The Southmayd Professor of Law at Yale, Amar, focuses on “The Bill of Rights: Creation and Reconstruction” on a journey through history. His first stage is conception, where he conjures up the universe of the law and bill of rights Framers and, more significantly, its Antifederalist foes. He highlights the Antifederalists’ worries that the new national administration would enact repressive laws and overthrow the state governments, as many academics have done. Amar takes a unique approach, providing a powerful and distinctive examination of the political principles reflected in the amendments passed to allay their fears. He contends that the outcome was a democratic polity that strengthened popular coalitions. The municipal and state administrations entirely controlled rather than a liberal constitutional framework that granted people and minorities meaningful rights against them.
Thus, the initial First Amendment, drafted by its founders and enacted by Congress in 1789 but never approved, had nothing to do with personal freedoms. However, the amendment addressed the systemic problem of political authority. According to Amar, the Frames of reference of the First Amendment forbade Congress from meddling with the established churches that already existed in six states. This interference helped preserve the bonds between the church and the state created by local majorities; certainly, the 1789 Bill of Rights was a product of its day (Amar, 2000). However, several themes from the Bill of rights during construction reconstruction include the below factors.
The Theme of Nationalism
Humans live in a world where the legal landscape is largely shaped by significant Supreme Court cases that struck down state laws and government procedures in serving individual civil liberties. Living in the shadow of the second Reconstruction of the 1960s, several lawyers adhere to a custom that perceives federal authorities and state officials as the unique protectors of independent and minority rights as the ultimate threat. This nationalist heritage has a long history, and the Supreme Court has overturned acts of coordinated national governments significantly less frequently over two centuries than when it invalidated state action.
In actuality, the democratic tradition predates Reconstruction by a wide margin; Philadelphia, not Appomattox, is where it has its deepest roots. One of the main objectives of the Socialists was to establish a robust set of rights that could be enforced at the federal level against oppressive state governments. The list of rights sensationalizes this objective in Article I, section 10, which is the Federalist predecessor to the Fourteenth Amendment. The Federalist No. 10 of Madison is the standard expression of this viewpoint (Amar, 2000). The roots of this nativist tradition of nations’ rights are much older than the Alliance itself than those of the states’ liberties tradition. British North America did not initially exist as a solitary continent-wide juridical entity in the seventeenth century but rather as a collection of unique territories, each of which was established at a different time.
The Logistics of Incorporation
Nearly all of the Bill of Rights clauses have been adopted against the states by the Fourteenth Amendment. Despite being fundamentally sound, the incorporation process had the unfortunate side effect of making individuals oblivious to how the Bill was altered. The Bill of Rights has evolved from a collection of mostly structural protections solely applicable against the federal government to a bulwark of liberties against all government behavior.
The Bill, which was first intended to defend the entire populace against a potentially non-representative government, is now being used to defend marginalized groups against powerful social majorities. All of this makes sense, given the fundamental concerns of the Fourteenth Amendment. Still, due to odd practicalities of integration, the Fourteenth Amendment itself frequently appeared to be overlooked in the reasoning. People looked to be immediately enforcing the Bill of Rights; the Rebuilding Amendment is if at all, referenced. Most attorneys view the Bill of Rights through the lens of the Fourteenth Modification without understanding how strongly it has refracted what they perceive. This is similar to how individuals with glasses frequently need to remember that they are wearing them.
Representation and Size
The First Congress suggested twelve amendments to the Bill of Rights. However, merely the final ten were approved by the necessary three-quarter of state councils in 1791, making them fully enforceable as parts of the Constitution (Amar, 2000). As a result, the First Congress did not initially think of the phrases that make up the First Amendment. After the primary enumeration needed by the first amendment in the structure, there was one official for each thirty thousand people till the figure reached one hundred. Consequently, the composition was to be controlled by legislature so that there would be no less than one hundred agents for each forty thousand people until the number of delegates reached two hundred.
The proposed First Amendment was an explicit change of the structural norm outlined in Article I, section 2, which stipulated that there might not be more than one delegate for every thirty thousand residents. It would have been much more difficult for citizens and academics of the twentieth century to overlook the importance of the framework in the Bill of Rights. The Bill would have started and ended with systemic regulations if this initial First Amendment had prevailed in the state’s amendment process instead of narrowly losing in the 1790s (Amar, 2000). The initial First Amendment, however, made that systematic procedural suggestion. It was ironic that this resolution came first because it addressed what was possibly the Anti-Federalists’ primary concern. Demographic makeup and geography, or the country’s population and geographic size, were two important areas. According to the traditional political concept, confederations could only flourish in equal societies that were both geographically and racially homogeneous, where people shared a common environment and culture and could interact to discuss societal issues. Greek city-states and ancient Rome served as models for such republics.
The Federalists’ Contribution
The Federalists challenged this dogma by contending that a broad and somewhat diverse society might generate a more secure republic than a tiny city or state. The most eloquent and incisive expression of this revolutionary praxis today is Madison’s Federalist No. 10. Still, the original opening portion of The Federalist aimed to directly tackle the Antifederalist’s worry about the size. In The Federalist No. 2, John Jay underlined how (white) Americans embraced a fundamental homogeneity that defined them as one people, including racial, social, economic, cultural, political, and geographical similarities. Finally, in Nos. 10 and 14, Madison grabbed the stage, emphasizing the strictly domestic grounds for choosing a big state (Amar, 2000). Madison’s first two Revolutionary papers showed the complex relationship between country size, legislature size, and participation.
Madison maintained that direct democracy was unachievable in any civilization larger than a tiny city-state. Even in tiny Rhode Island, residents could not gather regularly to resolve state concerns; instead, individuals had to depend on a smaller number of government representatives to serve them. In Madison’s opinion, participation was a boon rather than a curse. A small, carefully chosen group of representatives might shape public opinion and make more moral, smart, and sustainable judgments.
Economic Self-Dealing
The Second Amendment, suggested by the First Congress, was defeated in the 1790s as well, but it appears to have survived to fight another day. After lying still believed dead for nearly two centuries, the Rip Van Winkle Amendment reawakened to a blow of recognition and many treaties and agreements in the 1980s and 1990s (Amar, 2000). Indeed, the amendment was formally declared effective in 1992, more than two hundred years after it was proposed as the Twenty-seventh Modification instead of the Second Adjustment to the United States Law. The initial Second Amendment, like the First Amendment, was primarily concerned with the governmental organization rather than fundamental individual rights.
The first attempted to reduce the general risk that the legislature would have no insight into and sympathy for their constituent elements. In contrast, the second attempted to restrict Congressmen’s capacity to line their wallets at the cost of the public, a concern expressed in the recusal stipulation of the initial Constitution’s Article I, section 6(Amar, 2000). The modifications conveyed a profoundly alike perspective. The amendments also discussed the agency cost problem of administration self-dealing within the administration servants who might have been enticed to hoard their leaders.
The First Amendment’s emphasis on a crucial contrast between a hereditary Congress and more democratic legislative bodies allowed the latter to enthusiastically embrace the amendment without bringing its legitimacy into doubt. However, the subject of legislator wages was close to home and their own pockets. Thus, the tepid reaction of state legislatures to the initial Second Amendment is indicative of a potential agency problems gap between residents’ and lawmakers’ interests.
Reference
Amar, A. R. (2000). The bill of rights. In The bill of rights: Creation and reconstruction (pp. 1–88). Yale University Press.