The Role of Government Under the Bill of Rights

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.