Formal Bills of Rights vs. Instrumental Ones

Below the fold I will post the Introduction of my revised paper, which I’m tentatively calling “The Bill of Rights Reconsidered.”  (It’s not a great title, but it’s good enough for now.)  As some readers may recall, last year I drafted a paper that focused on how Franklin D. Roosevelt elevated the status of the Bill of Rights in the 1930s.  Once I decided to turn this project into a book, I realized that my draft was inadequate.  It noted that most people did not call the first set of amendments a bill of rights until the 1890s, but did not offer an explanation for that curious fact.  I also did not explain why the terminology starting changing around 1900.  Those were pretty significant holes, but now I think that I have got them covered.

A theme of the paper is that our understanding of a bill of rights moved from a formal definition in the eighteenth and nineteenth centuries to a practical one in the twentieth and twenty-first.  Alexander Hamilton anticipated this change in Federalist #84, which I think has been misread for a long time.  (More on that later this week.)


Gerard N. Magliocca*

 Our Constitution, unlike most modern ones, does not contain any formal declaration or bill of rights.

Justice Samuel Miller (1880)[1]

The Bill of Rights is a sacred part of our Constitution, but that was not true until the 1940s. Not many Americans called the first set of amendments a bill of rights during the eighteenth and nineteenth centuries, and no special importance was attached to that text during the early twentieth century.[2] In the 1930s, though, the Bill of Rights became iconic due in part to the rise of Nazi Germany, the collapse of Lochner, and Franklin D. Roosevelt’s decision to emphasize that term in major speeches defending the New Deal.[3] By the early 1940s, the ratification of the Bill of Rights was being commemorated for the first time, President Roosevelt was using the Bill of Rights as a rallying cry for World War Two, and the Supreme Court was canonizing the Bill of Rights in West Virginia State School Board of Education v. Barnette.[4]

This Article argues that the Bill of Rights was an invention of the twentieth century rather than a creation of the Founding Fathers. To prove this claim, we must untangle the following false syllogism:

One: Many Anti-Federalists criticized the Constitution for lacking a bill of rights.[5]

Two: Congress proposed and the states ratified the first set of amendments in response to those concerns.[6]

Three: Therefore, these amendments were a bill of rights.

The flaw in this reasoning is that what was ratified in 1791 protected rights but was not seen as a bill of rights. At the time, a bill of rights was expected to have two formal traits that were absent from the first set of amendments.[7] First, a bill of rights came at the beginning of a constitution following a preamble.[8] Second, a bill of rights contained aphorisms about popular sovereignty, liberty, or equality comparable to what was stated in the Declaration of Independence or the Virginia Declaration of Rights of 1776.[9] All of the self-described state bills or declarations of rights in 1791 shared these two formal characteristics, and in the First Congress James Madison proposed what he called a bill of rights that resembled those texts.[10]

What Congress proposed, by contrast, came at the end of the Constitution and was free of rhetoric.[11] Accordingly, hardly anyone referred to the first set of amendments as a bill of rights in the 1790s, and not many more did so until the 1890s.[12] When the term was used, judges were careful to say that the first set of amendments were “in the nature of a bill of rights” and not a real bill of rights.[13] Moreover, almost every state bill of rights ratified before 1900 did not look to the first set of amendments as a model and instead followed the practice of making abstract statements at the start of their constitutions.[14]

The use of the Bill of Rights in the modern sense started in earnest after the Spanish-American War.[15] When the Philippines was acquired from Spain, Congress gave that territory an abbreviated set of rights drawn from the first set of amendments to mollify critics of colonialism.[16] This act, along with Supreme Court cases calling these provisions a bill of rights, linked the first set of amendments to a bill of rights and helped create an alternative to the traditional meaning of that term.[17] In effect, a bill of rights started being seen in practical rather than formal terms. Nonetheless, this change was gradual, and there was no sense that this bill of rights was a constitutional pillar.

