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Cass R Sunstein, Originalism for Liberals, in The New Republic, at 31 (Sept. 28, 1998)

Book Review of The Bill of Rights by Akhil Reed Amar & For the People by Akhil Reed Amar and Alan Hirsch


A growing number of people think that the meaning of the Constitution should be settled by reference to the "original understanding" of those who enacted its provisions. This view firstbecame popular in the writings of Robert Bork; and though the Senate rejected his nomination to the Supreme Court, Bork's enthusiasm for "originalism" is well-represented on that Court by Antonin Scalia and Clarence Thomas. Much of the attraction of originalism stems from the suggestion that the only realistic alternative to originalism is freefloating judicial creativity. If judges do not rely on the original understanding to anchor their decisions, won't they be free to do whatever they want? If judges abandon the original understanding, won't there be a serious problem of democratic legitimacy?

Thus posed, the questions are far too simple. Suppose that we agree to be "originalists." Hard questions still remain. The historical record is far from clear about issues small and large, such as whether the equal protection clause forbids school segregation and whether and how the First Amendment protects commercial speech or libel. The past can be varied and murky. In addition, originalists need to decide whether to understand constitutional provisions as setting out particular and concrete ideas or general and abstract principles. The history of the equal protection clause does not establish whether it is supposed to set out the late nineteenth century's particular judgments or instead a principle whose content changes over time.

The originalist approach to law cannot be justified by history; it is a prior philosophical commitment, and must be defended as such. And there is a further perplexity for originalism, which is how to apply, or to "translate," a constitutional provision when new circumstances arise. When the question involves the application of the First Amendment to the Internet, or the Fourth Amendment to electronic eavesdropping, no mechanical appeal to the past is available. Some kind of judgment is required.

Many historians believe that consistent originalists must reject well-established constitutional principles by, say, allowing the federal government to engage in invidious discrimination on the basis of race and sex. But the originalist method hardly eliminates the need for interpretive discretion. And those who reject originalism are also not committed to judicial creativity without limits. They agree that the text of the Constitution is binding; and they agree that history is important to consider, even if the Framers' concrete views do not bind. They generally find their own constraints in the Anglo-American system of case-by-case judgment: they give considerable weight to precedents, often more so than originalists, whose concerns lie in the Founders' judgments, not in previous judicial decisions.

Those who reject originalism have their own ways of promoting democratic goals. They may well adopt a presumption in favor of democracy, intervening only when it can be shown that there is some problem with the democratic process that gave rise to the law at issue (as in cases involving the right to vote). People who think this way will challenge originalists to explain why the originalist's approach to judicial review is more democratic, or better in any way, than the reasonable alternatives.

Justice Scalia is the most famous originalist; but in the law schools the most influential originalist may be Akhil Reed Amar, an ingenious and prolific scholar at Yale Law School. Describing himself as a "textualist" who is interested in history, Amar is methodologically quite close to Scalia. He is intensely interested in the text and in the historical record, and he is generally searching for the original meaning of contested terms. Amar wishes to know what the Constitution "really means," and he puts that question as if it were largely or entirely a matter of excavation.

Yet Amar's conclusions are usually different from Scalia's conclusions. Like the late Justice Hugo Black, Amar is generally a liberal originalist. He insists that a fair reading of text and history supports liberal, sometimes even radical, conclusions. Most importantly, Amar is a practicing originalist, an exponent rather than a defender of the method; he uses a particular method of interpretation, but he does not spend much time defending or explaining it. An examination of his new books-one of them long, fine, and serious, the other short, unfine, and thin-casts in sharp relief the attractions and the limitations of originalism in constitutional law.

Amar's longer volume offers the first (and likely the only) systematic study of the Bill of Rights in this century. Its most striking claim is that there is a sharp distinction between the original Bill of Rights and the more individualistic Rill of Rights that we have come to cherish. In his view, the latter is a product of the Civil War era, not a product of the Founding. The original Bill was designed mostly to protect democracy rather than individual liberty; it was focused on the workings of majoritarian government, not on the protection of unpopular minorities.

