Becoming the Bill of Rights
Gerard N. Magliocca
Indiana University Robert H. McKinney School of Law
March 20, 2013
Indiana University Robert H. McKinney School of Law Research Paper No. 2013-16
The Bill of Rights is a sacred part of our Constitution, but that was not true until the 1940s. That may seem like a remarkable claim because the promise of a set of amendments was needed to convince many skeptics to ratify the Constitution. Nonetheless, for more than a century after they became law, the Supreme Court did not even call the basic freedoms adopted in 1791 a “bill of rights.” Supreme Court citations to this bill of rights were rare and perfunctory from 1893 until 1940, but in 1943 Justice Robert H. Jackson’s opinion in West Virginia State School Board of Education v. Barnette recited that phrase like a talisman and transformed the Bill of Rights into a fixed star in our constitutional constellation. Why did this change in the legal culture occur at that time?
This Article contends that the Bill of Rights became a canonical text in a process that began with Franklin D. Roosevelt and ended in Barnette. Many liberal scholars are fond of Roosevelt’s proposal for a “Second Bill of Rights” securing economic security, but are unaware that he discussed the original Bill of Rights more often and in greater depth than all of his predecessors put together. In a series of widely publicized speeches from 1934 to 1941, the President wielded the Bill of Rights for two purposes. First, FDR elevated the importance of that metaphor to refute charges that the New Deal was undermining individual liberty. The attack was false, the President said, because the gold standard of personal freedom was the Bill of Rights, and that was not being infringed. Second, the President discussed the Bill of Rights to distinguish the United States from Nazi Germany. Before World War II, this comparison suggested that inaction on reform at home could lead to the rise of domestic tyranny that could destroy the Bill of Rights. After the Japanese attack on Pearl Harbor, the President turned the Bill of Rights into a patriotic rallying cry in a dramatic address that explicitly contrasted Hitler’s creed with the values embodied in the initial constitutional amendments.
The President’s rhetorical offensive corresponded closely with the Supreme Court’s embrace of the Bill of Rights. Starting in 1940, the quantity and quality of the Court’s references to this phrase rose sharply. This was partly attributable to the collapse of the liberty of contract doctrine in 1937, but there are connections between FDR’s understanding of the Bill of Rights and the themes expressed in the Court’s decisions from 1940 and 1943, especially with respect to the President’s focus on the First Amendment. Justice Jackson wove these threads together in Barnette, which held that a mandatory flag salute for public schoolchildren was unconstitutional and was replete with stirring language about the vitality of the Bill of Rights in a world of tyrants and in a nation with a welfare state.
Barnette is one the Court’s most admired decisions, but the reason for its exalted status is unclear. Richard Posner says that Barnette “may be the most eloquent majority opinion in the history of the Supreme Court,” and Lawrence H. Tribe calls the decision “a notably eloquent summary of ideals informing constitutional law and American government.” Eloquence, though, is neither necessary nor sufficient for judicial greatness. Barnette’s authority stems from its role in canonizing the Bill of Rights and its skill in crystallizing Franklin D. Roosevelt’s constitutional vision, as endorsed by large majorities of the electorate.
Number of Pages in PDF File: 54Accepted Paper Series
Date posted: March 21, 2013 ; Last revised: November 27, 2013
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