Further Thoughts On The Bill of Rights
I thought I’d provide an update on my book research. There isn’t a theme to this post. These are just random observations:
1. I am now pretty certain that Madison never called the first set of amendments the Bill of Rights after that text was ratified. Nothing in his papers (from 1791 to his death in 1836) contains such a reference.
2. I came across a civics book from the 1920s that typifies the blasé attitude that people took toward the Bill of Rights at the time. Here is the title: The Short Constitution: Being A Consideration of the Constitution of the United States, With Particular Reference to the Guaranties of Life, Liberty, and Property Contained Therein, Sometimes Designated the Bill of Rights. Sometimes!?
3. I did a search of all law review articles available on Westlaw with “bill of rights” in the title. The first one that comes up is Felix Frankfurter’s Note (from 1915). There are no others until after World War II, and the next one that refers to the first set of amendments is Charles Fairman’s famous article in 1949 attacking incorporation (“Does the Fourteenth Amendment Incorporate the Bill of Rights?“)