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I would like to challenge the conventional way twentieth-century lawyers and legal academics have tended to think about, write about and talk about the Bill of Rights. First, a methodological point. Twentieth-century academics and lawyers tend to focus on individual clauses in doing their scholarship and in talking about the Bill of Rights. Perhaps, at their most expansive moments, they will write about an entire Amendment but very rarely do they focus on the Bill of Rights as a whole. Second, a substantive point. In the course of talking about the Bill of Rights, clause by clause or as a whole, twentieth-century scholars tend to see the Bill as overwhelmingly about individual substantive rights - counter-majoritarian rights against popular majorities. That's also the conception that most lawyers today and most ordinary Americans today have of the Bill of Rights. I'd like to offer a different way of thinking about the Bill of Rights, an approach that perhaps is not the complete picture but that nevertheless reveals things obscured by the conventional approach.
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