The Specificity of the Bill of Rights
Lately I’ve been posting about some conceptual puzzles surrounding the Bill of Rights. When did the first set of amendments start getting called the Bill of Rights? Why do we call the first set of amendments the Bill of Rights? And does the Bill of Rights refer to the first eight or the first ten amendments?
Now I want to introduce another issue: Is the Bill of Rights specific? You can find many cases and other cites that refer to its provisions as specific. And while some parts of the Bill of Rights are specific (take the Third or the Seventh Amendments), I’m not sure that description is correct overall. The Due Process Clause is not specific. Neither are the freedom of speech or the free exercise of religion.
What do people mean when they say that the Bill of Rights is specific? For some, the specificity justifies judicial review enforcing these guarantees against legislative acts. In other words, some people call the Bill of Rights specific to rebut the counter-majoritarian difficulty. For others, describing the Bill of Rights as specific is a tool to justify unwritten rights. Here specificity means that the Bill of Rights is not comprehensive and cannot meet modern needs. A final thought about specificity is that some use the term to say that courts should only enforce the most specific provisions and should leave the broader ones (like due process) out in the cold.
Anyway, I’ve decided that the Bill of Rights as a whole (not the individual provisions) will be the subject of my next book and probably some articles. (“Four Horsemen” goes on, but it will take years.) I think I’m going to call it “The Heart of the Constitution,” as that’s a nifty description of the Bill of Rights from Huge Black, but we’ll see.