Balkinization  

Monday, June 12, 2017

The Unspoken Message of our Bill of Rights

Gerard N. Magliocca

President Trump has still not mentioned the Bill of Rights as President. No President has gone so long into his first term without doing so since Dwight Eisenhower. (It took Ike more than a year to mention the Bill of Rights for the first time.) Why do I bring this up?  It's clearly a symbolic point that, I think, says something about his mindset about civil liberties.

In my upcoming book on the Bill of Rights, I talk at length about how the symbolic meaning of that idea has changed over the centuries. In this post, I want to discuss one part of that story. What is the lesson that we should take away from the fact that the American Bill of Rights is currently defined as the first ten constitutional amendments ratified in 1791?

I say "currently" because, as the book explains, for most of our history the Bill of Rights was not defined in this way. Indeed, the view that the Bill of Rights is the first ten amendments became did not become settled law until 1971. Justice Hugo Black left the Supreme Court in that year, and he was the last significant legal figure to insist that the Bill of Rights was NOT the first ten amendments.  (Sometimes he said it was the first eight amendments, and sometimes he said that other constitutional provisions beyond those should be included.)

One thought is that we call the first ten amendments the Bill of Rights because they are the most important constitutional provisions (or rights). But this cannot be right. What about the Fourteenth Amendment? Or the ones that expanded the right to vote? Are they really less important than, say, the Third Amendment or the Seventh?  Hardly. Or how about as compared to landmark statutes such as the 1964 Civil Rights Act, the Social Security Act, and so on.

A better explanation is that the first ten amendments are considered distinctive because they sort of come from the Framers (or, at least, from the generation of the Framers). Consider, though, what this implies. It implies that the greatest legal achievements that deserve a special title all occurred in the eighteenth century. Is that true? I would say definitely no. In effect, even those who reject originalism say "yes" (though unwittingly) by accepting the current definition of the Bill of Rights.

Would the law be different if the Bill of Rights was redefined? Not formally. Constitutional rights and statutes have the same formal authority whether they are in the Bill of Rights or not. But the informal authority of a legal clause is almost certainly enhanced by that special recognition. (Otherwise, why bother having such a title at all?) Would a case such as Shelby County have come out the same way, for example, if the Voting Rights Act was seen as part of the Bill of Rights? Maybe. But maybe not.     

Comments:

There was a push to include a "bill of rights" in the Constitution and opposition to it flagged that. Then, the first ten amendments were made, and that concern was addressed. The rights listed (which is what a "bill" is -- it's a type of list) were common examples provided when "bills of right" were discussed.

The actual term "Bill of Rights" apparently wasn't common early on for whatever reason, but eventually the debate seemed to be what to do with the ninth and tenth amendments. Given "state rights" was such a big issue, there might have been some problem there including the tenth amendment while some would be quite concerned about including it on par with the rest. The 9A was a bit of a joker.

I think ten also probably had some overlap with the Ten Commandments. They aren't the only commandments and there is some debate in fact what ones to include but as a concept it was well recognized. As is, even the Supreme Court blithely mix in the 14th Amendment here, state cases said to be "First Amendment" cases etc. "Bill of Rights" is also a convenient symbol for rights in general.
 

Joe's right. In my view, the phrase "Bill of Rights" gets applied to the first 10 amendments because that's what they called it at the time. Examples include George Mason demanding to include one at the Convention; Jefferson telling Madison that the people were entitled to a Bill of Rights against every government; Hamilton and Wilson denying that a separate Bill was necessary because the Constitution itself already operated as one; etc.
 

The Americans borrowed the term and the idea of a bill of rights from the British Bill of Rights of 1689, which had a much stronger meaning during the founding generation than after our Civil War.

The Civil War amendments attempted to extend the basic liberties guaranteed by our Bill of Rights to the former slaves and against state governments. Thus, these are better viewed as an attempted fulfillment of the Bill of Rights rather than something new.

