Two Foxes in the Forest of History

Abstract

Bruce Ackerman, We the People, vol. II, Transformations. Cambridge: Harvard University Press, 1998. Pp. xi, 515. $29.95. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction. New Haven and London: Yale University Press, 1998. Pp. xv, 412. $30.00. In the pantheon of American history, John Bingham is something less than a household name. Even the most engaged citizens whom Bruce Ackerman wants to mobilize for higher lawmaking would be strapped to identify him, and one wonders how many law students or graduate students in history would do any better. Akhil Amar concludes his new book with a proposal to elevate Bingham to a niche near the exalted place occupied by the familiar personage who lies closer to my own historian's and biographer's heart: James Madison, leading framer of the Federal Constitution and Bill of Rights. For in Amar's telling, Bingham's role in framing the Fourteenth Amendment made possible the eventual transformation in the meaning of the Bill of Rights that has been so conspicuous a feature of modern constitutional jurisprudence. While "Madison did believe in strong individual rights.., he was ahead of his time" in doing so, and "the nauseous project" of amendments that he forced down the throats of a reluctant Congress in 1789 proved far more federal than liberal in both its enactment and interpretation - that is, it was far more concerned with limiting national power and protecting the autonomy of the states than with establishing a robust list of individual rights (or privileges and immunities) to be protected against all forms of governmental abuse. That interpretation of the original meaning of the Bill of Rights was sanctified by the Supreme Court in Barron v. Baltimore. But it was to reverse the doctrine of Barron that Bingham rallied his fellow Republicans of the Thirty-ninth Congress (or Convention Congress, to use an Ackernym). A concern with such major transformations in the constitutional order is one theme that ties the most recent books of this Yale Law School tag-team of Amar and Ackerman together; another is their common conviction that the formal amendment procedures of Article V do not exhaust the actual mechanisms by which such fundamental changes have been (Ackerman) or may be (Amar) effected. Both books illustrate the marked turn toward history - especially the history of politics and institutions - that seems so conspicuous a feature of contemporary legal scholarship as well as of social science. Both books are substantially (though only partly) historical in character; for the essence of the historian's enterprise is the explanation of change - including transformative change - rather than the archaeological recovery of artifacts and mores, or the simple narration of events. And both books evince a reasonably informed engagement with the requisite historical monographs and syntheses.