The Bill of Rights Reconsidered
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. Not many Americans called the first set of amendments a bill of rights during the eighteenth and nineteenth centuries, and no special importance was attached to that text during the early twentieth century. In the 1930s, however, the Bill of Rights became iconic due to Franklin D. Roosevelt’s decision to emphasize that term in major speeches defending the New Deal, the rise of Nazi Germany, and the collapse of the liberty of contract. By the early 1940s, the ratification of the Bill of Rights was being commemorated for the first time, President Roosevelt was using the Bill of Rights as a rallying cry for World War II, and the Court was canonizing the Bill of Rights in West Virginia State School Board of Education v. Barnette.
This Article argues that the Bill of Rights was an invention of the twentieth century rather than a creation of the Founding Fathers. To prove this claim, we must untangle the following false syllogism:
One: Many Anti-Federalists criticized the Constitution for lacking a bill of rights.
Two: Congress proposed and the states ratified the first set of amendments in response to those concerns.
Three: Therefore, these amendments were a bill of rights.
The flaw in this reasoning is that what was ratified in 1791 protected rights but was not seen as a bill of rights. At the time, a bill of rights in a constitution was expected to have two traits that were not in the first set of amendments. First, a bill of rights came at the beginning of a constitution right before or right after a preamble. Second, a bill of rights contained aphorisms about popular sovereignty and natural rights comparable to what was in the Declaration of Independence or in the Virginia Declaration of Rights. All of the self-described state bills or declarations of rights in 1791 shared these characteristics, and in the First Congress James Madison proposed what he labeled a bill of rights that looked like those texts. What Congress proposed, by contrast, came at the end of the Constitution and was free of rhetoric. Accordingly, hardly anyone referred to the first set of amendments as a bill of rights in the 1790s, and most lawyers did not do so until around 1900.
Part I explores the original understanding of a bill of rights and explains why the first set of amendments did not fit within that view. Part II explains that this understanding remained stable until 1900 by examining how people described the first set of amendments and by looking at the state bills of rights. Part III discusses the shift to the modern usage of the Bill of Rights in the early twentieth century and its link to colonialism. Part IV assesses how Franklin D. Roosevelt used the Bill of Rights to meet the political challenges posed by the New Deal and by Adolf Hitler. Finally, Part V traces the shift in the Supreme Court’s stance toward the Bill of Rights at about the same time, ending with the masterpiece that is Barnette.
Number of Pages in PDF File: 80Accepted Paper Series
Date posted: March 21, 2013 ; Last revised: December 7, 2014
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