The Bill of Rights guaranteeing substantive liberties and due process rights before the government can take your life, property or liberty are more important than the right to vote, because, as noted by the Declaration, the core purpose of government is to secure our liberties. In contrast, people can vote in totalitarian political economies which comprehensively abridge our liberties.
 

Piling on, I just don't understand why you're hung up on this idea that the 1st 10 amendments weren't called "the Bill of Rights" until recently. It's demonstrably untrue. Do you just enjoy being contrarian?
 

Brett might consider answering his question to Gerard:

" Do you just enjoy being contrarian?"

himself.


 

From the beginning, there were references to "a bill of rights" etc., which has a certain generic sense to it.

But, the term "the Bill of Rights" is another matter. I'm not aware of usage in a Supreme Court opinion, for instance, until the late 19th Century. Now, it is standard usage. As to what amendments were included, often the issue was incorporation, and it wasn't clear if the 9th and 10th amendments really could be incorporated. So, there would be a logical talk of "eight" amendments being applied to the states.

If Mark Field found an early usage -- post ratification -- of Jefferson etc. saying "the Bill of Rights," he can let us know. GM noted James Buchanan was the first one to use "bill of rights" (the transcript I saw uses lower case) in a presidential speech. [Thomas Jefferson, e.g., in his first inaugural listed various rights, but did not use that term.]
 

"To this we are also indebted for the bill of rights which secures the people against any abuse of power by the Federal Government. Such were the apprehensions justly entertained by the friends of State rights at that period as to have rendered it extremely doubtful whether the Constitution could have long survived without those amendments."

http://www.presidency.ucsb.edu/ws/?pid=29501
 

I'm not sure if the word "the" is key to your request. Lots of people used the phrase "*a* bill of rights". Here, for example, is the Jefferson quote I mentioned above: “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."

This was pre-ratification of the Constitution, much less ratification of the BoR. But in addition to the usages I mentioned above, there are others; heck, Madison also used the phrase "a bill of rights" when he introduced the first 10 (12, actually) amendments. I don't have a quick example of any reference to "the Bill of Rights" afterward, but the historical context makes it seem like a natural usage.
 

It is not the usage of the specific indefinite article as usage of the term as a proper noun. Sort of "band-aid" vs. Band-aid (TM).

As you say, "bill of rights" was common usage but curiously -- though it does seem like a natural usage -- even that as a generic collective noun as applied to the Bill of Rights after ratification in the early years is hard to come by.

Now, "Bill of Rights" is common usage.
 

Yeah, it did take a while to go from "a bill of rights" to "the Bill of Rights"; I just question the significance of that step.
 

Part of the explanation may lie in the fact that the BoR didn't come up very often. It didn't apply to the states, so there was no occasion to reference it with respect to state laws. In the most obvious case I can think of offhand -- the Alien and Sedition Acts -- both Jefferson (KY Resolutions) and Madison (VA Resolutions) referred only to "amendments to the Constitution" and/or "Rights protected by that amendment". The same is true of the Report of 1800.
 

I recall a thread, most likely at this Blog, that addressed the languf an amendment as to whether any specific part of the Constitution was being amended thereby. Amendments are listed after the end of the original Constitution in numerical order. I haven't looked at the Amendments recently for purposes of this comment, But as I recall. the it seem rare that an Amendment refers specifically to a provision in the original Constitution that is being amended. An Amendment may occasionally tie-into another Amendment, such as in the case of Prohibition's termination. Many of the Amendments relate to rights, but not all. The thread, as I recall, compared the method used at times to amend a statute, a contract, a will, where the language specifically references a portion of the document being amended. But an Amendment to the Constitution may have an impact on a specific provision in the original Constitution without a similar specification. I also recall a law review article that might have addressed this but such was not revealed by a Google search. Some of us look upon the Amendments as progression in making a more perfect union. While the bill of rights provided a foundation, it needed strengthening. Some here might object to some of the more recent Amendments as depriving America of the benefits of the late 19th century The Gilded Age (or prior to the Civil War).

