What is a Bill of Rights?

102px-James_Madison_engrvNow 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.

 

 

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1 Response

  1. Joe says:

    Fletcher v. Peck notes:

    “If, under a fair construction the Constitution, grants are comprehended under the term “contracts,” is a grant from the State excluded from the operation of the provision? Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself?

    The words themselves contain no such distinction. They are general, and are applicable to contracts of every description. If contracts made with the State are to be exempted from their operation, the exception must arise from the character of the contracting party, not from the words which are employed.

    Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension

    Page 10 U. S. 138

    the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State.

    No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

    A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.”