City of Boerne v. Flores and the Bill of Rights
I taught Boerne yesterday and noticed something new. Look at this passage in the Court’s opinion:
The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, “Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States.” While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal’s threat to the federal balance, it nonetheless attracted the attention of various Members. As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. (citations omitted and emphasis added)
Read closely, this sounds like a statement that the first eight amendments (not the first ten) are the Bill of Rights. The first eight amendments are described as self-executing. Then the Fourteenth and “the Bill of Rights” are called self-executing. Does it not follow that the first eight amendments are the Bill of Rights?
I doubt this is what the Court intended. Probably just a case of imprecise writing. Still, though, there is a rich tradition of calling the first eight amendments the Bill of Rights, as I explain in my book. Maybe this should be seen as the most recent one.