Americans are fond of referring to the Bill of Rights, the first ten amendments to the Constitution, as a cornerstone of American freedom.
But what if they weren’t a bill of rights? What if those who sought to convert them into a bill of rights did so not to advance individual rights, but federal authority? What if the way they are interpreted today by the judicial branch is the exact opposite of their original purpose?
In a paper titled “How Did the Bill of Rights Become the Bill of Rights?” Gerard N. Magliocca offers compelling evidence that the first ten amendments to the Constitution should not be considered a true bill of rights and that their perception as such is “legal fiction.”
“The Bill of Rights is a sacred part of the Constitution,” he writes, “but the meaning of that term is elusive.”
To begin with, he offers two examples of their inconsistent or uncertain nature. One, numerous Supreme Court decisions ruled it was only the first eight, and James Madison, who helped draft the first ten amendments to the Constitution, never referred to the actual amendments ratified as “bill of rights.”
In fact, the term Bill of Rights was not commonly used as a description for the first set of amendments until the twentieth century, according to Magliocca. While it may seem innocuous to refer to them as Bill of Rights, he argues that in reality those who promoted this idea did so not to protect the rights of individuals, as intended by the anti-federalists who insisted on the amendments originally, but to increase federal authority and judicial review in areas not delegated to them by the states through the Constitution.
Following the ratification of the U.S. Constitution in 1789, ten amendments to the document were later ratified in 1791 on the insistence of anti-federalists, who at the time were apprehensive of the new authority granted to the federal government and sought to include specific language guaranteeing certain liberties. They also criticized the lack of a bill of rights, which state constitutions had.
The problem is, Magliocca writes, the amendments did not resemble in any way the bill of rights found in state constitutions.
“At the time,” he writes, almost all came near the start of their constitutions and contained aphorisms about natural rights and popular sovereignty comparable to what was in the Declaration of Independence. What Congress wrote, by contrast, was put at the end of the Constitution and was largely free of rhetoric. Thus, in a formal sense the first set of amendments did not look like what people expected from a bill of rights.”
But the most damning evidence is what the ratifiers themselves called the amendments – or, better yet, what they didn’t call them.
“Almost everyone referred to the ‘amendments to the Constitution,’” Magliocca writes. “Nobody in the First Congress described what was sent to the states as a bill of rights.”
Nor did President Washington refer to it as a bill of rights, and though Magliocca concedes Jefferson did write one letter referring to a bill of rights, he concludes that “this was not common or widespread usage.”
Madison too referred to a bill of rights, but it was not regarding the amendments actually ratified. On June 8, 1789, he introduced a package of proposed constitutional amendments to the House of Representatives and said “first of these amendments relates to what may be called a bill of rights.” These amendments he spoke of were eventually struck out of the draft and “in so doing, the First Congress kept the Constitution free of a bill of rights as that term was known in 1791.”
“In other words,” Magliocca writes, “only the part just quoted was in his opinion a bill of rights.”
Interestingly enough, federalist Alexander Hamilton opposed adding a bill of rights to the Constitution, according to Magliocca, “because enumerating liberties implied that the new government had powers that were not enumerated.
Hamilton’s view on the matter was articulated in Federalist #84, in which he wrote the that the Preamble to the Constitution would suffice for a bill of rights (emphasis added).
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Although the purpose of the first ten amendments was to defend liberty, Magliocca writes, their meaning and purpose would eventually manifest into the very thing they feared.
“At that time (of ratification), a bill of rights was a stalking horse for states’-rights,” Magliocca states, “but in other periods the term would be used to support nationalism, colonialism, the welfare state, judicial review, and the constitutional right to privacy.”
Further proof that the first ten amendments did not constitute a bill of rights is the lack of use of the term for over a century. In the 1833 Supreme Court case Barron v. Baltimore, in which the Court ruled the first ten amendments could not be applied to state governments, Chief Justice Marshall’s opinion never referred to them as a “bill of rights.”
“The leading antebellum case on what we call the Bill of Rights called a different part of the Constitution something like a bill of rights,” Magliocca states. “The surprising fact, though, is that portions of Article One, not the first eight or ten amendments, were deemed the closest thing to a bill of rights in the Constitution.
The first Supreme Court reference to the Bill of Rights was in 1840 by an attorney in Holmes v. Jennison, who mentioned “the amendments to the Constitution of the United States, commonly called the bill of rights.”
“Upon closer inspection, though, an ulterior motive emerges,” Magliocca writes. “Counsel was trying (unsuccessfully) to persuade the Court that Barron’s dicta was too broad and that the Due Process Clause of the Fifth Amendment should apply to the states.”
“What is fascinating about this rhetorical move is that it turns the Anti-Federalists’ position on its head,” he continues. “They used a bill of rights to defend states’-rights, but from now on the phrase would frequently be used as a device to strengthen the federal government.”
The most important person to call the first set of amendments the Bill of Rights for the purpose of advancing federal authority was Ohio Congressman John Bingham, according to Magliocca. A Republican during the time of Reconstruction, not only did he draft Section One of the Fourteenth Amendment, but he claimed the amendment was necessary “to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution.”
Magliocca accuses Bingham of creating the myth that they were known as the bill of rights from the start, claiming that Thomas Jefferson referred to them as such. Although Jefferson did mention the bill of rights in a letter to Washington, Magliocca states, “he did not single out the first eight amendments and included items in the ‘bill of rights’ that were not in any of the amendments.”
“Unlike the Anti-Federalists, who used the bill of rights trope to defend states-rights, Bingham and his allies embraced the label to increase federal power,” he writes.
This twisted take on the first ten amendments, known as incorporation, would be later rejected in nineteenth century SCOTUS cases, with Chief Justice Waite writing in such case that the “first articles of amendment were not intended to limit the powers of the state governments.” Justice Samuel Miller also stated in an 1880 lecture that there was no “formal bill or declaration of rights” in the Constitution.”
By 1908, the Court referred to “the rights which are enumerated in the first eight articles of amendment to the Federal Constitution, sometimes called the Bill of Rights.”
“Sometimes?” Magliocca wryly notes. “This is a far cry from the text that is venerated at the National Archives.”
The belief that the first ten amendments constituted a bill of rights emerged following the acquisition of the Philippines after the Spanish-American War. The SCOTUS decision in Kepner v. United States used the Bill of Rights as justification for U.S. colonialism in the country. A few years later, the bill of rights myth would come from Republicans backing President William Howard Taft in his 1912 campaign against Teddy Roosevelt for the party nomination to “discredit TR’s plan for recalling state judicial decisions.”
The idea of the Bill of Rights became permanently entrenched during Franklin Roosevelt’s presidency, in which he repeatedly used it in statements to promote his New Deal legislation. In one of these speeches, he argued “that support for the New Deal was the only way to save the Bill of Rights from fascism or communism.”
When America celebrated the 150th anniversary of the Constitution’s ratification on December 15, 1941, just days after the Japanese attacked Pearl Harbor, the country celebrated the first “Bill of Rights Day,” which included FDR giving a radio address that turned that it “into the centerpiece of the fight against fascism.”
In the years that have followed, Magliocca reflects, the concept of the Bill of Rights has been used by the federal government, particularly the Supreme Court, as a pretext to usurp powers never delegated to them by the Constitution. Ironically, the very thing the anti-federalists hoped to prevent by adding the amendments in the first place.
“And instead of limiting federal power as originally intended, the main contribution of the text in its collective capacity was to increase federal authority at home and overseas,” he concludes. “Constitutional myth-making at its finest.”
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