Abstract of Bill of Rights Article

I thought I would post the Introduction of the article that I’m working on about the Bill of Rights.  The notes are after the jump.


Gerard N. Magliocca*

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.

West Virginia State Board of Education v. Barnette[1]

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 these great assurances. I have no question in my mind as to what your answer will be.

Franklin D. Roosevelt[2]

The Bill of Rights is a sacred part of our Constitution, but that was not true until the 1940s.  This may seem like a remarkable claim because the promise of that first set of amendments was essential to convince skeptics to ratify the Constitution.[3]  Nonetheless, for over a century after they became law, the Supreme Court did not even call these basic guarantees a “bill of rights.”[4]  Judicial references to this bill of rights were still few and perfunctory between the 1890s and the early 1940s, but in 1943 Justice Robert H. Jackson’s opinion in West Virginia State School Board of Education v. Barnette recited that phrase like a talisman and made the Bill of Rights into a fixed star in our constitutional constellation.[5]  Why did this change in the legal culture occur at that time?

This Article argues that Franklin D. Roosevelt played a central role in turning the Bill of Rights into the text that we know and love. Many liberal scholars are fond of Roosevelt’s proposal for a “Second Bill of Rights” focused on economic security, but many are unaware that he discussed the original Bill of Rights more often and in greater depth than all of his predecessors put together.[6]  In a series of widely publicized speeches from 1934 to 1941, the President wielded the Bill of Rights for two purposes.[7]  First, he elevated those liberties to refute charges that the New Deal was restricting personal liberty.  The attack was false, the President argued, because the gold standard of individual freedom was the Bill of Rights, and those privileges were not being infringed.[8]  Second, Roosevelt discussed the Bill of Rights to distinguish America from Nazi Germany.[9]  Before World War II, this comparison was designed to suggest that inaction on economic reform at home could lead to the rise of domestic tyranny that would destroy the Bill of Rights.[10]  After Pearl Harbor, the President turned the Bill of Rights into a patriotic rallying cry in a remarkable address that explicitly contrasted Hitler’s beliefs to the values embodied in these special constitutional amendments.[11]

The President’s rhetorical offensive corresponded closely with the Supreme Court’s embrace of the Bill of Rights.  Beginning in 1940, the quantity and quality of the Court’s references to this phrase rose sharply.[12]  This was partly attributable to the collapse of the liberty of contract in 1937,[13] but there are some fascinating links between FDR’s take on the Bill of Rights and the themes expressed by the Court from 1940 and 1943, especially with respect to the President’s focus on the First Amendment as the most important section of the Bill of Rights.[14]  These threads were woven together by Barnette, which is replete with language about the meaning of the Bill of Rights in a world of tyrants and in a nation with a welfare state.  While there are many reasons to admire Barnette, the case’s exalted status rests on its canonization of the Bill of Rights and on its skill in crystallizing Franklin Roosevelt’s constitutional vision, as endorsed by decisive popular majorities.[15]

Part I explores the Supreme Court’s cramped view of the Bill of Rights prior to 1934, which included a long period in which the Court used the term bill of rights to refer to things other than the first set of constitutional amendments.[16]  Part II examines President Roosevelt’s rediscovery of the Bill of Rights in 1934 and provides a close reading of all of his references to that idea until 1941.[17]  Part III explores the shift in the Court’s attitude towards the Bill of Rights in the 1940s, with a special focus on Barnette.

*           Samuel R. Rosen Professor, Indiana University Robert H. McKinney School of Law.  I want to thank Pauline Maier for inspiring this project.

[1]           319 U.S. 624, 638 (1943).

[2]           On Addressing the Critics (Jun. 28, 1934), in FDR’s Fireside Chats, 33 (Russell D. Buhite & David W. Levy, eds. 1992).

[3]           See The Federalist No. #84 (Alexander Hamilton) (arguing against the inclusion of a bill of rights in the Constitution); see generally Pauline Maier, Ratification:  The People Debate the Constitution, 1787-1788 (2011) (describing the role of a bill of rights in the ratification debate).

