Rewriting the Founders

Ever since Professor Woodrow Wilson laid it down as an article of Progressive faith that the (original) Constitution was inadequate to the tasks of modern governance, academic scriveners have leveled whole forests to conform its provisions with what Justice Oliver Wendell Holmes once called the “felt necessities” of the times. These “necessities,” by a curious coincidence, have almost always matched the policy preferences of intellectuals, who tend to see the Constitution as a kind of perpetual work-in-progress, an instrument ever open to their expert ministry.

In the first phase of Progressive reform, beginning in the closing decades of the nineteenth century, the revisionist agenda focused on populist political and social legislation, diverse formulas for economic redistribution, and the establishment of a tutelary national government. Reformers pursued these goals for the most part by means of legislation or constitutional amendment, not yet having enlisted the judiciary as an active agent of their cause. All that changed, however, during the second phase, after the Supreme Court surrendered to the policy enthusiasms engendered by the New Deal. Certain Progressive historians prepared the intellectual ground for this transition, arguing with varying intensity (and inaccuracy) that Mr. Madison’s Constitution was, in effect, an elaborate hoax, an instrument whose nominal republican sentiments masked a deeper, sinister intent to protect the political and economic power of the ruling classes.

In this view, the celebrated features of the Schoolboy’s Constitution-federalism, separation of powers, bicameralism, staggered elections, and the like-became artful contrivances to frustrate popular will. Somewhat later, critics revised and extended this thesis to emphasize the allegedly racist and, of course, sexist character of the Founding. In the third phase, which came to full flower in the decades following the New Deal revolution, an altogether new conception of the Constitution emerged, which broadened the reform agenda to include, inter alia, eviscerating more or less completely the Tenth Amendment, eliminating religion from the public square, energetically pursuing racial and sexual equality, and, more recently, legitimizing moral autonomy as the default standard for individual behavior.

The constitutional history of the past six decades, writ short, is essentially the tale of how the Founders’ Constitution was transmogrified by the Supreme Court into a document of almost infinite plasticity. At the heart of this transformation lie certain assumptions concerning Section 1 of the Fourteenth Amendment, specifically whether and to what extent that section incorporated the Bill of Rights and made it applicable against the states. In his new book, The Bill of Rights: Creation and Reconstruction , Professor Akhil Reed Amar of Yale Law School, one of the most prolific and engaging students of the new constitutional order, engages this question. Though he appears to have little cavil with the substantive results of most Supreme Court rulings of recent years, he is troubled by the Court’s reading of Section 1, and the intellectual pedigree of that interpretation. In The Bill of Rights he attempts to set it right.

At the risk of oversimplification, the incorporation debate has enlisted three warring factions, each supported by diverse academic armament. The first argues in favor of total incorporation, based on a highly tendentious reading of legislative history. On the Supreme Court, this view was most vigorously advanced by Justice Hugo Black, who first articulated it in a 1947 dissenting opinion. A second school, most closely associated on the Court with Felix Frankfurter, denies that the framers of the Fourteenth Amendment intended to incorporate any of the Bill of Rights. A third school, whose chief judicial acolyte was Justice William Brennan, argues for “selective” incorporation. Merits aside, this last view has triumphed beyond all measure, accomplishing piecemeal over time what Black and Co. sought to do at once.

Virtually the entire Bill of Rights has now been applied against the states, achieving three revolutionary results at once: 1) The original understanding of federalism has been obliterated, so that the states exercise their power now largely at the sufferance of the Supreme Court; 2) The Due Process and Equal Protection clauses of Section 1 have become a kind of witches’ cauldron from which an exotic brew of postmodern nostrums has been fed into the bloodstream of the political culture; 3) The Supreme Court has successfully arrogated to itself more or less exclusive powers of constitutional interpretation.

Amar tries to establish a new theory of “refined” incorporation. Rejecting both the Black and Frankfurter positions, he seeks to move selective incorporation onto different, and perhaps stronger, historical and philosophical grounds. Much of the book, in fact, is taken up by a close look at the eighteenth-century debates over the adoption of the Bill of Rights and at the nineteenth-century debates over the drafting of the Fourteenth Amendment. Amar’s thesis, in a nutshell, is this: 1) The Bill of Rights was not conceived by the framers as a charter of individual liberties in the manner now routinely employed by the Court. It was, rather, the expression of a structural compromise between Federalists and Antifederalists, through which popular government in the states would be protected against tyrannical encroachment by the national government. 2) Section 1 of the Fourteenth Amendment, especially the Privileges and Immunities Clause (“No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”), is the true locus classicus of our modern conception of rights. This new understanding of rights radically altered the original federal scheme but nevertheless recaptured certain populist themes of the founding era, by moving the locus of rights from the state to the person.

Along the way, Amar makes some telling points that deserve attention. He rejects, for example, the still-fashionable idea that the Constitution was an antidemocratic document. If anything, he inclines toward a rather too aggressive populist understanding of the Founding, in part, one is led to suspect, because that sentiment allows him to connect the Founders to the authors of the Fourteenth Amendment and both of them, in turn, to the work of the modern Court. Amar considers himself a textualist, one who abjures free-wheeling constitutional invention and insists that constitutional meaning must be extracted from the words of the document itself, rightly construed. But by the time he’s done construing constitutional text and legislative intent, the impression is that he’s too clever by half.

His argument on the legislative history of the Fourteenth Amendment, for example, rests on a strained parsing of the Reconstruction debates intended to show that the Privileges and Immunities Clause (which the Supreme Court effectively eviscerated shortly after the Amendment’s adoption) was intended to make the Bill of Rights operative against the states. That Amar here plows ground already plowed to different effect by numerous others is not necessarily a fatal defect. Nor is the fact that certain parts of the legislative debate cut against his thesis. Parliamentary debates, after all, seldom move in a straight line, and legislators are hardly masters of logical development. Nevertheless, for all his artful linguistic deconstruction, Amar has no effective answer for the most obvious question of all: If in fact the framers of the Amendment intended to apply the Bill of Rights against the states, why didn’t any of them say so? Such a purpose would have been rightly understood as a revolutionary alteration in our constitutional structure. It beggars belief to think that such a proposition could have been advanced and adopted in the dark.

The first part of Professor Amar’s thesis, concerning the original intent of the Bill of Rights, may come as news to those who take their constitutional history from Supreme Court opinions, but it is hardly original and, in any event, pulls up short. In broad terms, Amar is certainly correct, but his argument has been better stated, for example, by Robert Goldwin’s From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution , a work which Amar does not mention and with which he is apparently unfamiliar. This is a shame, for in Goldwin’s elegant and magisterial reflections, we have what must be considered the definitive account of the relationship between the Constitution of 1787 and the first ten Amendments. Unlike many of his peers, Amar sees the symmetry between the original Constitution and the Bill of Rights, but, unlike Goldwin, he does not fully appreciate how the very structure of the Constitution itself operates as a bill of rights, or how a different constitutional structure could render the actual Bill a nullity.

It is not clear precisely what would follow from Amar’s effort to revivify the Privileges and Immunities Clause. Here is a question to ponder: If, as Professor Amar insists, that clause incorporated the Bill of Rights and gave us the modern conception of individual liberty, does he wish to suggest that it would also justify the result in Roe v. Wade ?

Michael M. Uhlmann is Vice President for Public Policy Research at the Lynde and Harry Bradley Foundation and author of Last Rights? Assisted Suicide and Euthanasia Debated.