Becoming the Bill of Rights
posted by Gerard Magliocca
One aspect of John Bingham’s work that I will emphasize in my next set of revisions to the book is his innovative use of the “Bill of Rights” to describe the first ten constitutional amendments. While this shorthand was used before the 1860s, it was not common. The Supreme Court never referred to the first set of amendments as the Bill of Rights until after the Civil War, and the phrase was not used much in ordinary discourse. Bingham defined what he meant by the bill of rights in one of his major speeches to the House in 1866, but he was definitely ahead of his time (and not for the first time).
Here is one interesting example of the status of the Bill of Rights in the early 20th century. When the Justices addressed (and rejected) an incorporation claim in Twining v. New Jersey, a 1908 opinion, they described the issue this way:
“This view is based upon the contention which must now be examined, that the safeguards of personal rights which are enumerated in the first eight articles of amendment to the Federal Constitution, sometimes called the Federal Bill of Rights, though they were by those Amendments originally secured only against national action, are among the privileges and immunities of citizens of the United States.”
The fact that the Court felt the need to explain this definition (and in a hesitant sort of way), suggests that even at this point the idea that the first set of amendment should be read holistically or as anything special was not established. That concept only developed gradually, starting in the 1930s as a response to the rise of fascism overseas and the New Deal here. (More on that later.)