My research on the Bill of Rights is at a new stage, and I thought I’d talk about where that is going.
Two conceptions of the Bill of Rights developed in the first half of the twentieth century. One was the countermajoritarian version that we are familiar with and was expressed best by Justice Jackson in Barnette. (Basically, that the Bill of Rights is about judicial review and protecting minority rights.) The other is unfamiliar today and is the focus of the paper that I’m submitting to this law reviews. Let’s call this the “majoritarian” Bill of Rights, which refers to how that text was used to legitimate greater national authority over the states, foreign territories, and the economy. FDR’s “Second Bill of Rights” speech was the most powerful expression of this idea.
Here’s the fascinating question. Why did the first understanding oust the second one? My working hypothesis is that the Cold War had a lot to do with this, and part of my evidence for this is the shift in Harry Truman’s rhetoric on the Bill of Rights during his tenure. Truman talked about the Bill of Rights as often as FDR did and was the last President who did so in a substantive way.
How did Truman’s rhetoric change? Well, in 1945 and 1946 almost all of his references to the Bill of Rights involved the majoritarian understanding I described above. He was either talking about the GI Bill of Rights or FDR’s Second Bill of Rights (which Truman called an Economic Bill of Rights). In 1947, though, Truman starts using the Bill of Rights as a cudgel against Soviet Communism and repeats that theme in many significant speeches until 1952. More on that in the next post.