One of Amar's central arguments involves the notion of "the people," a term that appears in many parts of the Bill of Rights and that serves (in his view) as an explicit reference to the preamble's commitment to the sovereignty of "We the People of the United States." He thinks that the words "the people" announce collective self-rule as the overarching goal. Amar also underlines the important point that the Bill of Rights was not part of the original Constitution, that it was a "sop" given by the federalists to the antifederalists two years after the original ratification; and he insists that the Bill that emerged was as much about structure as it was about rights.

Consider the First Amendment through this lens. "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." We tend to think that this is a prototypical safeguard of private rights. Amar disagrees. He argues that it is no accident that the provision is specifically aimed at Congress rather than at the national government as a whole. The point of the provision is to ensure that a self-interested Congress does not enact laws that entrench itself at the expense of popular majorities. This part of the First Amendment ensures that the people will be able to govern themselves; it is directed against a national legislature that might try to defeat the project of self-government. So, too, with what Amar calls "the military amendments," which also have self-rule at their core. The most important of these is the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Now invoked as a safeguard of the private ownership of guns, the Second Amendment was originally a close cousin of the First, centrally concerned with protecting the democratic goals associated with both populism and federalism. Amar urges that the special concern of the Second Amendment is the potential abuse of power by the federal military. If "the people" are allowed to retain the capacity to bear arms, they will be in a position to protect themselves against an overbearing central government.

The right to keep and bear arms was centrally linked with the notion of popular sovereignty. So long as "the people" could be permitted to retain the power of force, and the national government could not eliminate that power, there would be a crucial check against an overreaching central government, determined to entrench itself at the expense of popular will. For Amar, the Second Amendment speaks in the same democratic terms as the First. "The Founders' motto, in effect, was that if arms were outlawed, only the central government would have arms."

Juries are a centerpiece of the Fifth, Sixth, and Seventh Amendments, and Amar places the much-maligned institution of the jury at the core of the Bill's concerns. He understands each of the jury amendments as attentive to the risk that government will act inconsistently with the will and the interests of "the people." The basic function of the jury is to operate as a kind of populist safeguard against governmental over-reaching-a seemingly platitudinous claim that, in Amar's hands, carries several striking implications.

Thus Amar argues that the prosecutor's current rubber-stamp, the grand jury, was originally designed to be far more active and aggressive than it is now, with the fundamental purpose of preventing unfounded or malicious prosecutions, especially by politically motivated prosecutors. The jury itself was designed to safeguard the federal structure through its localist character, operating as a check on the national government. Amar goes so far as to suggest that, on the Founding view, a jury may well have the legal power to reject laws that it regards as unconstitutional. There is "strong plausibility" to the view that "a jury has a legal right-perhaps even the duty-to refuse to follow a law it deems unconstitutional." At the same time, the very institution of the jury would serve educational functions, helping to teach ordinary citizens about legal and political values.

These, then, are the basic building blocks for Amar's vision of the original Bill of Rights. Far from reflecting an effort to protect individuals against the over-reaching of the government, the Bill was intended to ensure that the national government would not override popular will-that "the people" would be able to engage in the process of self-government. This is the bill under which the nation lived for nearly eighty years.

Amar's emphasis on its populist and democratic features casts new light on the fact that when it was originally written, the Bill applied only against the national government, and not against the states. On Amar's account, this makes perfect sense. The whole point of the Bill was not to protect private rights as such, but to ensure popular sovereignty in the face of a threatening central government. In these circumstances, any risks from the states would be best handled at the state level, and not through federal constitutional law.

Amar thinks that the Founders' handiwork was dramatically altered by Reconstruction, which reflected a very different setting and created an entirely new conception of rights. Writing against the background of the institution of slavery, and acutely aware of the multiple invasions of private rights by state governments, the radical Republicans of the Civil War period were indeed interested in individual rights, in protection against government, rather than rule by "the people." While the Founding generation was most concerned with obstacles to self-rule, the Civil War generation was more attentive to the threats to liberty that come when ordinary citizens are not rights-bearers. It was through this different orientation that the Bill was ultimately "reconstructed."

