Felix Frankfurter and the Bill of Rights
To return to my research on how the bill of rights became the BILL OF RIGHTS, I said in my last post that the Supreme Court did not use this phrase to refer to the first set of constitutional amendments until 1893, and did so only rarely and briefly until 1940. We start to see a change with Minersville School District v. Gobitis, decided that year, and in two cases decided in 1941–Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies and American Federation of Labor v. Swing. What connects these three opinions, which all cite the “Bill of Rights” and discuss that concept in laudatory terms?
The answer is that they were all written by Felix Frankfurter. This discovery comes as a surprise, since Justice Frankfurter is not known as a robust civil libertarian as a judge (though he was as a lawyer and academic). Only one of these cases actually held that there was a constitutional violation (Swing), but this was still a conceptual breakthrough. (This also casts Gobitis is a somewhat different light–its dicta was powerful even though the holding was not.) The momentum that began with Frankfurter’s opinions reached its crescendo in Barnette, which substantially enlarged the Bill of Rights over his dissent.