What is the Bill of Rights?

I’m giving a talk today at Wisconsin about the Bill of Rights, and one thing that I will emphasize as I expand and rework my draft paper on the use of that term is that the Bill of Rights is largely a 20th century construction rather than an 18th century fact.  Here’s one example.  Is the Bill of Rights the first eight amendments or the first ten?  No doubt many of you would say 10 because ten were ratified in 1791.

Many cases and commentators, though, define the Bill of Rights as the first 8.  Learned Hand took this view. So did Hugo Black and Felix Frankfurter.  Why is that?  Partly it’s because they did not care for the Tenth Amendment and thus wanted to read it out of the Bill of Rights.  (Black also didn’t like the Ninth Amendment).  Another thought is that the Bill of Rights must really be about specific individual rights, which leaves the 9th and 10th out in the cold.  You can find many authorities that use this formulation, and as far as I know there is no definitive statement from the Supreme Court to the contrary.

Arguably the “official” Bill of Rights is the one in the National Archives, but, alas, that one has 12 amendments, as there were twelve proposed by Congress in 1789.

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