The Constitution Versus the Court: Some Thoughts on Hills on Amar

Professor Roderick M. Hills, Jr. enjoys a well-deserved reputation for brilliance and generosity, and both traits are prominently displayed in his recent review of my book, The Bill of Rights: Creation and Reconstruction,1 in the pages of the Northwestern University Law Review.2 Hills's review essay bristles with interesting, important, and imaginative insights across a broad range of issues. He blends these brilliant insights with a very generous attitude towards the book and its author. In particular, his detailed account of the book's central argument is as sympathetic and charitable as I could have ever hoped for. For that generosity, I am truly grateful. Hills's essay is also very generous towards the Supreme Court. But I wonder whether it may be too generous. For Hills's generosity towards the Court requires Hills to be less than generous-and at times less than correcttowards the Constitution itself. Hills suggests that to the extent the Court has deviated from the Constitution, the deviations may have been necessary to correct defects in the Constitution itself. It seems to me, however, that the Constitution is more attractive than Hills admits, and the caselaw less attractive-at least in the three areas that Hills highlights: voting rights, jury rights, and expression rights. I. THE CONSTITUTION VERSUS THE COURT: IN GENERAL Before turning to the three specific domains Hills identifies, let us briefly review a few of his general claims. According to Hills: my book tends to emphasize "text, structure, and original understanding" while paying less attention to "judicial precedent." As a result, I "cannot account for" certain important Supreme Court cases, including cases dealing with the right to vote and the right to be free from racially stacked juries. I lack a "meta-theory" to resolve the question of how much weight text, history, and structure deserve when they conflict with judicial precedent. And in particular, I do not fully acknowledge the degree to which the "'reconstruction' of the Bill of Rights by the framers of the Fourteenth Amendment was a failure as a matter of policy."3 Hills himself thinks that caselaw-even (or especially) when it departs from constitutional text and enactment history-deserves more credit than I give it: Precedents, judicial and political, represent our collective experience of trying to apply constitutional rules handed down to us. If those precedents depart from the values and beliefs underlying the rules, then this might be a sign that the beliefs and values of the framers were internally inconsistent or practically unworkable. It is possible that courts have had to disregard (parts of) the ideology underlying the rules in order to make the rules themselves practically effective or intellectually coherent.4 I plead guilty to some of Hills's charges. My book does indeed focus considerable attention on, and is largely organized around, constitutional text. For example, rather than discussing modern Bill of Rights cases in chronological order, I try to discuss Amendments I-X, and then XIV, in textual order. And within each discussion, I do indeed highlight textual pointssmall details and larger patterns-and try to place these points in the context of the political and social history surrounding the enactment of these amendments. As shall become clear below, and as I say explicitly in the Afterword to my book, I do not think that constitutional text is the only thing that matters.5 But I do think that constitutional textualism can be illuminating and normatively attractive, for reasons that I briefly mentioned in the book and that I shall touch on in my remarks below. (In future work, I hope to elaborate the attractions and limitations of constitutional textualism in much greater detail.)6 Also, I plead guilty to lacking a "meta-theory," if by that we mean a normatively attractive and mathematically precise interpretive algorithm for interpreting the Constitution. …