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.