The Bill of Rights As a Legal Fiction

I’ve been thinking about the Bill of Rights lately.  Partly because I’m teaching a new seminar on it next Spring, and partly because I’ve written a draft paper on the Bill of Rights that I’ll be workshopping at Wisconsin next week.

In this post I want to raise the following question–What purpose is served by describing the first ten amendments as the Bill of Rights?  In other words, why do people say things like “The Bill of Rights says . . .” or “That violates the Bill of Rights.”  Strictly speaking, these phrases are meaningless.  A particular provision may say something in a given case, but there are virtually no instances in which the Bill of Rights is at issue.  As my paper notes, the only exceptions are cases like Maxwell v. Dow that addressed John Bingham’s view that the whole Bill of Rights applied to the States.  Moreover, people did not usually refer to the first set of amendments as the Bill of Rights until the twentieth century.

One thought is that “Bill of Rights” is used to elevate the less significant parts of the first ten amendments.  Suppose I am arguing that a government has imposed excessive bail on my client.  Talking about this as violating the “Bill of Rights” might sound stronger than saying “the Eighth Amendment” or the “Bail Clause.” Another thought is “Bill of Rights” gets used because it was drafted and ratified by the same generation that produced the Constitution.  What sets those amendments apart, you could say, is that they were part of the extended process that gave birth to the Constitution.

A third thought (that I’m leaning towards) is that the phrase “Bill of Rights” is just a necessary symbol that means “we care about individual rights.”  This notion is deeply embedded in the Anglo-American tradition, starting with the Magna Carta, going through the English Bill of Rights of 1689, and extending through the colonies.  It would be odd to draft a new constitution today (in another country) without having a Bill of Rights, even if the basic rights were protected elsewhere in the text.

More on this tomorrow . . .




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3 Responses

  1. Brett Bellmore says:

    “Moreover, people did not usually refer to the first set of amendments as the Bill of Rights until the twentieth century.”

    Except, of course, that they did at the time it was adopted, in the debate proposing it. See, for instance, the Anti-federalist papers.

    “This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience. Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their magna charta and bill of rights have long been the boast, as well as the security, of that nation. I need say no more, I presume, to an American, than, that this principle is a fundamental one, in all the constitutions of our own states; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high and when an appeal was made to the people to form constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is therefore the more astonishing, that this grand security, to the rights of the people, is not to be found in this constitution.

    It has been said, in answer to this objection, that such declaration[s] of rights, however requisite they might be in the constitutions of the states, are not necessary in the general constitution, because, “in the former case, every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given is reserved.” It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers, rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object to which they extend, as that of any state government — It reaches to every thing which concerns human happiness — Life, liberty, and property, are under its controul. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments. To set this matter in a clear light, permit me to instance some of the articles of the bills of rights of the individual states, and apply them to the case in question.

    For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself — The witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that of a particular state? The powers vested in the new Congress extend in many cases to life; they are authorised to provide for the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be in the state where the said crimes shall have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New-York, or carried from Kentucky to Richmond for trial for an offence, supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to face, or that he shall be fully heard in his own defence by himself or counsel?”

  2. Gerard Magliocca says:

    Some did, but most did not. Pauline Maier examined this thoroughly in her book on the ratification of the Constitution.

  3. Joe says:

    A long quote is provided by the first comment to address the argument about what “usually” was done.

    The term “usually” doesn’t mean “always,” so the rejoinder — as the reply notes — is of little value without a substantive discussion of numbers. Not suggesting this is being done by the comment, but this is important in part to avoid the selective citation approach to determine historical understandings.