The Bill of Rights as a Term of Art

40 Pages Posted: 13 Jun 2015 Last revised: 1 Aug 2018

See all articles by Gerard N. Magliocca

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: June 12, 2015

Abstract

This Article argues that the use of the “Bill of Rights” to describe the first set of constitutional amendments emerged long after the Founding as a justification for expanding federal power.

In making this claim, I challenge two common misconceptions about the Bill of Rights. One is that the first set of amendments was known by that name from the start. This is not true. James Madison never said that what was ratified in 1791 was a bill of rights, and that label was not widely used for the text until after 1900. The second fallacy is that the Bill of Rights was a term of art designed to limit government through judicial review. While this is the modern vision of the Bill of Rights, that idea developed only after the phrase was popularized to strengthen federal authority.

During the ratification debates on the Constitution, some Anti-Federalists protested that adding a bill of rights to the proposal was like throwing “a tub to a whale,” by which they meant that such a text was nothing more than a decoy that would legitimate federal power. In practice, this was what calling the 1791 amendments the Bill of Rights did in three pivotal periods prior to 1945.

The first was during Reconstruction, when a few members of Congress, especially John A. Bingham used the term because they wanted to overturn Barron v. Baltimore and extend the first set of amendments to the states. By calling these amendments the Bill of Rights, Bingham was trying to persuade his colleagues that this expansion of national jurisdiction represented a valid exception to states’-rights.

The second came after the Spanish-American War, when critics such as William Jennings Bryan argued that our democracy could not endure as an empire that withheld the safeguards of the “Bill of Rights” to the Philippines and the other new colonies. Congress answered this challenge by extending some of the first set of amendments in what was soon called the “Philippine Bill of Rights,” which had the effect of easing public concerns about new federal authority over territories that would never become states.

Finally, the New Deal and World War II elevated the Bill of Rights to its present iconic status in an effort to increase national power still further. Liberals are fond of Franklin D. Roosevelt’s “Second Bill of Rights” that sought to grant positive rights such as health care, but FDR also brandished the First Bill of Rights to deflect charges that the growth of the welfare state threatened individual liberty. The attack was false, FDR said, because the gold standard of liberty was the Bill of Rights, and those freedoms were not being infringed. Roosevelt also stressed the Bill of Rights to distinguish the United States from the Third Reich. Before World War II, this comparison was meant to suggest that federal inaction could lead to a domestic tyranny that would destroy the Bill of Rights. A week after Hitler declared war on America, however, the President repackaged the Bill of Rights as a patriotic emblem with a radio address that contrasted its values with Nazism in order to justify the upcoming war effort.

Suggested Citation

Magliocca, Gerard N., The Bill of Rights as a Term of Art (June 12, 2015). 92 Notre Dame Law Review 231 (2016). Available at SSRN: https://ssrn.com/abstract=2617811 or http://dx.doi.org/10.2139/ssrn.2617811

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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