The Constitution Versus the Court: Some Thoughts on Hills on Amar

Abstract

Professor Roderick M. Hills, Jr. enjoys a well-deserved reputation for brilliance and generosity, and both traits are prominently displayed in his recent review of my book, The Bill of Rights: Creation and Reconstruction, in the pages of the Northwestern University Law Review. Hills's review essay bristles with interesting, important, and imaginative insights across a broad range of issues. He blends these brilliant insights with a very generous attitude towards the book and its author. In particular, his detailed account of the book's central argument is as sympathetic and charitable as I could have ever hoped for. For that generosity, I am truly grateful. Hills's essay is also very generous towards the Supreme Court. But I wonder whether it may be too generous. For Hills's generosity towards the Court requires Hills to be less than generous-and at times less than correct towards the Constitution itself. Hills suggests that to the extent the Court has deviated from the Constitution, the deviations may have been necessary to correct defects in the Constitution itself. It seems to me, however, that the Constitution is more attractive than Hills admits, and the caselaw less attractive- at least in the three areas that Hills highlights: voting rights, jury rights, and expression rights.