Robert Spoo


Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights") probes three defining moments of American constitutional history-two of them in the contested past and one in the restless present. The first two are the performative acts of framing, in 1789 and 1868, respectively, of the initial ten amendments and of the Fourteenth Amendment to the United States Constitution. For Amar, history is too multivalent, and the Framers' text too loftily open-textured, for simple answers to the vexed question of incorporation. The Bill of Rights is, in one of Amar's controlling metaphors, an "alloy" of majoritarian and individual rights, federalism and civil liberties, that admits of no facile or mechanical incorporation against the states. The Fourteenth Amendment, in its turn, is a complex text woven in response to a "complicated reality." Indeed, Amar sees history and text as related to each other in richly homologous ways. This interrelation, which is perhaps the overarching concern of his book, demands the interpreter's most sensitive and nuanced ministrations. Historical insensitivity can lead to anachronism, a cardinal sin in Amar's hermeneutic theology. Textual recklessness can result in exegetical solecism, a related, or perhaps correlated, blunder. The interpreter of the Bill of Rights thus takes on a challenge and a responsibility: to fashion an adequate response to the problem of the Framers' "alloy."