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.
February 1, 2013 at 11:34 am
Posted in: Constitutional Law, Uncategorized
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Responses (6)
Dan Cole - February 1, 2013 at 11:39 am
Gerard:
Not exactly on point, but yesterday I was teaching an English property case involving the quartering of soldiers in a private house during WW II, and I mentioned the constitutional issue that would raise, if done in the US. Immediately, two student in class turned to each other and high-fived. When I asked them what it was about, they said that they had been waiting all year for any professor to make any kind of reference to their “favorite” amendment, which they consider much and unfairly maligned, compared to the more popular 1st, 2d, and 5th. Needless to say, the rest of the class found it very amusing. My only comment was that it clearly ranked third on Madison’s list.
Best.
Dan
Anthony - February 1, 2013 at 12:11 pm
You might find this presentation by Laura Weinrib relevant. http://www.law.uchicago.edu/audio/weinrib110712
She’s focused primarily on the First Amendment, but it’s an interesting account of how progressives and the ABA came together to endorse the shift to a more rights-based jurisprudence during the late-30s/early-40s.
Joe - February 4, 2013 at 10:59 am
Barron v. Baltimore cites Art. 1, sec. 9 as a bor:
“The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures.”
As to the first comment, was it not fifth on “Madison’s list”?
Dan Cole - February 4, 2013 at 7:36 pm
Joe, I have no idea where it was on Madison’s list; I didn’t even know he had a “list” separate from what became the Bill of Rights. I’m not a Con Law scholar, and do not pretend to be.
BTW, I like the reference to Art. 1, sec. 9 as a Bill of Rights, although it strikes me more as a Bill of Duties. After all, to whom does the “right” against Congress granting titles of nobility belong?
Dan
Joe - February 4, 2013 at 9:18 pm
Dan Cole, I’m going by “My only comment was that it clearly ranked third on Madison’s list.” I thought it was “clear” to you. No problem. My allusion is that the original “list” had two amendments that weren’t ratified with the other BOR, though eventually one became the 27A.
A bar against nobility is a sort of equal protection guarantee, nobility traditionally providing special privileges that burdened those w/o them.
Dan Cole - February 5, 2013 at 2:14 pm
I’ve long thought it would be nice to amend the Constitution to allow the government to sell titles of nobility as a means of raising revenues through a non-regressive, non-tax mechanism. Since the plutocracy already act like lords and dukes, we might as well name them as such, so long as the titles come with no special legal or political rights.
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