Amar makes his argument mostly by revisiting the great debate over whether the Civil War Amendments "incorporate" the Bill of Rights. Does the Fourteenth Amendment, which is indeed directed against the states, apply the Bill of Rights to state governments? The disputed language is this: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law...." The big puzzle is whether anything in these words means that states must henceforth follow the Bill of Rights.

For several decades, the Supreme Court was split between those who urged "total" incorporation and those who argued for "selective" incorporation. Justice Black argued for total incorporation, suggesting, with a lengthy historical argument, that the Fourteenth Amendment was self-consciously designed to apply to the states all provisions of the Bill of Rights. Justice Frankfurter argued, by contrast, that the text and the history of the Fourteenth Amendment did not support this conclusion, and that only the most "fundamental rights" in the bill should be incorporated-meaning that the Court would assess, on a case-by-case basis, which provisions qualified as such. Ultimately, Justice Brennan led the Court to accept Justice Frankfurter's theory while using it to reach almost all of Justice Black's preferred results. Thus nearly all of the key provisions of the Bill do apply to the states; the exceptions are the right to keep and bear arms, the right against quartering soldiers, and the rights to grand and civil juries.

As a practical matter, the issues are pretty well resolved. But many observers think that, purely as a matter of text and history, "no incorporation" would be more sound than either selective or total incorporation. Amar offers an original and quite subtle argument in favor of "refined incorporation." His initial suggestion is that, broadly speaking, the Fourteenth Amendment does indeed incorporate the Bill. His textual argument is based on the phrase, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In his view, "the privileges or immunities of citizens of the United States" include the provisions of the bill of rights. He supports this conclusion through a detailed treatment of the relevant debates, and in particular the speeches in 1866 and 1867 of John Bingham, the main author of the provision and the leading figure in the House, and Jacob Howard, the leading figure in the Senate.

But Amar does not think that the "total" incorporation view is quite right. For the Civil War generation, the "privileges and immunities" included private rights, not collective rights. To figure out which provisions of the Bill are incorporated, it is therefore necessary to ask whether a right "is a personal privilege that is, a private right-of individual citizens, rather than a right of states or the public at large." The interpretive task, in his view, is to synthesize the interest of the 1860s in private rights with the interest of the 1790s in rights having structural goals. Thus it must be asked whether an alleged right is one "vested in discrete individuals." The larger point is that, to the extent that the Fourteenth Amendment applies the Bill of Rights to the states, it does so by means of a set of understandings that vary a great deal from those that underlay the original Bill. The new understandings see rights as individual and private; and so it is necessary to excavate the pre-Civil War history to appreciate which rights were so conceived.

Here, in brief, are some of Amar's most important conclusions. The First Amendment was well understood, by the Reconstruction Republicans, to include a private right to freedom of speech. This is obviously true also of the Fifth Amendment right to just compensation whenever the government takes your property. Thus both free speech and the right against uncompensated takings apply against the states. So, too, with the right to keep and bear arms, though here the story is more interesting and more complicated.

At the founding, writes Amar, this right "stood shoulder to shoulder with the right to vote"; it was an emphatically political right, "collective, exercised in a well-regulated military embodying a right of the people, collectively understood." By the 1860s, however, the vision was "private, with individual freedmen keeping guns at home to ward off Klansmen and other ruffians." Thus "between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman." The key to the Second Amendment lies in this particular history, which does indeed justify finding a private right to bear arms. "Today's NRA pays far too much attention to 1775-91 and far too little to 1830-68."

What about religious liberty? Amar argues that the authors of the Fourteenth Amendment believed in an individual right to be free from any law that favored one sect over another-hence the free exercise and establishment clauses, which prohibit the states from engaging in religious favoritism. And the various jury trial rights, seen through the lens of the movement for racial equality, were newly individual as well. "Whereas the Founders emphasized Americans' rights to participate in government by serving injuries, Reconstructors emphasized the right to be tried by juries. Yet again, we see a Founding 'political' right mutating. . . into a Reconstruction 'civil' right."

