Akhil Amar: Elitist Populist and Anti-Textual Textualist
![handle is hein.journals/siulj16 and id is 415 raw text is: AKHIL AMAR: ELITIST POPULIST AND
ANTI-TEXTUAL TEXTUALIST
Robert C. Palmer*
Akhil Amar's work' is an intriguing modern attempt to utilize
history to produce a constitutional construction that will subserve
particular social policy goals. He purports to engage in serious legal
historical analysis, but does not: legal history must aim at a certain
fidelity to the sources as a whole. He likewise purports to be a
populist,2 but is not: the effect of his theorizing would severely limit
the freedoms established to promote greater popular participation in
government. He purports, finally, to derive his work from a textual
construction of the Constitution, but does not: the work is so selective
both in the use of external aids for understanding the Constitution
and in the rejection of avenues of analysis completely within the text
as to make it implausible as anything but a work of social policy
advocacy. Serious academics should pursue social policy advocacy in
a straightforward manner and debate their proposals on grounds of
social analysis, jurisprudence, or economic rationality. The pursuit
of social policy aims by analysis under the guise of historical textu-
alism is an attempt to bootstrap otherwise unacceptable policies into
law by constitutional mandate, instead of by the wisdom of the
proposals.
His work argues that the Bill of Rights is an affirmative consti-
tutional statement deploying local organizations such as the state
governments, religious groups, and the jury for the purpose of
* Cullen Professor of History and Law, University of Houston. B.A. 1970, University
of Oregon; M.A. 1971, Ph.D. 1977, University of Iowa.
1. While the form of this publication would indicate that it is a commentary on Professor
Amar's paper presented at the conference, there was no text of his talk available either at the
conference or supplied to me for the writing of this commentary. Professor Amar's talk was
a fair summary of the views presented in his Bill of Rights article: Akhil Amar, The Bill of
Rights as a Constitution, 100 YALE L.J. 1131 (1991). The commentators were directed to
comment on that article. This response is thus oriented to that article and cannot relate to
other arguments possibly found or highlighted in Professor Amar's paper published with this
response. This commentator welcomed that approach that thus serves to provide commentary
on articles (the dominant form of legal academic scholarship) that is normally available only
for books.
2. [T]he ideals of populism, federalism, and civic virtue that were the essence of the
original Bill of Rights. Amar, supra note 1, at 1190. See also id. at 1206.](ViewImageLocal?handle=hein.journals/siulj16&div=28&collection=journals&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Akhil Amar: Elitist Populist and Anti-Textual Textualist
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most