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Summary
Summary
This study illuminates the text, structure, and history of the clauses of the 1789 Bill of Rights, and looks at their intended relationships to each other and to other constitutional provisions. The author also looks at the changes brought about by the introduction of the Fourteenth Amendment.
Reviews (3)
Kirkus Review
First, he says, the practice of interpreting the Constitution as if clauses are discrete entities rather than part of a whole obscures how the Bill contributes to the establishment of popular sovereignty as well as protecting individual rights: ``The genius of the Bill was not to downplay organizational structure but to deploy it; not to impede popular majorities but to empower them.'' Second, the impact of the Fourteenth Amendment has been so great on 20th- century legal minds that we now view the Bill only in post-Reconstruction terms, obscuring its original meaning. Amar proceeds by exploring the Bill of Rights as a historical document, stripping away presuppositions that have been added over the years and unveiling the intent of its authors in a clause-by-clause analysis. He then considers the implications of the Fourteenth Amendment for the Bill and specifically the problem of incorporation, i.e., to what extent the Bill is to be applied to actions of state, not just federal, governments. Amar assesses the alternative positions of Suspreme Court justices Frankfurter, Black, and Brennan, then returns to the work of 19th-century jurists to produce his own ``refined'' theory of incorporation. This is a more subtle approach to incorporating the Bill than he finds among 20th-century jurists, and he proceeds to use it as a guide in reconstructing the meaning of the postFourteenth Amendment Bill of Rights. The result enhances the reputation of the Reconstruction generation, for they ``took a crumbling and somewhat obscure edifice, placed it on new, high ground, and remade it so that it truly would stand as a temple of liberty and justice for all,'' even though the implications in practice are minimal. Impressive legal hair-splitting that may strike general readers as pointless.
Choice Review
As the author of a well-respected textbook on criminal procedure and of many law review articles, Amar (law, Yale Univ.) is well qualified to present this new look at the nation's Bill of Rights. In part 1 Amar challenges the traditional and prevailing notion that the Constitution itself is concerned mainly with structure, the Bill of Rights with individual freedoms. Rather, he contends that structural ideas were very much on the minds of the Bill of Rights' advocates. For example, the Bill of Rights enabled local governments to prevent federal abuse and enhanced the structural institution of the jury trial. In part 2 the author focuses on the effect of the 14th Amendment on the Bill of Rights. In part he critiques Hugo Black's "total incorporation" doctrine, William Brennan's "selective incorporation" theory, and Felix Frankfurter's "fundamental fairness" principle. Amar contends that the key question to ask about this subject is whether a given provision in the Bill of Rights guarantees a privilege or immunity of individual citizens rather than a right of states or the public at large. The book is carefully written and contains a rich, ample set of footnotes. Highly recommended for upper-division undergraduates, graduate students, and faculty. R. A. Carp; University of Houston
Library Journal Review
The author (law, Yale Univ.) reminds us of the impact, flexibility, and timeliness of the Bill of Rights, the constitution within the Constitution that guarantees personal rights and shields individual freedoms from authoritarian encroachment. Amar's historical analysis enables the reader to appreciate the countermajoritarian nature of the document over time. The author's hypothesis seems to be that the Bill of Rights stands as an eternal bulwark against governmental oppression, especially the tyranny of the legislative majority. In this context, the demands of the Anti-Federalists at the 1787 Constitutional Convention for the security of individual rights and the protection of state governments dovetail with the post-Civil War legislation of the Reconstruction Congress intended to stamp out antebellum laws and discriminatory Black Codes. Amar goes to great pains to show how the 14th Amendment forced the states to apply fairly and evenly the freedoms and protections they had so ardently demanded during the post-Revolutionary era. He places legal milestones in an understandable perspective, thus making the reading accessible to a general academic audience.ÄPhillip Young Blue, New York State Supreme Court Criminal Branch Lib., New York (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
Table of Contents
Acknowledgments | p. ix |
Introduction | p. xi |
Part I Creation | |
1 First Things First | p. 3 |
2 Our First Amendment | p. 20 |
3 The Military Amendments | p. 46 |
4 Searches, Seizures, and Taking | p. 64 |
5 Juries | p. 81 |
6 The Popular-Sovereignty Amendments | p. 119 |
Part II Reconstruction | |
7 Antebellum Ideas | p. 137 |
8 The Reconstruction Amendment: Text | p. 163 |
9 The Reconstruction Amendment: History | p. 181 |
10 Refining Incorporation | p. 215 |
11 Reconstructing Rights | p. 231 |
12 A New Birth of Freedom | p. 284 |
Afterword | p. 295 |
Appendix Amendments I-X and XIV | p. 309 |
Notes | p. 313 |
Index | p. 397 |