What is a Bill of Rights?
Now that I’ve finished drafting “The Anti-Partisan Principle,” I’ve returned to my project on the Bill of Rights. In prior posts I’ve explained that the Supreme Court did not call the first set of constitutional amendments the Bill of Rights until 1893. I’ve expanded my search to include all federal cases, and have found only two other clear judicial references to the Bill of Rights as we understand it prior to 1893.
The first came from Justice Story (riding circuit) in 1834, in which he said that “certain amendments of the constitution, in the nature of a bill of rights, have been adopted, that fortify and guard this inestimable right of trial by jury.” (United States v. Gibert). (Justice Story also described the first set of amendments as being “in the nature of a bill of rights” in his constitutional law treatise.) The other came from Justice Swayne (riding circuit) in 1866, when he stated: “The first ten amendments to the constitution, which are in the nature of a bill of rights, apply only to the national government.” (United States v. Rhodes).
The phrase “in the nature of a bill of rights” is interesting. Why say that instead of saying that these amendments are a bill of rights? As near as I can tell, the answer is that people in the eighteenth and nineteenth centuries believed that a bill of rights needed to articulate some general principles in a way that they thought ours did not. When Madison introduced his first draft of the amendments in 1789, he told the House of Representatives that the only portion that constituted a bill of rights was the one that said:
“All power is originally vested in, and consequently derived from, the people. Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. The people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”
The first actual set of amendments, by contrast, are more specific. At some point, though, people either thought of them as general (you can look at the First Amendment of the Due Process Clause that way, for instance), or decided that generality was not what made something a true bill of rights.
More on this tomorrow, as we look at what people thought the Bill of Rights was in this era.