The upshot of all this is to reaffirm much of the conventional wisdomthat the central provisions of the Bill of Rights apply to the statesbut on entirely new grounds. Amar's conclusion is thus that the 1860s marked a "new birth of freedom," not least because it gave rise to the very term "bill of rights." Above all, he calls into doubt the stock story which focuses on the Founding at the expense of "all the ways in which the Reconstruction generation-not their Founding fathers or grandfathers-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." Amar's ultimate complaint is that we have exaggerated the importance of the Founding and diminished the revisionary authority of the Civil War amendments, in a reflection "of a kind of curiously selective ancestor worship-one that gives too much credit to James Madison and not enough to John Bingham, that celebrates Thomas Jefferson and Patrick Henry but slights Harriet Beecher Stowe and Frederick Douglass."

There are many virtues to this account. Amar is correct to say that many of the original rights were designed to ensure popular control of government, not to protect individuals as such. And a large advantage of this claim is that it tends to dissolve the frequent opposition between "democracy" and "constitutionalism": far from operating as a check on democracy, constitutionalism can guarantee the preconditions of democracy. Amar is also right to emphasize the dynamic nature of American constitutionalism. Americans tend to attribute their rights to the genius of the Founding Fathers, as if those rights sprung fullborn from the preternatural, metahistorical minds of Madison and Hamilton; but constitutional rights, as we now understand and live them, owe a great deal to subsequent developments, both political and judicial. The Civil War was indeed a watershed.

And yet there are problems. Amar presents the Founders as enthusiastic populists, but in fact they were highly ambivalent about "the people." Much of their writing reflected profound skepticism about the "passions" and the factionalism of populist politics. The institutions that they designed were self-consciously republican rather than democratic, and this design was owed not least to the Framers' perception that officials operating above the fray would be better able to deliberate and to discern the public interest.

Checks and balances, national representation, and federalism were all designed as safeguards against direct democracy-that is to say, against the excesses of populism. Amar's emphasis on how the Bill of Rights enshrines democratic principles helps to correct an imbalance in the received wisdom; but he seems to be projecting his own populist sentiments onto the past.

In many cases, moreover, Amar does not sufficiently acknowledge the existence of competing historical strands, of uncertainty, of vagueness-in other words, the often disorderly and unruly nature of constitution-making and of the Founders' own understandings. Consider again the issue of incorporation. Amar has shown that the text and the history make his "refined incorporation" model a perfectly reasonable reading. But what does it mean to say that this is the best of all possible readings? For a start, there are obvious textual problems. If the authors of the Fourteenth Amendment wanted to apply the Bill of Rights to the states, surely there were more straightforward and unambiguous ways of doing so. Well before the ratification of the Fourteenth Amendment, the Constitution contained another privileges and immunities clause, in Article IV; this provision prevents states from denying "privileges and immunities" to citizens of other states. Everyone agrees that the "privileges and immunities" referred to here do not mean the Bill of Rights, but instead the most fundamental interests protected at common law. And in using the term "privileges or immunities" while debating the Fourteenth Amendment, many people referred to Article IV's privileges and immunities clause. Doesn't it seem odd to say that the Fourteenth Amendment's new privileges or immunities clause means something completely different from the old privileges and immunities clause of Article IV?

Amar's account faces an even more serious obstacle. Right after the privileges or immunities clause, the Fourteenth Amendment adds a semicolon, and then proceeds to say, "nor shall any State deprive any person of life, liberty, or property, without due process of law." Of course the due process clause was a part of the original Bill of Rights, applicable to the national government. So the question arises: doesn't Amar's reading make the due process clause a redundancy? How can the privileges or immunities clause possibly be read to include the Bill of Rights-if the very next sentence in the Fourteenth Amendment explicitly makes the Bill's due process clause applicable to the states? Why would the Framers bother to add a due process clause, and to apply it to the states, if the privileges or immunities are already included in the Bill of Rights?

