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The Role of Government Under the Bill of Rights
Stith, Kate
Stith, Kate
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Abstract
The conventional understanding of the Bill of Rights, Professor Akhil Amar tells us, is that it protects minorities and individuals from majority tyranny. Professor Amar has done a great service in presenting the case for an alternative vision of the Bill's dominant purpose, the protection of majority rights (or what Professor Amar sometimes calls collective rights-a term that is ambiguous, ifnot downright mischievous). The primary focus of the Bill of Rights, Professor Amar argues, was to protect the popular majority against a possibly unrepresentative and self-interested Congress. There is much in Professor Amar's paper that is brilliant and important. Nevertheless, I would like to mention three ways in which his account may share some of the confusions, and dangers, of the conventional understanding of the Bill of Rights. I will end by noting several instances where I think Professor Amar may have been too quick to trumpet a populist motif in these constitutional provisions. Indeed, I believe there is a third theme in the Bill of Rights that neither the traditional account nor Professor Amar's account sufficiendy credits.