I am a great admirer of Akhil Reed Amar’s books The Bill of Rights and America’s Constitution. In fact, all PLF law clerks receive a copy of the latter as part of their assigned reading materials. Amar’s excellence as an expositor of the Constitution lies not just in his familiarity with the source materials of the founding and of the post-Civil War era, but also in his skill at weaving together different parts of the Constitution into a holistic picture of how the nation’s fundamental law works.
Sadly, Amar’s work often fragments when he runs up against the legacy of the Progressive era, in which the philosophical foundations of the Constitution were subjected to a sustained assault—an assault that in some ways triumphed over the Constitution in the 1930s. Amar’s partial embrace of Progressivist thinking leads to some very disappointing moments—for example, in America’s Constitution where he pays scant attention to the abuse of the Commerce Clause in the post-New Deal era, and doesn’t even cite the work of Randy Barnett, the nation’s leading scholar on the original meaning of that constitutional provision.
Since I have not yet read Amar’s latest book, The Unwritten Constitution, I hesitated at first to comment on his recent post discussing Lochner v. New York—the subject of David E. Bernstein’s book and a case I discuss at length in my own book, The Right to Earn A Living. But in light of the exchange between him and Prof. Bernstein, I think a few further points are in order.
Read the rest at PLF Liberty Blog.