Amar has a clever answer to these questions. Unlike the privileges and immunities of Article IV, which are those of citizens of individual states, the Fourteenth Amendment's privileges and immunities are those of "citizens of the United States"; it is these latter "privileges or immunities" that include the Bill of Rights. This point explains why the two clauses are different, and also why the due process clause is no redundancy-since (and here Amar finds a rabbit to pull out of his hat) it applies not just to citizens, but to "any person," that is, to non-citizens like everyone else. The due process clause gives noncitizens as well as citizens the right not to be locked up without a trial.

This clever answer makes Amar's interpretation plausible rather than implausible as a textual matter. But let us stand back for a moment. What kind of game is this? Does Amar really mean to urge that all or most of the people who ratified the Fourteenth Amendment understood these extremely complicated and technical points? Does he even mean to suggest that Howard and Bingham understood them? Amar marshals a good deal of helpful history; but he finds no one who explicitly understands all this the way that he does.

The most sensible conclusion is that many framers and ratifiers had many different understandings, and that no single or simple view can be found in history. And the same is true with respect to more particular rights. We have little direct evidence about how the Reconstruction Republicans understood any constitutional right to keep and bear arms (if they thought there was such a thing, which is also unclear). Lacking direct evidence, Amar relies instead on a kind of period mood, one that sees this right as important to individual liberty. But there is all the difference in the world between a general mood and a particular interpretation of a legal text. Too often Amar proceeds as if he can deduce the latter from the former.

These points raise larger issues of interpretative method, which are best discussed in conjunction with For the People, which Amar has written with Alan Hirsch. This short book is coarser and less closely argued than The Bill of Rights it also carries Amar's populist themes much further, sometimes in bizarre directions.

Amar and Hirsch have two purposes. The first is to provide a kind of primer about constitutional law. The second is to revise, often radically, current understandings of the Constitution, understandings that are shared by judges and the public alike. But the radical conclusions make this more a manifesto than a primer-a manifesto that purports to be grounded in what the Constitution "really says."

According to Amar and Hirsch, the Constitution "is one of the most democratic documents in human history." They also believe that we have lost sight of "the grand democratic design of this great democratic document." Thus they distinguish between what they call the Conventional Constitution (what most people believe the Constitution to mean) and the Framers' Constitution, which is far more glorious.

For Amar and Hirsch, the central constitutional ideal is the ideal of citizenship, which generates four "boxes" of rights. The first three are the ballot box, the jury box, and the cartridge box, stemming from citizens' three central responsibilities: to participate in the polls, to serve on juries, and to participate in the project of self-defense. To these boxes the authors add (somewhat more tentatively) the lunch box, which includes a right to have both property (that is, minimal welfare guarantees of some kind) and a reasonable level of education.

Amar's and Hirsch's understanding of the four "boxes" is idiosyncratic. Most strikingly, they believe that the Constitution can be amended by simple majority vote. If we would like to have an Equal Rights Amendment, a balanced budget amendment, or a flag-burning amendment, a majority of the citizenry can so decide without going through the complex procedures set out by Article V of the Constitution. To put it mildly, this view would call for an enormous revision in constitutional practice. And this is just a start. Amar and Hirsch also suggest that juries can "strike down" laws of which they disapprove; that peremptory challenges are unconstitutional; that the military must allow women in combat and gays and lesbians in the military; that the Constitution may well give a right to both education and welfare.

Amar and Hirsch always offer textual, structural, or historical arguments for these conclusions, but the arguments are sometimes paltry and unconvincing. Thus the proposition that a majority can amend the Constitutiona centerpiece of the claim that the Constitution is radically democratic-faces a significant textual obstacle. Article V specifies the means by which the Constitution can be amended: a proposal by two-thirds of both houses, or an application of two-thirds of the states, followed by ratification by the legislatures or conventions of three-fourths of the states. To modern readers, this article appears plainly exclusive. If the Constitution could be amended by majority vote (and a right to amend in this way is not in the Constitution's text), what is the point of Article V?

