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Becoming the Bill of Rights

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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19 Responses

  1. Joe says:

    Happy Human Rights Day!

  2. Brett Bellmore says:

    Thomas Jefferson’s letter to Madison, 20 Dec. 1787:

    “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”

  3. Brett Bellmore says:

    In short, do you suppose the term was used at the founding, and then fell out of use in the legal community? Though not necessarily out of general use?

    The legal community does seem prone to these fads, after all, and episodes of group-think, which strike laymen as rather inexplicable.

  4. Kyle says:

    Gerard: Apropos of your post, I ran a search for “Bill of Rights” using the Google nGram function: http://noncuratlex.com/?p=1158

  5. Brett Bellmore says:

    I think it’s pretty clear, given the sources I linked to, that Bingham was no innovator in calling the first 8 or 10 amendments a “Bill of Rights”; They were called that before they were even written, being a response to a demand by anti-Federalists for a “bill of rights”.

    I’m as fond of the guy as anybody, but he didn’t originate this.

    There were long periods when the judiciary didn’t refer to it. I suspect some embarrassment was involved; Adulterers and murders probably don’t mention the Decalogue very often, either. The judiciary had a lot to be embarrassed about in regards to non-enforcement of the bill of rights.

  6. Eric Hodgdon says:

    If the modern use stems from the 1930s, then conditions in these United States is more ominous than most people understand or comprehend.

    The aftermath of the Civil War, the influx of Eastern Europeans, and the rise of Industry, brought many changes to the US.

    How does the ‘old guard’ cling to the reins of power?

    Several ways are evident. One was the cessation of increasing the numbers in the House of Representatives, as was done in 1929 from Public Law 62-5.

    Another way is to re-frame how the federal government is considered by the public. Such would be to use the term Bill of Rights which indicates to those not steeped in the ways of the country to view these rights as the only ones there are.

    And, precisely so has happened to this day, where the courts continually disregard what the Constitution means and is for.

    The Constitution “is for” listing the limits on the federal government, and it “means” what it says. However, seemingly “good intentions” became methods of abuse and usurpation, leading to the current non-Republican form of government.

  7. Shag from Brookline says:

    I eagerly await more from Gerard on this:

    “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.)”

    Perhaps some may construe this as conflating “fascism overseas” and the “New Deal here.” I trust this was not Gerard’s intent.

    ********

    Perhaps Eric could elaborate on his comment closing:

    ” … leading to the current non-Republican form of government.”

    I assume his focus is upon the federal government, which happens to have a Democrat heading the Executive and a Democratic majority in the Senate. Perhaps Eric can point to the time in the past when we last had a “Republican form of government.” Is Eric blaming SCOTUS and other courts of today for a “non-Republican form of government”? Just asking.

  8. Gerard N. Magliocca says:

    Well, I didn’t say that Bingham invented the use of “Bill of Rights” to describe the first ten amendments. (In fact, I said the opposite.)

  9. Joe says:

    Jefferson called it a (small b) bill of rights.

    Great. That’s fine. How was the term used by others after that? There are very few rulings by the USSC, e.g., concerning provisions of the Bill of Rights before the Civil War to my knowledge, e.g. How did the USSC use the term then?

    BB alluded to the “non-enforcement” of the BOR. That is, in effect, the USSC allowed an “amendment” to the Constitution by the government as if the rights weren’t there any more. BB tends to reference the New Deal as the time when the USSC or Congress “amended” the Constitution w/o following the path of Article V, making that provision “unnecessary.”

    Now and then, we learn of other times.

  10. Joe says:

    [the quotes are used advisably -- it follows his understanding]

  11. Brett Bellmore says:

    Well, something does kind of have to be brought into existence, before becoming a proper noun, hence the early lower case references. I’m not sure what you’re really getting at here, beyond that the legal community strangely refrained from identifying these particular amendments as the Bill of Rights, even though they were so referred to even before being written.

    My point would be that this quite possibly says more about the judiciary, than the Bill of Rights.

  12. Joe says:

    It is recognized that the concept of “bill of rights” was used in the framing generation. The question then becomes how it was used afterwards, not just by “the legal community,” but generally speaking. The use of capital letters would be somewhat interesting too. So, it wouldn’t just be a matter of the “judiciary.” It would be a societal thing.