The Bill of Rights did not become THE BILL OF RIGHTS until the domestic and global turmoil of the 1930s. Although liberals are fond of President Roosevelt’s proposal for a “Second Bill of Rights” protecting economic security, most are unaware that FDR discussed the First Bill of Rights more often and in greater depth than all of his predecessors put together.[18] Roosevelt elevated the Bill of Rights in part to deflect charges that the New Deal was invading individual liberty. The attack was false, he said, because the gold standard of freedom was the Bill of Rights, and those liberties were not being infringed.[19] He also highlighted the Bill of Rights to distinguish the United States from the Third Reich.[20] Prior to World War Two, this comparison was intended to suggest that inaction on social reform at home could lead to an equivalent domestic tyranny that would erase our rights.[21] A week after Hitler declared war on America, however, the President refashioned the Bill of Rights into a patriotic symbol in a radio address that explicitly contrasted the values in the first set of constitutional amendments with Nazism.[22] The instrumental view of a bill of rights was supplanting the formal view held by the Founders and by nineteenth-century Americans.

FDR’s take on the Bill of Rights reflected a broader change in popular and legal culture, and in 1940 the Supreme Court joined the bandwagon and began citing the Bill of Rights much more often and with much greater respect.[23] In the wake of the New Deal, the Court needed a fresh justification for judicial review, and the Bill of Rights was a useful legal fiction for that purpose.[24] The horrors of fascism also sensitized the Court to the symbolic power of the Bill of Rights, and Justice Robert H. Jackson wove these threads together in Barnette with stirring words about the vitality of the Bill of Rights in a nation with a welfare state and a world of tyrants.[25] Barnette’s invalidation of a mandatory flag salute for public schoolchildren was a milestone for civil liberties, but the opinion also grafted the Bill of Rights onto the Constitution for all time.

Part I explores the original understanding of a bill of rights and explains why the first set of amendments did not fit within that view. Part II shows that this understanding remained stable until the 1890s by examining how people described the first set of amendments and by looking at the state bills of rights written between 1791 and 1900. Part III discusses the gradual shift to the modern usage of the Bill of Rights in the early twentieth century and its link to colonialism. Part Four traces how America fell in love with the Bill of Rights in the late 1930s and early 1940s while paying special attention to Franklin D. Roosevelt’s speeches on that subject. Part V explores the shift in the Supreme Court’s stance toward the Bill of Rights at about the same time, concluding with the masterpiece that is Barnette.

*           Samuel R. Rosen Professor, Indiana University Robert H. McKinney School of Law. I thank David Bernstein, the late Pauline Maier, Anna Su, Robert Tsai, Amanda L. Tyler, and those who participated in my faculty workshops at UC Davis and the University of Wisconsin for their comments on prior drafts of this paper. Special thanks to my research assistant Beau Browning for his help in locating key sources.

[1]           Samuel F. Miller, The Constitution of the United States: Three Lectures Delivered Before the University Law School of Washington DC 59 (1880).

[2]           See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 284-87 (1998) (explaining that the first set of constitutional amendments was rarely called a bill of rights before Reconstruction); Pauline Maier, Ratification: The People Debate The Constitution, 1787-1788, at 459-465 (2012) (making a similar point); Pauline Maier, The Strange History of the Bill of Rights (Apr. 10, 2013), (presenting additional evidence to back her claim); see also Robertson v. Baldwin, 165 U.S. 275, 281 (1897) (marking the first time that the Supreme Court called the first set of amendments “the Bill of Rights”). Since judges and scholars disagree about whether the Bill of Rights consists of the first ten or first eight amendments, this Article uses the phrase “first set of amendments.”

