The Phillipines and the Bill of Rights
posted by Gerard Magliocca
I thought I’d do two posts on the research that I’m writing up on the Bill of Rights. One part of that article involves Franklin Roosevelt’s use of the Bill of Rights to advance his constitutional agenda, which I’ve already talked about. The next golden nugget that I’ve come across is the way that the national bill of rights was discussed by the Supreme Court. (There are many references to state bills of rights and to the English Bill of Rights of 1688 that are not covered by what I’m saying here.)
1. Prior to 1880, citations to the national “bill of rights” clearly referred to Article I, Section 9 and Article I, Section 10 of the Constitution. This began with Chief Justice Marshall’s opinion in Fletcher v. Peck, continued with Barron v. Baltimore, and wound through other cases. These were considered the important limits on government power and protections of individual rights.
2. The first clear reference to the national Bill of Rights that meant the first ten amendments did not come until 1893. (There was one reference in an 1880 case that is ambiguous.)
3. Between 1893 and 1937, the Court cited this national bill of rights only a handful of times in cases that arose from within the United States. By my count, there were a grand total of ten references in this forty-four year span. And many of these were perfunctory.
4. Most of the cites to the national bill of rights during this period actually came from cases arising out the Philippines. Why? The answer is that, after the islands were acquired from Spain, Congress passed a statute governing the colony that included many (though not all) of the provisions in the first set of amendments. Thus, many cases came up from there that discussed either the “bill of rights” in that very different context.
In fact, the Bill of Rights was a backwater in Supreme Court discourse until 1940. Who changed that? The answer may surprise you. Tune in tomorrow.
February 25, 2013 at 5:15 pm
Posted in: Constitutional Law, Uncategorized
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Responses (8)
Brett Bellmore - February 25, 2013 at 7:15 pm
“The first clear reference to the national Bill of Rights that meant the first ten amendments did not come until 1893.”
Except, you know, for all those references at the time it was being drafted and ratified… I think you maybe need to qualify that statement, to something like, “The first clear reference by the Supreme court.” Maybe they were embarrassed to mention something they had no interest in enforcing?
Gerard Magliocca - February 25, 2013 at 7:16 pm
Well, I did say that this post was about the Supreme Court.
A.J. Sutter - February 25, 2013 at 8:43 pm
Nonetheless, Gerard, Brett makes a good point about distinguishing between Bill of Rights discourse in the US generally, and the Court’s Bill of Rights Discourse. You began this theme a number of weeks ago by talking about FDR, not the Court. So please understand why your faithful readers may be confused about where you’re headed.
Shag from Brookline - February 25, 2013 at 10:23 pm
Gerard’s comment (#2) was accurate. It is clear in the first paragraph of his post that the focus of the post is the Supreme Court regarding the Bill of Rights. Gerard’s post was not dealing with references during the drafting and ratification processes of the the Bill of Rights or “discourse in the US generally”. Rather, Gerard’s clear focus in this post relates to the Supreme Court. Brett has misread the post and apparently so has A.J.
Now here’s the curious part of Brett’s #1:
“Maybe they were embarrassed to mention something they had no interest in enforcing?”
Presumably the “they” is the Supreme Court. But what is Brett’s basis for suggesting lack of interest or embarrassment in the Court in enforcing the Bill of Rights? Up to the Reconstruction Amendments, the Bill of Rights (or at least the first eight Amendments) limited the federal government, not the states. Back in those days, there was no cert procedure as we have it today. Apparently parties appealing to the Court may not have have raised Bill of Rights issues very often. Remember, the Court had to take all appeals. So in those antebellum years did the Court have no interest in enforcing the Bill of Rights and were the Justices embarrassed?
Gerard is taking us on a trip, as noted in his closing paragraph. I’ll be tuning in tomorrow for what may be a surprise answer to who changed the backwater treatment of the Bill of Rights by the Court in 1940.
So, Gerard, as a faithful reader, you were correct in your #2 and I wasn’t confused about where you’re headed. This is your story and I can’t wait to be surprised. I turned 10 years of age in 1940 and am trying to recall events of that year. I took my ConLaw course in the Fall of 1952, before the Warren Court. Most of the course was spent on the Commerce Clause. A couple of years later, beginning with Brown v. Board of Education, the Warren Court addressed the Bill of Rights as impacted by the Reconstruction Amendments. So I’m curious as to the Court’s involvement with the Bill of Rights during the period 1940 up to the Warren Court.
mls - February 26, 2013 at 12:10 am
The fact that Congress passed a statute making some of the bill of rights applicable to the Philippines doesn’t really explain why the Supreme Court only discussed the bill of rights in cases related to the Philippines, does it?
Shag from Brookline - February 26, 2013 at 6:49 am
is anyone prepared to challenge Gerard’s:
“In fact, the Bill of Rights was a backwater in Supreme Court discourse until 1940.”
with facts? I’m interested in listening to Gerard’s case and challenges to it. Perhaps it might even lead to an examination of whether the Bill of Rights was a backwater in discourse of the Executive and Legislative branches until long, long after the adoption of the Bill of Rights.
Anna Su - February 26, 2013 at 8:24 am
Gerard, I think you’re right that many of these amendments were tested first in American colonial Philippines. (That’s stuff for another post,probably. It would be interesting to see how the American judges there importing precedents) Also, the statute you’re referring to reproduced an earlier executive act by McKinley, “McKinley’s Instructions” which enumerated the Bill of Rights (except arms and jury) as applying to the islands.
Though I think the statement regarding the Bill of Rights as backwater in court discourse until 1940 might be a bit of an overreach? For example, a lot of the seminal speech cases were decided between 1917 to 1925.
Gerard - February 26, 2013 at 8:32 am
Just to be clear, I’m not talking about the individual parts of the first ten amendments. I’m talking about the notion that the “bill of rights” was something special. That’s what was uncommon in the Supreme Court.
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