My point is that we can honor the bill of rights however referred to, but subsequently and into the 20th century more rights were recognized as being needed to indeed make our Union more perfect. What's in a name? Our Union is not yet perfect but the Constitution has improved over the years. I still have reservations about a second constitutional convention.

By the Bybee [expletives deleted], I concur with Brett's 4:06 PM comment.
 

Shag:

Maybe the reason amendments are listed separately and following the original Constitution is because the first ten amendments were meant to be a separate bill of rights?
 

Can SPAM's "maybe" relate to the 20+ Amendments that followed the bill or rights? Some think the bill of rights was "divene" in nature similar to the 10 Commandments, despite the 1's A's religion clauses. Earlier state constitutions used a similar method as the Consstitution's adding As at the end. The MA constitution was awkward to read because there were so many amendments that actually amended language in that constitution, including earlier amendments.

But, as Mark Field points out, the bill of rights got little attention pre-civil War. To Madison, it was ho-hum.
 

It's curious that when the Supreme Court rejected incorporation of the Bill of Rights in Barron v. Baltimore, the one time "bill of rights" comes up is in reference to rights found in the main document.

"The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures."

I do think it was in part a matter of not much occasion. In time, there were multiple issues arising in particular as to fugitive slaves and there seemed to be certain instances where the national bill of rights was seen collectively. Then, the 14A in particular brought the question up as well.
 

Perhaps Gerard should slightly amend his thesis: Maybe it wasn't the population at large that hesitated to recognize it as the Bull of Rights, but just that tiny fraction of society comprising the judiciary or legal practitioners.

Lawyers tend to think of the law as their own exclusive preserve, and ignore what everyone else thinks of it. A dangerous attitude when every scrap of power they exercise depends on the acquiescence of that everyone else...
 

I doubt that lawyers were to blame. After all, Madison wasn't a lawyer and he didn't use the phrase when (a) he could have; and (b) he was writing for public consumption. It also doesn't explain why lawyers (Wilson, Hamilton, Jefferson) were perfectly willing to use the phrase before ratification but don't seem to have done so afterward.

Still, it would be interesting to track uses of the phrase in newspapers, pamphlets, etc. That's a lot of work, though.
 

Gerard:

The federalists and anti-federalists expressly and widely debated whether the Constitution should include a "bill of rights" and the first ten amendments were the product of this debate.

http://teachingamericanhistory.org/bor/fed-antifed-debate/

Are you arguing this did not occur?

 

To save anyone else the trouble, I have collections of the papers of Jefferson and Madison. They're not complete (that would be about 70 volumes each), but do include most of the interesting public papers and private letters. I found no reference to the Bill of Rights, by that name, by either of them after Madison's introduction of the amendments in 1789.
 

As to Jefferson, a 1792 letter:

"You will there see that my objection to the constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies, trial by jury, & a constant Habeas corpus act. Colo Hamilton’s was that it wanted a king and house of lords. The sense of America has approved my objection & added the bill of rights, not the king and lords."

2. Jefferson, “The Conflict with Hamilton: To the President of the United States" (9/9/1792)

https://balkin.blogspot.com/2014/12/the-bill-of-rights-reconsidered.html
 

"The Bill of Rights guaranteeing substantive liberties and due process rights before the government can take your life, property or liberty are more important than the right to vote, because, as noted by the Declaration, the core purpose of government is to secure our liberties."

The Bill of Rights was added as amendments, as, to many, an unnecessary afterthought to the Constitution itself, which was in large part devoted to matters relating to representative government. The Declaration itself, in the very sentence Bart references, affirms the importance of majority consent ("That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."). Bart offers the example of totalitarian governments that allowed 'voting' (an equivocation, because it wasn't any meaningful exercise of the franchise allowed) but which abridged liberties, as an example that the latter is more important. I offer the more salient example of our own Southern states, which had all the proclamations of liberty a Tea Party-ier would want, but denied the black minority the right to vote, and was the greatest infringement on liberty our history has ever known, to show that voting is critical. Black civil rights activists, many of whom faced beating and death, knew thi.
 