[4]           See Monongahela Nav. Co. v. United States, 148 U.S. 312, 324 (1893) (containing the first unambiguous Supreme Court reference to the Bill of Rights as the equivalent of the first ten constitutional amendments).

[5]           See infra Part III.B.; cf. Barnette, 319 U.S. at 642 (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).

[6]           See Franklin D. Roosevelt, Message on the State of the Union (Jan. 11, 1944), in 13 Public Papers and Addresses of Franklin D. Roosevelt 32, 40-42 (Samuel I. Rosenman ed., 1950) (discussing the need for a Second Bill of Rights) [hereinafter Roosevelt Papers]; Cass  R. Sunstein, The Second Bill of Rights:  FDR’s Unfinished Revolution and Why We Need It More Than Ever (2004); infra text accompanying notes — (discussing the five instances prior to 1934 in which a sitting president cited the Bill of Rights).

[7]           See Franklin D. Roosevelt, Radio Address on the 150th Anniversary of the Ratification of the Bill of Rights (Dec. 15, 1941), in – Roosevelt Papers, supra note 6, at —; Franklin D. Roosevelt, Acceptance Speech to Democratic Convention, (July 19, 1940), in 9 Roosevelt Papers, supra note 6, at —; Franklin D. Roosevelt, Opening of the New York’s World’s Fair, (Apr. 30, 1939), in – Roosevelt Papers, supra note 6, at —; Franklin D. Roosevelt, Address to a Joint Session on the 150th Anniversary of Congress (Mar. 4, 1939), in – Roosevelt Papers, supra note 6, at —; Franklin D. Roosevelt, Message on the State of the Union (Jan. 4, 1939), in – Roosevelt Papers, supra note 6, at —; Franklin D. Roosevelt, Address on Constitution Day (Sept. 17, 1937), in 6 Roosevelt Papers, supra note 6, at —; cf. Franklin D. Roosevelt, Proclamation 2524—Bill of Rights Day (Nov. 27, 1941), 3 C.F.R. 272, 272 (1938-1943).

[8]           See supra text accompanying note 2; see also 1939 State of the Union, supra note 7, at — (boasting that New Deal reforms were accomplished “without a scratch on freedom of speech, freedom of the press or the rest of the Bill of Rights”).

[9]           See, e.g., 150th Anniversary of Congress Address, supra note 7, at — (“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.”).   For the best discussion of the relationship between our constitutional rights and totalitarianism in Europe, see Richard A. Primus, The American Language of Rights 177-233 (1999).

[10]         See, e.g., Constitution Day Address, supra note 7, at — (“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.”).

[11]         See 150th Anniversary of the Bill of Rights Address, supra note 7, at — (“[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 . . .”).

[12]         See infra Part III.

[13]         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) (suggesting that in the absence of heightened scrutiny of economic regulations “[t]here 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”).

[14]         See, e.g., Bill of Rights Day Proclamation, supra note 7, at — (“It is fitting that the anniversary of its adoption should be remembered by the Nation which, for one hundred and fifty years, has enjoyed the immeasurable privileges which that charter guaranteed:  the privileges of freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the free right to petition the Government for redress of grievances”).

[15]         This Article confines its analysis of the Bill of Rights to what Franklin Roosevelt and the Supreme Court said, though that research could be expanded to include Congress, legal academics, and attorneys during the New Deal era.


[16]         The Supreme Court has frequently referred to state bills of rights or the English Bill of Rights of 1689.  See An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crowne (Bill of Rights), 1688, 1 W. & M., c. 2 (Eng.).  This Article addresses only our national Bill of Rights.


[17]         After 1941, all of Roosevelt’s citations to the Bill of Rights were in the context of his second (or economic) bill of rights, which is not considered here.


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1 Response

  1. Joe says:

    Sounds great. Something to whet the palate as we wait for the Mr. 14A book.