The Bill of Rights As a Legal Fiction
I’ve been thinking about the Bill of Rights lately. Partly because I’m teaching a new seminar on it next Spring, and partly because I’ve written a draft paper on the Bill of Rights that I’ll be workshopping at Wisconsin next week.
In this post I want to raise the following question–What purpose is served by describing the first ten amendments as the Bill of Rights? In other words, why do people say things like “The Bill of Rights says . . .” or “That violates the Bill of Rights.” Strictly speaking, these phrases are meaningless. A particular provision may say something in a given case, but there are virtually no instances in which the Bill of Rights is at issue. As my paper notes, the only exceptions are cases like Maxwell v. Dow that addressed John Bingham’s view that the whole Bill of Rights applied to the States. Moreover, people did not usually refer to the first set of amendments as the Bill of Rights until the twentieth century.
One thought is that “Bill of Rights” is used to elevate the less significant parts of the first ten amendments. Suppose I am arguing that a government has imposed excessive bail on my client. Talking about this as violating the “Bill of Rights” might sound stronger than saying “the Eighth Amendment” or the “Bail Clause.” Another thought is “Bill of Rights” gets used because it was drafted and ratified by the same generation that produced the Constitution. What sets those amendments apart, you could say, is that they were part of the extended process that gave birth to the Constitution.
A third thought (that I’m leaning towards) is that the phrase “Bill of Rights” is just a necessary symbol that means “we care about individual rights.” This notion is deeply embedded in the Anglo-American tradition, starting with the Magna Carta, going through the English Bill of Rights of 1689, and extending through the colonies. It would be odd to draft a new constitution today (in another country) without having a Bill of Rights, even if the basic rights were protected elsewhere in the text.
More on this tomorrow . . .