In 1912, Teddy Roosevelt challenged President William Howard Taft for the Republican nomination. As part of his campaign, TR came out in support of permitting voters to recall state judicial decisions. This proposal was greeted with alarm by legal elites and party conservatives, and they responded by accusing Roosevelt of jeopardizing the Bill of Rights.
For example, New York’s Republican convention, which backed President Taft, issued a resolution stating: “We believe that the guarantees of the Bill of Rights, as incorporated in the Constitution of the United States for the protection of each citizen, even if threatened by a temporary majority, shall be forever preserved.” Elihu Root, who also backed Taft, delivered the Keynote Address at the Republican National Convention and said that the recall of decisions was dangerous because “[t]he prohibitions of the Bill of Rights, which protect liberty and insure justice, cannot be enforced except through the determinations of an independent and courageous judiciary.” When a bitterly divided Convention chose Taft as its standard bearer, the President issued a statement to The New York Times arguing that the result was a defeat for those who wanted “to weaken the constitutional guaranties of life, liberty, and property, and all other rights declared sacred in the Bill of Rights, by abandoning the principle of absolute independence of the judiciary essential to the maintenance of those rights.”
This is an interesting episode for a couple of reasons. First, at this time it was still not common for people to call the first set of amendments the Bill of Rights. When that did occur, there was usually some overarching political purpose to the designation. John Bingham, for instance, called the 1791 amendments the bill of rights because he wanted them extended to the states. In 1912, the reason was that accusing TR of threatening the Bill of Rights was a useful political tactic.
Nevertheless, the charge was almost entirely empty rhetoric. Consider that in 1912 the only part of the Bill of Rights that applied to the states was the Takings Clause. Thus, how could permitting the recall of state court decisions hurt the Bill of Rights? Moreover, the state decisions that motivated TR to endorse recall involved the Due Process Clause of the Fourteenth Amendment (for instance, Ives v. South Buffalo R.R. Co.), and not the Bill of Rights. In this case, the Bill of Rights was a symbol (and a potent one) for the rule of law.