nature of Leonard Williams Levy's Origins of the Bill of Rights is not as simple as it seems, and this is in fact a measure of the strength of the book. We are so accustomed to dividing the world into clear categories - popular fiction on one side, serious scholarship on another, pulp fiction over there in the corner - that we are given pause when we come across a book that cannot be so easily categorized. Our first impulse may in fact be to decided that this means that there is something wrong with such a book, that the author has failed in his (in this case) attempt to produce a particular kind of text.
But a more thoughtful examination of the work suggests that Levy has in fact succeeded doing in what he set out to accomplish, which was to create a work about the Constitution's Bill of Rights that is both popular and scholarly at the same time. This is not precisely an example of what is called a "crossover" book, which is the term usually applied to a book written about an esoteric subject by a scholar in such a manner that the writing style is easily accessible to any educated (but not expert) member of the public - for the Bill of Rights is hardly an esoteric subject for any American.
However, this book clearly is written from a scholar's viewpoint and written for a general readership: This is a book that focuses on the kind of detail that makes good scholarship but it is also broad-ranging in this approach. In style it is reminiscent of works of history like The Guns of August that seek both to educate the public about a certain series of events or issues (the origins of World War I, the origins of the Bill of Rights) while at the same time educating the general public on how one should investigate historical issues.
Levy provides us both with a window into the meaning (both when it was written and now) of the Bill of Rights but also with a non-trivial understanding of the way in which intellectual history is done. And he also tells a pretty good story along the way.
The topic of this book is, precisely as the title suggests, an investigation into the origin of each of the ten amendments that collectively constitute the Bill of Rights as well as (to a less extent) an examination of why the Bill of Rights as a whole was a necessary addition to the Constitution to ensure that it would be ratified. Levy is concerned to some extent with explaining what is usually called "original intent," with providing us some insight on what was going on in the mind of the Framers of the Constitution when they chose these particular rights to be enumerated and not others.
Levy's major point in this regard (and while it is hardly radical it does certainly bear repeating) is that the particular social, political and economic factors that obtained in America at the end of the 18th century were directly responsible for the crafting of the Bill of Rights in the manner that it was written. We are often struck by how prescient the Framers appear to have been, and of course the Constitution has in fact weathered the passage of time remarkable well.
Levy suggests that this is not entirely and perhaps not even primarily because the Framers were writing with the eyes focused on the future. Certainly they were concerned with crafting document that would survive the passage of time, but they were more focused, he suggests, on crafting a document that could be ratified and help the nation through its then-current struggles. The fact that it has withstood so many changes in society and in the nation is in part a testament to the intelligence of the Framers, certainly. But Levy also suggests that it is in no small part thanks to the fact that the concerns that people have about limiting the power of the government do not in fact vary all that greatly from one generation to the next.
Indeed, he argues, the parts of the Bill of Rights that have proved to be most problematic are those that are rooted most deeply in the particular historical circumstances of the 18th century such as a Second Amendment written in a time in which fully automatic weapons (not to mention atomic ones) were unimaginable. The parts of the Bill of Rights that remain most valid, Levy demonstrates, are those that address the ways in which human nature reacts to power. This is something that has changed very little over time, and so the ways in which the Framers tried to balance (and to constrain) power remain valid and effective today - because human nature has changed so little.
As noted above, this book is broad-ranging and synthetic in its arguments: It is not narrowly focused on a single, very specific argument. However, there is a broad argument running throughout the book, which is the idea that the Framers believed that certain rights were indeed inalienable. This meant that we as humans (although perhaps the Framers would have qualified that to "white, male humans") come in to this world with certain rights and that we must do something ourselves to negate our claim to those rights.
Another way of stating this argument is that the government does not grant us most of the important rights; it may serve to protect and preserve them but the government, as a collection of people like ourselves, has no authority to grant fundamental rights to anyone else. Only something larger than human will can do this. The Framers would probably have called that "higher power" God. Many today still would. Other might call it evolution - or fate or human nature. But Levy's major point is that the Framers understood that people do not have the moral authority to grant certain kinds of rights to other people and so governments should not have the power to take away those kinds of rights from other people.
An ancillary point that Levy makes in this regard is the fact that while today we tend to consider the intellectual achievements of the Framers to be dramatically radical, in fact their ideas were very much based upon the works of many others. They had explicit sources, like the writings of Enlightenment thinkers like John Locke, to inspire them. But they also had centuries of writings and practice on English common law, a great deal of which (at least since the Magna Carta and certainly since the English Revolution) was dedicated to protecting the rights of individuals.
This is not to say that the Framers were not men of personal vision and courage: However, it must be remembered that the Constitution did not spring sui generis from the brow of James Madison or anyone else. The Framers looked to the past as well as the future in writing our laws, even as leaders today continue to try to use what has worked in the past while also adding innovations with an eye to the future.
My evaluation of the book overall is a favorable one because of all of the reasons cited above. The style is one that is accessible without in any way being "dumbed down." Levy treats his readers as intelligent and even educated, but simply not as experts in this particular field. Moreover, the tone of his book suggests that he is taking it on faith than we care about our country. This is actually quite refreshing. He assumes neither that we are cynically detached from the process nor that we are mindless, flag-waving, thoughtless patriots, but rather that we are in our own ways the inheritors of the kind of thoughtful patriotism that the Framers themselves possessed as they sought to create a new form of governance.
My evaluation of the book overall is also a positive one because of the insights that Levy affords on some particular aspects of the Bill of Rights. I had certainly been exposed to all of these ideas before in high school history classes but I had never been able to appreciate as fully as I do now, after having read this book, the specific political and epistemological arguments that the Framers considered.
One of the reasons that his arguments are so compelling - and so clear to follow - is his use of primary historical documents rather than a great reliance on secondary or tertiary scholarship. He allows the reader - even forces the reader - to try to step back in time to understand the concerns of the Framers. This does not mean that he is arguing that we should necessarily today be concerned about a strictly conservative, "original intent" reading of the Constitution from the Supreme Court. In fact, in many ways Levy, even as he looks at original intent, is arguing that we should…