  13. Shag from Brookline says:

    The “judiciary” is more than the Supreme Court; it is more than the federal courts. Consider the time before the “Cert” procedure limited the number of cases considered by the Supreme Court. Were rights under the bill of rights being asserted in state and lower federal courts? Surely there were some lawyers that understood the rights, or some of them, in the bill of rights, whatever they called them. Perhaps not enough appeals were taken (including for economic limitations) to get to the Supreme Court, assuming the state and lower federal courts were not recognizing such rights in cases before them. Prior to the Civil War Amendments, when the bill of rights limited not the states but the federal government, the Supreme Court overturned (as I recall) less than a handful of federal statutes. Following such Amendments, application (incorporation) of the bill of rights to state actions was not instantaneous or automatic. In fact, all of the first 8 amendments have not yet been incorporated to apply to the states. We had the Gilded Age, the Lochner Era, the Roaring Twenties, with some temperance from the Progressive Era, all before the New Deal. But it still took years for recognition for more and more of the rights under the bill of rights. The judiciary can take its share of the blame. But as Joe says, there is the “societal thing” aspect. Some in Congress, like Rep Emanuel Celler, tried to get Congress to act. I doubt that the lack of enforcement of such rights was causally related to ” … the legal community strangely refrained from identifying these particular amendments as the Bill of Rights, even though they were so referred to even before being written.” There were many in the legal community who tried in local – police – courts to assert such rights, perhaps mostly unsuccessfully with their clients unable to afford appeals. This brings me to the ACLU, along with the NAACP, and other progressive legal groups that worked in the trenches for a long time, pursing such rights, eventually achieving successes. I call this progress.

  14. Brett Bellmore says:

    ” Consider the time before the “Cert” procedure limited the number of cases considered by the Supreme Court.”

    Prior to the 14th amendment, the number of cases considered by the Supreme court was seriously limited by the fact that it was practically impossible to find a legal basis for a state level case to be moved to the federal courts, while the federal government wasn’t actually doing all that much to generate cases itself. Why, they were actually passing laws slow enough that you could read them all!

    And, yes, the ACLU deserves a lot of credit for pursuing a defense of those civil liberties it actually approves of. Good thing we’ve got other civil liberties organizations, such as the NRA, or SAF, to fill in the gaps; If it had been up to the ACLU, the 2nd amendment would still be a dead letter.

  15. Shag from Brookline says:

    The “Cert” procedure came about well AFTER the 14th Amendment. Prior to the Civil War Amendments, many Justices on SCOTUS were slaveowners.

    Brett’s:

    ” … If it had been up to the ACLU, the 2nd amendment would still be a dead letter.”

    fails to point out that there would have been many less dead if the ACLU had prevailed. To classify the NRA as a civil rights organization would justify so classifying the KKK.

  16. Joe says:

    “Why, they were actually passing laws slow enough that you could read them all!”

    Yes, back in 1832, when the country was a fraction of the population now, when things were much more local, when modern communications that made connection to space nearly instantaneous was barely imaginable, when the states were entrusted with civil rights etc., there were less federal laws. And, still, I doubt that each member of Congress actually read each and every one that passed.

    “the number of cases considered by the Supreme court was seriously limited by the fact that it was practically impossible to find a legal basis for a state level case to be moved to the federal courts”

    Partially because the USSC was given less jurisdiction to take cases than they later was given. I doubt,e.g., today it would have taken so long for SCOTUS to decide if blacks were “citizens” for purposes of the P&I Clause. But, then, if a federal law was not challenged or some other limited reasons, state courts that applied the federal constitution was the final decision-maker even when federal questions were at stake. Such is partially Shag’s point.

    “If it had been up to the ACLU, the 2nd amendment would still be a dead letter”

    I don’t think any one organization is going to solve all our problems, so it’s fine to support other organizations. I don’t think the comparison to the KKK is fair (gun rights is a type of “civil right”) but the rights the ACLU protects repeatedly also protects 2A rights.

    For instance, the right to privacy would protect the home, including unreasonable searches or seizures to obtain a gun. Anyway, “dead letter” here means “dead as in not protecting what I think the 2A means.”

    Meanwhile, pre-Heller, gun rights were repeatedly protected, most states having constitutional protections, the federal Congress making statements supporting individual gun ownership and multiple presidents or candidates as well. Cf. Congress singling out gays.

  17. Shag from Brookline says:

    I take, cautiously, Joe’s point to my comparison:

    “I don’t think the comparison to the KKK is fair (gun rights is a type of ‘civil right’) ….”

    as I cogitate Judge Posner’s recent opinion on bearing arms in public as greater self defense than in the home. VC has had some commentary on the subject. But how much self defense? NRA seems to want no limits. And a guest poster at VC has raised the issue of arms other than guns. Consider reports that gun sales soared during the recent election campaigns. Why? Does it have to do with anything Obama has actually done on the Second Amendment? The NRA is a marketing tool for gun manufacturers. Perhaps gun rights is an uncivil right. Judge Posner may have been a tad lazy or perhaps he wanted to bring to a head the right of self defense and its potential impact on the health and safety of those innocents who may be injured by such rights. Self defense in public can include sports arenas, drinking establishments, transit systems, public meetings (including of governmental agencies). There are Second Amendment yahoos out there who insist upon absolute Second Amendment rights. Query: I wonder if Justice Scalia is concerned with the slippery slope of Heller.

  18. Shag from Brookline says:

    I finally downloaded Judge Posner’s opinion and plan a careful read later today. Judge Posner was not lazy, I was, focusing on sound bite reactions to his opinion. My apologies to Judge Posner (and I’ll reserve any praise until I do read his opinion).