According 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 Amendment.
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 the states. 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 associations.
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.
Joseph S. Devaney is a Ph.D. candidate in the Department of Politics at The Catholic University of America.
Posted: March 20, 2007
The Light Invisible
Volume 41, Nos. 1–2 (Fall 2001)