranteeing the right of the polity to bear arms, and blocking the central government from garrisoning troops in citizens' homes. Amendments Four through Eight represented a variety of other checks on federal power, most notably by ensuring that the democratic device of the jury would counterbalance judicial authority. The Ninth and Tenth Amendments extended the curbs on the central government but at the same time complicated the argument that the original amendments could simply be incorporated upon the states. How, Amar pointedly asks, could powers reserved to the state be intended as restraints upon them?	3
John Bingham, the Fourteenth Amendment's chief architect and a proponent of a unified theory of rights, deserves as much attention, Amar maintains, as the earlier and far more renowned rights amendment creator James Madison (who had preferred to scatter amendments throughout the Constitution). Bingham's recorded public statements from 1859 through 1871 reveal a consistent desire to overturn Barron and incorporate upon the states what, contrary to Supreme Court custom at that time, he began calling the Bill of Rights. National attention had shifted from perceived dangers of central government to those of state governments (particularly white, southern ones continuing to resisted the verdict of the Civil War). A recognized need to restrain, not the central government, but the periphery was accompanied by a new sensitivity to the need for countermajoritarian protections of individual rights. In this context, Amar concludes, refined incorporation makes complete sense, while judicial rulings from Slaughterhouse to Plessy should be understood as questionable judgments that denied the original intent of the Fourteenth Amendment. He carries his contention to the logical, if provocative, conclusion that even the Second Amendment merits incorporation.	4
Akhil Reed Amar's core argument for contextualizing the Bill of Rights and the Fourteenth Amendment is valid and important, though a historian might wish that he had pursued its logic at greater length. More extensive elaboration of the historical circumstances surrounding the adoption of the initial amendments as well as the Fourteenth could, one suspects, add strength to the case and render it even more persuasive. Looking beyond the texts left by the drafters, adopters, and judicial interpreters of the amendments and coming to terms with the way in which the broader society of the day understood them would enhance comprehension of the purposes of the first twelve amendments as well as the extent to which the Fourteenth Amendment was intended by the Thirty-ninth Congress to reduce the power of state governments both over individuals and vis à vis the national government.	5
David E. Kyvig Northern Illinois University

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.