The Rise of the Bill of Rights

Before I return to research mode on this subject, I want to make two other points about why the first set of textual amendments became identified as a “bill of rights” around the beginning of the 20th century.

One hypothesis I am testing is whether state bills of rights drafted after 1791 looked like the first set of amendments.  State constitutions sometimes influence the Federal Constitution, and this may be a prime example.  Let’s say Indiana or California or Colorado wrote a self-styled Bill of Rights that looked a lot like the 1791 amendments.  It would be natural, I think, for people in those states to then see those amendments as a “Bill of Rights” in a way that was not true for the Framers, largely because the first set of amendments did NOT look like the state bills of rights in place at that time (say, in Virginia).

A second thought is that when the United States acquired Puerto Rico and the Philippines from Spain in 1898, Congress passed statutes organizing the governments for both colonies that included a truncated “Bill of Rights” for each.  This was the first time that a major federal statute used that phrase, which then led to many cases construing those provisions as increasing the usage of “bill of rights” to refer to the first set of amendments.  Why did Congress call what was given to these territories a bill of rights?  Probably it was a way of placating critics of imperialism (most notably William Jennings Bryan) and reassuring them that our rule in these places would be just.  (It didn’t work out that way in the Philippines, but that’s another story.)  It would be poetic if foreign conquests ending up strengthening the Bill of Rights at home.

Back to Magna Carta and other topics tomorrow

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1 Response

  1. Joe says:

    These days, the Supreme Court basically treats the BOR the same as applied to states and the feds, except for a few exceptions (e.g., obscenity and juries in some ways) but one thing that interests me is how the BOR was applied to federal territories and D.C. (of special interest in respect to the 2A) before 1865. So few cases arose covering, e.g. the 1A, in federal courts, but you’d think some disputes would arise given there were a sizable population in federal areas. The Northwest Ordinance, e.g., protected certain rights.