The Bill of Rights as a term of art.

• Author: Magliocca, Gerard N.

It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing. (1)

INTRODUCTION

The Bill of Rights is a sacred part of our Constitution, but why do we use that term to describe the first set of amendments? (2) A legal claim is not stronger if the guarantee falls within the Bill of Rights as opposed to, say, the Equal Protection Clause or a part of Article I. Moreover, the Supreme Court has repeatedly declined to hold that a right in the Bill of Rights is ipso facto a fundamental right, (3) and hardly anyone now thinks that Amendment III or Amendment VII carries the same weight as Amendment I. (4) What, then, is the point of saying that all of these provisions are part of a bill of rights when the text ratified in 1791 does not use that phrase? (5)

This Article argues that the use of the "Bill of Rights" to describe the first set of constitutional amendments emerged long after the Founding as a justification for expanding federal power at home and abroad. In making that claim, I challenge two common misconceptions about the Bill of Rights. One is that the first set of amendments was known by that name from the start. (6) This is not true. James Madison never said that what was ratified in 1791 was a bill of rights, (7) and that label was not widely used for those provisions until after 1900. (8) The second fallacy is that the Bill of Rights was a term of art designed to limit government through judicial review. (9) While this is the modern understanding of the Bill of Rights, that idea did not become part of constitutional grammar until World War II. (10)

During the ratification debates on the Constitution, some Anti-Federalists protested that adding a bill of rights to the proposal was tantamount to throwing "a tub to the whale," by which they meant that such a text would be just a decoy that would legitimate federal power. (11) In practice, this was what calling the 1791 amendments the Bill of Rights mostly did when that label was used prior to 1945. The first move in this direction came during Reconstruction, when a few members of Congress, especially John A. Bingham, used that term of art because they wanted to overturn Barron v. Baltimore (12) and extend the first set of amendments to the states. (13) By calling that list the Bill of Rights, Bingham was trying to persuade his colleagues that this expansion of national power was a valid exception to states' rights. (14)

While Bingham did not change either the name or the scope of those amendments during his era, both aspects began to assume their modern form after the Spanish-American War. Critics of imperialism such as William Jennings Bryan argued that our democracy could not endure if we withheld the "Bill of Rights" from the Philippines. (15) President William McKinley and Congress answered this challenge by extending part of the first set of amendments in what was later called the Philippine Bill of Rights. (16) This watered-down version of the original was vital in easing concerns about unprecedented federal control over territories that would never be admitted as states.

The New Deal and World War II elevated the Bill of Rights to its present iconic status in an effort to increase national power still further. Liberals are fond of Franklin D. Roosevelt's "Second Bill of Rights" that sought to grant positive rights such as health care and education, (17) but FDR also brandished the first Bill of Rights to deflect charges that the growth of the welfare state threatened individual liberty. The attack was false, the President explained in one of his early Fireside Chats, because the gold standard of liberty was the Bill of Rights, and those freedoms were not being infringed. (18)

Roosevelt also stressed the Bill of Rights to distinguish the United States from the Third Reich. (19) Initially this comparison was used to suggest that federal inacdon on economic reform could lead to a domestic tyranny that would destroy the Bill of Rights. (20) Later on the President used the contrast to argue that Nazism presented a threat that required bold federal action (such as military conscription in peacetime). (21) Indeed, a week after Hitler declared war on America, FDR transformed the Bill of Rights into a patriotic emblem in an address that attacked the Fuhrer by name and justified the war effort. (22) In this instance, as in the aftermath of the Spanish-American War, the influence of foreign affairs on our constitutional law comes into focus in a way that most interpretive theories do not fully capture. (23)

Part I explores the original understanding of a bill of rights and looks at why the first set of amendments was not considered one at the Founding. Part II discusses how the term was first advanced to legitimate the growth of federal power through incorporation. Part III examines how that rhetoric expanded after the Spanish-American War to support imperialism. Part IV assesses how the Bill of Rights was wielded by President Roosevelt to justify the welfare state and meet the challenge presented by Nazi Germany. Part V concludes by tracing the evolution of the Bill of Rights into its present role as a tool for supporting judicial review.

1. THE ORIGINAL UNDERSTANDING

   This Part reviews the original understanding of a bill of rights. Given the importance of this phrase in American constitutionalism, it is rather surprising that so little has been written on that subject. We must explain why the first set of amendments was rarely called a bill of rights in the eighteenth and nineteenth centuries to grasp why and how that parlance changed. Part of the answer is that the term was reserved (except by Alexander Hamilton) for a text that appeared at the front of a constitution and made sweeping claims about natural rights and popular sovereignty, neither of which were attributes of the first set of amendments. Moreover, no purpose was served by using "The Bill of Rights" to describe what was ratified in 1791 as there was for the Declaration of Rights by the Continental Congress, for the state bills of rights written during the Revolution, or for most of the Anti-Federalists seeking to defeat the Constitution.

   1. A Puzzling Omission

      Let us begin with a fact that is hard to believe: there is little evidence that the first set of amendments was called a bill of rights or a declaration of rights (let alone "The Bill of Rights") when Congress proposed that text in 1789 or when it was ratified in 1791. (24) Instead, almost everyone referred to the "amendments to the Constitution." (25) Nobody in the First Congress described what was sent to the states as a bill of rights.26 Nobody in the ratifying state legislatures used that term for the amendments,27 nor did President Washington. (28) I do not claim that those magic words were never used to describe the first set of amendments, as Jefferson did write one letter in 1792 that stated: "[M]y objection to the Constitution was, that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies, [and] trial by jury.... The sense of America has approved my objection and added the bill of rights." (29) But this is the only such statement that I can find, which means that I am sure that this was not common usage then. (30)

      The absence of references to the Bill of Rights in the 1790s is telling because the issue of whether the Constitution should have a bill of rights was hotly debated during the ratification debates on the original text. (31) If the issue had not been raised at that time, then one might not attribute much significance to the fact that people did not call the first set of amendments a bill of rights. But we know that the Anti-Federalists protested at length about the need for a bill of rights, and New York, North Carolina, and Virginia proposed the addition of a bill of rights at the conclusion of their ratifying conventions. (32) Why then did most people not consider what was ratified a bill of rights?

      One place to look for an answer is in the state bills of rights of that era. Six states had a self-described bill or declaration of rights in 1791 (Maryland, Massachusetts, New Hampshire, North Carolina, Vermont, and Virginia). (33) One trait that all but one of these bills of rights shared was that they came right before or after a preamble. (34) The first set of amendments, by contrast, appears at the end of the Constitution, mainly because Roger Sherman argued that what was proposed in 1787 should be kept apart from any future changes. (35) The other characteristic that stands out in the state bills of rights is that they made abstract claims about government. (36) For example, Virginia's Declaration of Rights stated:

      [A]ll men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. (37) This statement and others of a similar bent in the Virginia Declaration were widely admired and copied, both by Jefferson in drafting the Declaration of Independence and by the other state bills of rights. (38) The first set of amendments, of course, does not make these sorts of claims. (39) "A well regulated Militia, being necessary to the security of a free State" is an exception, (40) but the rest of what we consider the Bill of Rights consists of specific rules, broad standards, or rules of construction.

      The observation that the first set of amendments did not look like...