[3]           See Franklin D. Roosevelt, Acceptance Speech to Democratic National Convention, (July 19, 1940), in 9 Public Papers and Addresses of Franklin D. Roosevelt 301 (Samuel I. Rosenman ed., 1950) [hereinafter Roosevelt Papers]; Franklin D. Roosevelt, Opening of the New York’s World’s Fair, (Apr. 30, 1939), in 8 Roosevelt Papers, supra, at 298; Franklin D. Roosevelt, Address to a Joint Session on the 150th Anniversary of Congress (Mar. 4, 1939), in 8 Roosevelt Papers, supra, at 152-53 [hereinafter 150th Anniversary of Congress Speech]; Franklin D. Roosevelt, Message on the State of the Union (Jan. 4, 1939), in 8 Roosevelt Papers, supra, at 6 [hereinafter 1939 State of the Union]; Franklin D. Roosevelt, Address on Constitution Day (Sept. 17, 1937), in 6 Roosevelt Papers, supra, at 363, 366-67; Fireside Chat (Jun. 28, 1934), in FDR’s Fireside Chats 33 (Russell D. Buhite & David W. Levy, eds. 1992) [hereinafter Fireside Chats]; see generally John W. Wertheimer, A “Switch in Time” Beyond the Nine: Historical Memory and the Constitutional Revolution of the 1930s, 53 Studies in Law, Politics and Soc’y 1 (exploring the shift in the Bill of Rights from obscurity to fame).

[4]           See, e.g., Franklin D. Roosevelt, Radio Address on the 150th Anniversary of the Ratification of the Bill of Rights (Dec. 15, 1941), in 10 Roosevelt Papers, supra note 4, at 555 (declaring that Nazi Germany sought “the overthrow, throughout the earth, of the great revolution of human liberty of which our American Bill of Rights is the mother charter”) [hereinafter Bill of Rights Day Speech]; Franklin D. Roosevelt, Bill of Rights Day Proclamation (Nov. 27, 1941), in 10 Roosevelt Papers, supra note, at 497-99 (creating the custom of celebrating the anniversary of the ratification of the Bill of Rights); see also West Virginia State Sch. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”).

[5]           See, e.g., The Federalist No. 84, at 575-81 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (responding to Anti-Federalist attacks on the Constitution for omitting a bill of rights) [hereinafter Federalist No. 84).

[6]           See 2 J. Elliot, The Debates in the Several State Conventions On The Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 338 (2d ed. 1836) (quoting the First Congress’s resolution proposing the first set of amendments, which stated: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added . . .”).

[7]           Thus, the key word in Justice Miler’s statement denying the existence of a federal bill of rights is “formal.” See supra text accompanying note 1.

[8]           See, e.g., Federalist No. 84, supra note 5, at 575 (“[T]he constitution of New-York has no bill of rights prefixed to it . . . .” (emphasis added)).

[9]           See Declaration of Independence, para. 2 (1776) (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”);       Va. Declaration of Rights, art. II (1776) (“All power is vested in, and consequently derived from, the people.”); see also Federalist No. 84, supra note 5, at 579 (dismissing “those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government”).

[10]          See Vt. Const. of 1791, art. I (“A Declaration of the Rights of the Inhabitants of the State of Vermont”); N.H. Const. of 1784, art. I (“The Bill of Rights”); Mass. Const. of 1780, art. I (”Declaration of the Rights of the Inhabitants of the Commonwealth”); NC. Const. of 1776, art I. (“A Declaration of Rights”); Md. Const. of 1776 (starting with a broad “Declaration of Rights”); Va. Const. of 1776 (beginning with “A Declaration of Rights”); see also 1 Annals of Cong. 433 (statement of Rep. Madison) (proposing that “there be prefixed to the Constitution” three general principles); see id. at 436 (stating that this change, if adopted, “may be called a bill of rights”).

[11]          See Maier, supra note 3, at 462 (“The proposed amendments did not, in fact, look like a bill or declaration of rights as Americans of the late eighteenth century knew them.”).

[12]          One important exception was Congressman John A. Bingham, who drafted Section One of the Fourteenth Amendment and did call the first set of amendments a bill of rights in arguing that its requirements should extend to the actions of state governments. See Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 114-15, 117 (2013).

