The Bill of Rights in the Supreme Court
posted by Gerard Magliocca
While I said a little while ago that my next article would be about the Obama Administration, my research over the past few weeks convinces me that first I should write something on “The Canonization of the Bill of Rights.” My thesis is that the Bill of Rights became an important concept in the 1930s and 1940s in response to domestic and international pressure and under the guidance of Franklin D. Roosevelt. I’ve talked about FDR’s use of the Bill in several posts, but now I want to give some background on how the Supreme Court addressed the issue.
Scholars have noted with some surprise that the Supreme Court never referred to the first eight (or ten) amendments as the Bill of Rights until the late nineteenth century. Prior to that time, all cites to the Bill of Rights were either about state constitutions or the English Bill of Rights. The first cite came in Ex Parte Siebold, a habeas case, where the Court explained that the Federal Government’s powers were limited by a “sufficiently rigid bill of rights for the protection of its citizens from oppression.” This was probably referring to the first set of amendments, though lawyers also referred to Article I, Section 9 as a “bill of rights” because it limited what Congress could do.
The first clear use of the Bill of Rights in the modern sense came in 1893, when the Court said that “the first 10 amendments to the constitution, adopted as they were soon after the adoption of the constitution, are in the nature of a bill of rights.” Four years later, the Court mentioned “the first 10 amendments to the constitution, commonly known as the ‘Bill of Rights,’” and after that you do find an occasional reference to the Bill in the cases. What is missing, though, is any sense that the Bill of Rights was important or special. That did not happen until West Virginia v. Barnette (or so I want to claim). It’s also interesting to note that (I think) the vellum which is now on display at the National Archives with the Bill of Rights was not publicly venerated until the 1940s, which dovetails nicely with its legal status.
Blogging will be light for the next few weeks, as I have some projects that need attention.