On Madison and Majoritarianism: A Response to Professor Amar
![handle is hein.journals/hjlpp15 and id is 127 raw text is: ON MADISON AND MAJORITARIANISM: A
RESPONSE TO PROFESSOR AMAR
WALTER BERNS*
Some fourteen years ago, in Washington, before an audience
consisting largely of law school professors and federal judges, I
said there probably was not a law school in the country that did
not teach constitutional law, and few that did not make it a part
of the required curriculum. So far as I knew, however, none
offered a course on the Constitution as such. No one in the
audience took exception to that comment. I was moved to
make it in part by a telephone call from my eldest daughter,
then in her first year of law school, who told me that her consti-
tutional law class began with the Fourteenth Amendment. I
doubt that Professor Akhil Amar begins his course with cases
dealing with the Fourteenth Amendment. As he says in his pa-
per, much is lost by the clause-bound approach that now domi-
nates constitutional discourse.'
Professor Amar looks at the Bill of Rights holistically, in-
sisting that its meaning is greater than that of the sum of its
various parts.2 He argues that although the Bill of Rights was
designed to protect individuals and minorities from popular
majorities, its primary purpose or thrust was not to impede
popular majorities, but to empower them.3 In contrast, James
Madison stated that the original, unamended Constitution was
unique in that it totally excluded the people in their collective ca-
pacity, from any share in the [government].4
Professor Amar's thesis purports to reconcile this division
of views by contending that the popular majorities kept out of
the government by the unamended Constitution were brought
back in by the Bill of Rights.5 But what majorities are these?
When Amar says that the essence of the Bill of Rights was more
* John M. Olin University Professor, Georgetown University.
1. Akhil R. Amar, Some Comments on The Bill of Rights as a Constitution, 15 HARv.J.L.
& PUB. POL'Y 99 (1992) [hereinafter Comments]; see also Akhil R. Amar, The Bill of Rights as
a Constitution, 100 YALE LJ. 1131 (1990) (explaining the proposition in more detail)
[hereinafter Bill of Rights].
2. See Comments, supra note 1, at 100.
3. See id. at 100-02.
4. THE FEDERALIST No. 63, at 387 (James Madison) (Clinton Rossiter ed., 1961) (em-
phasis in original).
5. See Amar, Bill of Rights, supra note 1, at 1132.](ViewImageLocal?handle=hein.journals/hjlpp15&div=19&collection=journals&method=preview&ext=.png&size=3)
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On Madison and Majoritarianism: A Response to Professor Amar
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