The Bill of Rights in the Supreme Court

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Dan Cole says:


    Not exactly on point, but yesterday I was teaching an English property case involving the quartering of soldiers in a private house during WW II, and I mentioned the constitutional issue that would raise, if done in the US. Immediately, two student in class turned to each other and high-fived. When I asked them what it was about, they said that they had been waiting all year for any professor to make any kind of reference to their “favorite” amendment, which they consider much and unfairly maligned, compared to the more popular 1st, 2d, and 5th. Needless to say, the rest of the class found it very amusing. My only comment was that it clearly ranked third on Madison’s list.



  2. Anthony says:

    You might find this presentation by Laura Weinrib relevant.

    She’s focused primarily on the First Amendment, but it’s an interesting account of how progressives and the ABA came together to endorse the shift to a more rights-based jurisprudence during the late-30s/early-40s.

  3. Joe says:

    Barron v. Baltimore cites Art. 1, sec. 9 as a bor:

    “The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures.”

    As to the first comment, was it not fifth on “Madison’s list”?

  4. Dan Cole says:

    Joe, I have no idea where it was on Madison’s list; I didn’t even know he had a “list” separate from what became the Bill of Rights. I’m not a Con Law scholar, and do not pretend to be.

    BTW, I like the reference to Art. 1, sec. 9 as a Bill of Rights, although it strikes me more as a Bill of Duties. After all, to whom does the “right” against Congress granting titles of nobility belong?


  5. Joe says:

    Dan Cole, I’m going by “My only comment was that it clearly ranked third on Madison’s list.” I thought it was “clear” to you. No problem. My allusion is that the original “list” had two amendments that weren’t ratified with the other BOR, though eventually one became the 27A.

    A bar against nobility is a sort of equal protection guarantee, nobility traditionally providing special privileges that burdened those w/o them.

  6. Dan Cole says:

    I’ve long thought it would be nice to amend the Constitution to allow the government to sell titles of nobility as a means of raising revenues through a non-regressive, non-tax mechanism. Since the plutocracy already act like lords and dukes, we might as well name them as such, so long as the titles come with no special legal or political rights.