[13]          See, e.g., Monongahela Nav. Co. v. United States, 148 U.S. 312, 324 (1893) (The first 10 amendments to the constitution, adopted as they were soon after the adoption of the constitution, are in the nature of a bill of rights”); United States v. Rhodes, 27 F. Cas. 785, 790 (C.C.D. Ky. 1866) (No. 16,151) (Swayne, J., riding circuit) (“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. Gibert, 25 F. Cas. 1287, 1294 (C.C.D. Mass. 1834) (No. 15,204) (Story, J., riding circuit) (“[C]ertain amendments of the constitution, in the nature of a bill of rights, have been adopted, which fortify and guard this inestimable right of trial by jury.”).

[14]          See infra text accompanying notes —.

[15]          Cf. Downes v. Bidwell, 182 U.S. 244, 277 (1901) (reviewing the first constitutional claim from Puerto Rico and stating that the Court was not “expressing an opinion how far the bill of rights contained in the first eight amendments is of general and how far of local application.”).

[16]          See The Philippine Organic Act, 32 Stat. 691, 692 (1902) (Philippines); see also In re Kempner, 195 U.S. 100, 123 (1904) (describing these protections as “the familiar language of the Bill of Rights” even though the Act did not call these provisions a bill of rights); “Mr. Bryan’s Speech of Acceptance,” The New York Times, Aug. 9, 1900, at 8 (reproducing William Jennings Bryan’s acceptance speech for his presidential nomination by the Democrats, in which he attacked the Republican Party for claiming “the right to treat millions of people as mere ‘possession’ and [to] deal with them unrestrained by the constitution or the bill of rights”). Something similar occurred in Puerto Rico, which was given a self-styled bill of rights in 1917 that was taken from the first set of amendments. See Puerto Rico Federal Relations Act of 1917, 39 Stat. 351, 351 (Puerto Rico).

[17]          See, e.g., Springer v. Government of the Philippine Islands, 277 U.S. 189, 200 (1928); Carino v. Insular Gov’t of the Philippines, 212 U.S. 449, 459 (1909). I say “alternative” because modern state bills of rights still follow the traditional model. See Alaska Const. art. I (“Declaration of Rights”); Hawaii Constitution, art. I, (“Bill of Rights”).

[18]          See Franklin D. Roosevelt, Message on the State of the Union (Jan. 11, 1944), in 13 Roosevelt Papers, supra note 3, at 40-42 (discussing the Second Bill of Rights); Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (2004) (discussing positive rights); infra text accompanying notes — (discussing earlier president references to the Bill of Rights).

[19]          See Fireside Chats, supra note 3; at 33 (“Turn to the Bill of Rights of the Constitution, which I have solemnly sworn to maintain and under which your freedom rests secure. Read each provision of that Bill of Rights and ask yourself whether you personally have suffered the impairment of a single jot of those great assurances.”); see also 1939 State of the Union, supra note 3, at 6 (boasting that the New Deal’s reforms were made without curbing “freedom of speech, freedom of the press or the rest of the Bill of Rights”).

[20]          See 150th Anniversary of Congress Address, supra note 3, at 152 (“In that Bill of Rights lies another vast chasm between our representative democracy and those reversions to personal rule which have characterized these recent years.”).

[21]          See Constitution Day Address, supra note 3, at 366-67 (“Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress . . . Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation.”).

[22]          See Bill of Rights Day Speech, supra note 4, at 554-55 (“[I]n the year 1933, there came to power in Germany a political clique which did not accept the declarations of the American bill of rights as valid . . .”).

[23]          See Wertheimer, supra note 3, at 11-16, 18-25 (discussing how the Bill of Rights was rediscovered by civic society). Ironically, the first Supreme Court case expressing the newfound enthusiasm for the Bill of Rights was Minersville School District v. Gobitis, which Barnette overruled. See infra text accompanying notes —; see also Robert L. Tsai, Reconsidering Gobitis: An Exercise in Presidential Leadership, 86 Wash. U. L. Rev. 363 (2008) (examining the case).

[24]          See West Coast Hotel v. Parrish, 300 U.S. 379 (1937); cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments.”). I say “legal fiction” because the formal authority of the first set of amendments does not depend on whether that text is called the Bill of Rights.

[25]          See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); infra text accompanying notes —.



Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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