Book Review: Akhil Amar, the Bill of Rights, and the Seven Deadly Sins of Legal Scholarship
The publication of The Bill of Rights: Creation and Reconstruction by one of the nation's most prominent scholars from one of the nation's most prominent law schools was bound to be a major event in academia. The Bill of Rights has been selected as an offering for the History Book of the Month Club, favorably profiled in a two-page interview in the American Bar Association Journal, and was the subject of a two-page excerpt in the American Lawyer. It also has been favorably reviewed on electronic discussion lists and in traditional law journals.
While the enduring quality of such work is to be judged not by months but by decades, this Article considers why the work of Professor Amar has been so well received thus far. In examining this question, this Article will focus upon examples from the second portion of Professor Amar's work and his doctrine of refined incorporation. In doing so, this Article suggests that there are “seven deadly sins” in the field of legal history:
(1) Disrespect for historical figures and legal historians; (2) Abandonment of traditionally tested methods of interpretation without a sufficient basis for their replacement; (3) Failure to examine matters in context; (4) Anachronistic analysis; (5) Substitution of quotations for analysis; (6) Inconsistency; and (7) The false impasse.
Of course, each of these may be stated more positively, as “seven heavenly virtues”:
(1) Take people seriously; (2) Work with time-proven methods and build a firm foundation for innovations; (3) In judging the text, context is important; (4) Guard against anachronisms; (5) Only quote what you know to be the truth or likely to be the truth (avoid the “if two people said it, it must be true” approach); (6) Strive for scholarly consistency; and (7) Recognize that not every disagreement results in an impasse.
This Article will provide examples of the “sins” in the history of the debate over the meaning and effect of the Fourteenth Amendment and then test Professor Amar's work against the same standard.
Richard L. Aynes, Book Review: Akhil Amar, the Bill of Rights, and the Seven Deadly Sins of Legal Scholarship, 8 William & Mary Bill of Rights Journal 407 (2000).