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« Comments | Main | Air America »

Akhil Amar's book "The Bill of Rights"

Posted by David Hardy · 18 August 2005 05:58 PM

Just spent many hours in the air perusing Prof. Amar's book.... it is, as one expects from his work, quite deep and with many original insights. Just a few--

On the 14th Amendment, he concludes that the intent was to make the federal Bill of Rights mostly applicable to the States through the privileges and immunities clause. The historical evidence for this was extensively compiled by Prof. Michael Kent Curtis in his book "No State Shall Abridge," and Amar adds convincing rebuttals to the responses made to Curtis and other advocates of P&I incorporation.

Then Amar suggests that total incorporation, of the type advocated by Justice Black (all provisions of the first 8 amendments apply to the States) may be too mechanical. (To back up a bit, the Framers of the 14th repeatedly said that the Bill of Rights wasn't all of the "privileges and immunities" of US citizens. Among other things, there were the protections in the Constitution itself, such as the restrictions on suspension of habeas corpus, ban on bills of attainder, etc. that are lumped in with other restrictions on the power of Congress such as no direct taxes).

He suggests that restrictions on the federal government were of two classes. First, recognitions of rights, of natural rights. Second, limits on Federal power (which I'd phrase as limits meant to restrict the new government alone -- not seen as universal rights, to be observed in any free government, but as safeguards appropriate to this new and risky establishment). The limitations on direct taxation clearly fall here. Perhaps the right to jury trial in civil cases (it's hard to see why a universal right would only kick in if the controversy exceeded $20). Grand jury -- probably a toss-up.

I promised some controversy... Amar shows that the right to arms was clearly meant as a recognition of a universal right, and should be applicable to the states. He also suggests that the first amendment provision forbidding Congress to pass any law "respecting an establishment" of religion might better be classed in the second category, as a restriction unique to the federal government. After all, several states had established churches at the time of the framing (some of which lasted into the 1820s), and by forbidding Congress to make any law "respecting" an establishment, the First Amendment also forbade Congress to interfere with State established churches.

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