In the Shadow of the Bill of Rights

One point that many judges and scholars make is that our emphasis on the Bill of Rights obscures the role that constitutional structure plays in protecting liberty. In other words, people tend to pay less attention to the internal limits  within the text (bicameralism, separation of powers, federalism, and enumerated powers) than they should. There may be cause and effect here, as the decline of those internal limits in the 1930s at least corresponded with the rise of the Bill of Rights as a prominent part of America’s constitutional culture.

What gets less attention is that you can tell a similar story about the rights that are in the 1787 Constitution. Hardly anyone pays attention to the Contracts Clause now. Likewise, Article III’s guarantee of a jury trial in federal cases is treated as if it were superseded by the Sixth Amendment, though that if far from clear. But there was a time (the 19th century) when Article One, Sections Nine and Ten were referred to in Supreme Court cases as being “in the nature of a bill of rights” when no such praise was given to the first set of amendments. (The Contracts Clause also played a leading role in many major early Supreme Court cases.)

My point, which I may develop more forcefully as I present the book, is that using the Bill of Rights as a means of constitutional categorization has costs. Some get downgraded by their exclusion and some get unduly elevated by their inclusion. (More on that next time.)

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3 Responses

  1. Pam says:

    Certainly the ex-post-facto clause doesn’t seem to have much judicial support after Calder v. Bull, see Smith v. Doe (2003).

  2. Joe says:

    “no such praise was given to the first set of amendment”

    The Marshall Court had multiple contract cases and other conflicts arose with the other provisions such as habeas and paper money but other than Barron v. Baltimore, what cases involved the first eight or ten amendments?

    As to the latter matter, I can see that, but you have a list, a bill, of rights all together in the first ten amendments. The first one specifically are basic rights to a republic. Others are quite important. The label makes sense. And, with later amendments, in effect, you expanded them (things like the time Congress sits wouldn’t be on the list).

  3. Joe says:

    A few random cases came up in the antebellum period in front fo the Supreme Court but very few.