Amar and Hirsch offer several defenses. They note that Article V does not explicitly, in so many words, say that it is exclusive; that the Framers themselves did not follow the cumbersome amendment procedures of the Articles of Confederation; and that in the process of failing to follow those rules, some of the founders, including James Madison, suggested that "first principles" give a sovereign people the right to abandon a form of government when they wish. Now, obviously the Framers did not mean to deny the right of revolution; but the far simpler inference from text, structure, and history is that Article V specifies the procedures by which any amendments must be ratified, an inference fortified by the fact that much writing in the Founding period suggests an unambiguous suspicion of transient majority will.

Or consider the lunch box. Amar and Hirsch say, correctly, that the Constitution is rooted in a conception of popular sovereignty. And they ask, "Does not the principle of rule by the People entail realization of the conditions necessary to make such rule possible?" The problem is that "people lacking the means of subsistence must devote all of their resources to physical survival," and hence "they lack the time, energy, and even will to vote, fight, or judge." Amar and Hirsch go so far as to gesture toward the (historically implausible) idea that the original Constitution guaranteed a right to minimal income, by guaranteeing a republican form of government; but they rely mostly on the Thirteenth Amendment, abolishing slavery and involuntary servitude. "We need to ask exactly what it means to prohibit slavery.... Unless we interpret the amendment to guarantee each American a certain stake in society, have we really set all of our people free?"

But what kind of argument is this? The Thirteenth Amendment banishes slavery and involuntary servitude, and this ban, taken as a matter of text and history, hardly need be read to contain a right to minimum entitlements. It is reasonable, of course, to think that people are in some sense "slaves" if they are destitute; but that is metaphorical slavery, not real slavery, and anyway that thought does not entail the view that the Thirteenth Amendment requires a minimal income guarantee. That view may be a plausible interpretation, but any such interpretation cannot be purely textual or historical; it involves something other than a language lesson, or a close reading of primary materials.

A tempting conclusion would be that Amar and Hirsch speak in the Constitution's name but really in their own voices; that a substantial part of what they are expounding is their own politics; that they have not taken text, structure, and history seriously enough. Yet I think that the more fundamental problems lie elsewhere. Of course there is a text, a structure, and a history, and a legitimate interpreter must pay attention to all these; but text, structure, and history do not speak for themselves. Any view about how to treat them must be defended, not simply found.

If Amar and Hirsch resolve uncertainties in their own preferred way, it is not because they are unfaithful to the legal sources. It is because there is really no other way for any interpreter to proceed. How can uncertainties possibly be resolved, except by reference to the interpreter's preferred approach to interpretation? This is no less true of justices in the Supreme Court than of professors in law schools-not, it bears repeating, because they are lawless, or unfaithful to their own method, but because uncertainties are inevitable, and they must be resolved. The difficulties arise when the central judgments-in favor of one method rather than another, in favor of one or another way of resolving the uncertain issues that arise within any method-are not defended or disclosed.

To be sure, it is possible to reject originalism as an appropriate approach to constitutional interpretation while at the same time learning a great deal from textual and historical analysis. In this regard, For the People has several real virtues, including an instructive emphasis on overlooked democratic features of the constitutional design. And The Bill of Rights, a far better book, offers a number of striking arguments and claims, many of them original and convincing. Yet Amar's virtues are accompanied by a vice: he tends to proceed as if his conclusions are an inevitable consequence of a careful reading of text, structure, and history, and as if those who disagree are mostly disagreeing about these things-as if text, structure, and history are the only game in town, and those who do not play that game are not doing law at all.

Amar does not show whether and exactly in what sense constitutional interpreters should attempt to be "originalists." The Bill of Rights is especially valuable as an exercise in intellectual history; but the question is how well we can solve current problems in this way. In most serious constitutional disputes, the original sources leave gaps and uncertainties, and the outcome depends on policies or principles that should not be inconsistent with those sources but cannot be found there. It is important to be candid about those policies or principles-whether they turn out to be a commitment to precedent, a principle of judicial restraint, a background rule in favor of federalism, or a certain conception of equality or dignity. No less than the conservative originalist, the liberal originalist does not avoid the most serious problem with all who claim to have a fix on what the Constitution "really means," which is their unfortunate habit of invoking the text and the history of the Constitution when their own judgments and their own preferences are playing an inevitable role.

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