The Phillipines and the Bill of Rights

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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8 Responses

  1. Brett Bellmore says:

    “The first clear reference to the national Bill of Rights that meant the first ten amendments did not come until 1893.”

    Except, you know, for all those references at the time it was being drafted and ratified… I think you maybe need to qualify that statement, to something like, “The first clear reference by the Supreme court.” Maybe they were embarrassed to mention something they had no interest in enforcing?

  2. Gerard Magliocca says:

    Well, I did say that this post was about the Supreme Court.

  3. A.J. Sutter says:

    Nonetheless, Gerard, Brett makes a good point about distinguishing between Bill of Rights discourse in the US generally, and the Court’s Bill of Rights Discourse. You began this theme a number of weeks ago by talking about FDR, not the Court. So please understand why your faithful readers may be confused about where you’re headed.

  4. Shag from Brookline says:

    Gerard’s comment (#2) was accurate. It is clear in the first paragraph of his post that the focus of the post is the Supreme Court regarding the Bill of Rights. Gerard’s post was not dealing with references during the drafting and ratification processes of the the Bill of Rights or “discourse in the US generally”. Rather, Gerard’s clear focus in this post relates to the Supreme Court. Brett has misread the post and apparently so has A.J.

    Now here’s the curious part of Brett’s #1:

    “Maybe they were embarrassed to mention something they had no interest in enforcing?”

    Presumably the “they” is the Supreme Court. But what is Brett’s basis for suggesting lack of interest or embarrassment in the Court in enforcing the Bill of Rights? Up to the Reconstruction Amendments, the Bill of Rights (or at least the first eight Amendments) limited the federal government, not the states. Back in those days, there was no cert procedure as we have it today. Apparently parties appealing to the Court may not have have raised Bill of Rights issues very often. Remember, the Court had to take all appeals. So in those antebellum years did the Court have no interest in enforcing the Bill of Rights and were the Justices embarrassed?

    Gerard is taking us on a trip, as noted in his closing paragraph. I’ll be tuning in tomorrow for what may be a surprise answer to who changed the backwater treatment of the Bill of Rights by the Court in 1940.

    So, Gerard, as a faithful reader, you were correct in your #2 and I wasn’t confused about where you’re headed. This is your story and I can’t wait to be surprised. I turned 10 years of age in 1940 and am trying to recall events of that year. I took my ConLaw course in the Fall of 1952, before the Warren Court. Most of the course was spent on the Commerce Clause. A couple of years later, beginning with Brown v. Board of Education, the Warren Court addressed the Bill of Rights as impacted by the Reconstruction Amendments. So I’m curious as to the Court’s involvement with the Bill of Rights during the period 1940 up to the Warren Court.

  5. mls says:

    The fact that Congress passed a statute making some of the bill of rights applicable to the Philippines doesn’t really explain why the Supreme Court only discussed the bill of rights in cases related to the Philippines, does it?

  6. Shag from Brookline says:

    is anyone prepared to challenge Gerard’s:

    “In fact, the Bill of Rights was a backwater in Supreme Court discourse until 1940.”

    with facts? I’m interested in listening to Gerard’s case and challenges to it. Perhaps it might even lead to an examination of whether the Bill of Rights was a backwater in discourse of the Executive and Legislative branches until long, long after the adoption of the Bill of Rights.

  7. Anna Su says:

    Gerard, I think you’re right that many of these amendments were tested first in American colonial Philippines. (That’s stuff for another post,probably. It would be interesting to see how the American judges there importing precedents) Also, the statute you’re referring to reproduced an earlier executive act by McKinley, “McKinley’s Instructions” which enumerated the Bill of Rights (except arms and jury) as applying to the islands.

    Though I think the statement regarding the Bill of Rights as backwater in court discourse until 1940 might be a bit of an overreach? For example, a lot of the seminal speech cases were decided between 1917 to 1925.

  8. Gerard says:

    Just to be clear, I’m not talking about the individual parts of the first ten amendments. I’m talking about the notion that the “bill of rights” was something special. That’s what was uncommon in the Supreme Court.