Abstract: It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing. (1) INTRODUCTION The of is sacred part of our Constitution, but why do we use that term to describe the first set of amendments? (2) A legal claim is not stronger if the guarantee falls within the of as opposed to, say, the Equal Protection Clause or part of Article I. Moreover, the Supreme Court has repeatedly declined to hold that right in the of is ipso facto fundamental right, (3) and hardly anyone now thinks that Amendment III or Amendment VII carries the same weight as Amendment I. (4) What, then, is the point of saying that all of these provisions are part of bill of rights when the text ratified in 1791 does not use that phrase? (5) This Article argues that the use of the Bill of Rights to describe the first set of constitutional amendments emerged long after the Founding as justification for expanding federal power at home and abroad. In making that claim, I challenge two common misconceptions about the of Rights. One is that the first set of amendments was known by that name from the start. (6) This is not true. James Madison never said that what was ratified in 1791 was bill of rights, (7) and that label was not widely used for those provisions until after 1900. (8) The second fallacy is that the of was term of art designed to limit government through judicial review. (9) While this is the modern understanding of the of Rights, that idea did not become part of constitutional grammar until World War II. (10) During the ratification debates on the Constitution, some Anti-Federalists protested that adding bill of rights to the proposal was tantamount to throwing a tub to the whale, by which they meant that such text would be just decoy that would legitimate federal power. (11) In practice, this was what calling the 1791 amendments the of mostly did when that label was used prior to 1945. The first move in this direction came during Reconstruction, when few members of Congress, especially John A. Bingham, used that term of art because they wanted to overturn Barron v. Baltimore (12) and extend the first set of amendments to the states. (13) By calling that list the of Rights, Bingham was trying to persuade his colleagues that this expansion of national power was valid exception to states' rights. (14) While Bingham did not change either the name or the scope of those amendments during his era, both aspects began to assume their modern form after the Spanish-American War. Critics of imperialism such as William Jennings Bryan argued that our democracy could not endure if we withheld the Bill of Rights from the Philippines. (15) President William McKinley and Congress answered this challenge by extending part of the first set of amendments in what was later called the Philippine of Rights. (16) This watered-down version of the original was vital in easing concerns about unprecedented federal control over territories that would never be admitted as states. The New Deal and World War II elevated the of to its present iconic status in an effort to increase national power still further. Liberals are fond of Franklin D. Roosevelt's Second of Rights that sought to grant positive rights such as health care and education, (17) but FDR also brandished the first of to deflect charges that the growth of the welfare state threatened individual liberty. The attack was false, the President explained in one of his early Fireside Chats, because the gold standard of liberty was the of Rights, and those freedoms were not being infringed. …
Publication Year: 2016
Publication Date: 2016-11-01
Language: en
Type: article
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Cited By Count: 1
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