"Thus, these are better viewed as an attempted fulfillment of the Bill of Rights rather than something new."

The Bill of Rights did not mention equality at all. The Reconstruction Amendments do. Ditto for slavery. I'd say that's something new! Isn't it AMAZING that a self proclaimed LIBERTARIAN wouldn't think that? And you admit the 15th Amendment is something new in your contrasting of the importance of the right to what the BoR promised.
 

Is this thread searching for needles in a haystack? The late Paula Maier's "Ratification: The People Debate the Constitution, 1787-1788" was published in 2010 to great acclaim. I have not read it, but read a number of reviews and as I recall there were several threads of discussion on the book at this Blog in which I participated, along with some of the usual suspects. I'm not aware of an effort similar to that of Ms. Maier on the ratification of the bill of rights. It's been pointed out several times in this thread that in the scope of historical events the bill of rights did not serve that major of a role until after the 14th A with its incorporation of certain provisions of the bill of rights, which, by the way, was long in coming after ratification of the 14th A.

Mark notes:

"Still, it would be interesting to track uses of the phrase in newspapers, pamphlets, etc. That's a lot of work, though."

Considering how the bill of rights, both pre- and post Civil War, did not apply to all in an equal way, might suggest that such a search might magnify the failure of the bill of rights to serve all Americans equally to this day. But such a search might result in constitutional trivia games for law students - and others - on the bill of rights.

Here's the best I could find on short Googling on the ratification of the bill of rights:

http://teachingamericanhistory.org/bor/ratification_of_amendments/

Query: How well have subsequent As to the Constitution built upon the bill of rights? Is our Union more perfect?
 

Mr. W:

There is no false choice between electing our government and liberty. We can and should have both. I merely observed that, of the two, liberty is the most important. What good is voting if you cannot live your life as you please? A tyranny of the majority is still tyranny.

As to equality and the Bill of Rights, equal protection of the law is among the common law principles of due process guaranteed by the Fifth Amendment. This is why the Court in Dred Scott had to reduce slaves from men to property with no rights. That being said, the Fourteenth Amendment did improve the constitutional state of affairs by expressly guaranteeing equal protection.
 

Is SPAM suggesting that the Dred Scott decision faithfully conformed to the text of the Constitution of that time? And in actual practice,did the 14th A " ... improve the constitutional state of affairs by expressly guaranteeing equal protection." what with Jim Crow laws enforced at the state and federal levels? Is SPAM once again demonstrating that he is a "feint-hearted" [sick!] libertarian?

 

Shag: Is SPAM suggesting that the Dred Scott decision faithfully conformed to the text of the Constitution of that time?

Quite the opposite.

The Court did not apply the Constitution as written. The Constitution did not exclude any category of human beings from the Bill of Rights or define any category of human beings as property. Rather, Taney engaged in the worst form of original intent cherry picking, much like the dissent in the Heller case, to deny liberty.

did the 14th A " ... improve the constitutional state of affairs by expressly guaranteeing equal protection." what with Jim Crow laws enforced at the state and federal levels?

You cannot blame a provision of the Constitution for the government's refusal to abide by it. The blame rests with the outlaw government.

 

Perhaps SPAM can inform us with respect to his:

"The blame rests with the outlaw government."

regarding when, if ever, the "outlaw government" became lawful concerning Jim Crow laws. Surely it wasn't during the late 19th century's The Gilded Age.

It is reassuring, however, that our resident textualist asserts that the decision in Dred Scott was wrong. I appreciate SPAM's clarification.



 

Shag:

Unintentionally apt analogy.

It is no coincidence that the Democrat Jim Crow South with all of its abridgments of economic and social liberty barely participated in the free market industrial revolution.
 

SPAM evades responsiveness as is his inapt habit. with his reference to "the Democrat Jim Crow South" which converted to becoming a significant base of the Republican Party, then no longer the party of Lincoln, following Brown v. Bd. of Educ (1954, Unanimous), the civil rights movement, the 1960s Civil Rights Acts and Nixon's 1968 Southern Strategy that continues to this day. That's the Republican Party that SPAM stands with.
 

Shag: "the Democrat Jim Crow South" which converted to becoming a significant base of the Republican Party

At which time, the South eliminated government racism and became a booming free market center of the United States.

Funny how that works.
 

It's funny how SPAM abandoned that South he describes for quality of life purposes in relocating to the Mile High State (of Mind) giving up a lig law firm future in FL. SPAM ignores how that booming South followed up with the Court's Shelby (5-4) decision in steps to limit voting by African-Americans and others of color. Note the absence in SPAM's comment of my claim that Spam's Republican Party is no longer the party of Lincoln. Bunny, I imagine SPAM whistling Dixie as he keyboards komments kritically.
 

Shag:

:::heh::: Too damned hot and humid down there for me.

No GOP government in the South is limiting the African American vote. Jim Crow went away with the Democrats.

Shelby dealt with the unconstitutional limitation of federal direction of elections to a minority of states. Speaking of equal enforcement of the law...
 

I'm trying to un-imagine SPAM's contortionist colon-chuckling ability.

Note he now refers to: "No GOP government in the South is limiting the African American vote. Jim Crow went away with the Democrats." Those once Democrats are now Republicans in control of the former slave states. Jim Crow survives in SPAM's Dixie.

SPAM sees no causation from the Court's decision in Shelby (5-4) and the res gestae adoption by former slave states of voting restrictions laws primarily impacting African-Americans and other people of color.

It should be pointed out that during SPAM's entire adult life the Republican Party he stands for has not been the party of Lincoln.

 

Shag:

Race-neutral voter ID laws across the nation and the Supreme Court case approving them long predated Shelby. The only "people of color" (we all have color BTW) voter ID laws are hopeful impacting are non-citizens ineligible to vote.
 

Actually the former slave states and certain other red states are hopeful of reducing voting by citizens who happen to be African-American and other people of color with their ID voting laws.

SPAM's parenthetical - "(we all have color BTW)" - is not the same as the one drop rule that Jim Crow ruled. Perhaps SPAM has a personal disclosure to make?
 

I just finished reading Stephen Griffin's "Trump, Trust and the Future of Constitutional Order" that runs 15 pages Griffin posted on this article a week or so ago at this Blog. It may be worth a read in preparation for posts by Sandy and/or Jack on Constitutional Crises. It's available at:

http://ssrn.com/abstract=2981350
 

A book on the Supreme Court during the Reconstruction was cited on "Better Call Saul" last night but it was apparently fictional. Too bad. Sounded interesting.
 

It's phrases like "Democrat Jim Crow South" that make it hard to take would-be originalists seriously. If your fuzzy lens causes you to misread America in 1968, how can you argue from a position of presumed clarity regarding 1789?
 

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PMS:

From its creation, the Democrats were the party of slavery, then of Jim Crow, and then government racial preferences perversely marketed as "affirmative action." You do not have to be an originalist to recognize this ongoing fact.
 

SPAM continues to overlook the fact that the Republican Party during his adult lifetime has NOT been the party of Lincoln and that the former Democrats in the former slave states converted to the Republican Party, becoming a significant part of its base following Brown v. Bd. of Educ. (1954, Unanimous), the civil rights movement, the 1960s Civil Rights Acts, and Nixon's Southern Strategy in the 1968 campaign that continued to play a role in Republican campaigns through the 2016 campaign. Political parties have changed over the years since the ratification of the Constitution during America's history of 200+ years.

By the Bybee expletives deleted], yesterday was the anniversary of LBJ's nomination of Thurgood Marshall (1967) as a Justice of the Court
 

This comment has been removed by the author.
 

It is among other things ironic when those who rely on originalist thinking often get history wrong while those who are less apt to do so do a better job of it.

Shag has a leg up, since he was born in the 19th Century.
 

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