Thursday, December 07, 2017
The Bill of Rights as a Continuity Tender
Gerard N. Magliocca
Next Friday is Bill of Rights Day, and in advance of that occasion I want to discuss an important function of our Bill of Rights. As David Strauss explained in an excellent article that marked the bicentennial of ratification in 1991, a bill of rights can serve many purposes. One that Strauss did not address that is part of my book is that the Bill of Rights is a "continuity tender," which my co-blogger Richard Primus defined in a recent article as "not a principle with practical consequences, but a ritual statement with which practitioners identify themselves with a history from which they descend."
As to the "continuity tender," that is a fancy term, but yes, one major concern at the time was that there were basic rights the people felt they long held and they wanted a written expression of them. This then and over time had special symbolic effect which leads to certain concrete effects too.
As the preamble originally included noted:
“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
I have to read the book, apparently, but there was a demand for a "bill of rights," Jefferson wrote to Madison about how a "bill of rights" was appropriate ("half a loaf" or whatever) but I didn't realize the first ten amendments weren't really that (was Jefferson upset a "bill of rights" was never ratified?), there was a demand & don't recall seeing anyone saying "I'm annoyed ... you didn't really pass a "bill of rights," I (with much less research ability) found at least one post-ratification reference by Jefferson using that term, various legal writers discussed a "bill of rights" and the rights listed in the first ten amendments matched it, various historical accounts (including by various top legal and historian scholars) wrote about it and this is the first time I have seen a reference to it not "considered" a "bill of rights" and so forth.
Gerard's closing paragraph, which I'm still attempting to parse, includes this:
"The original understanding of the first ten amendments is that they were not a bill of rights--Madison and the First Congress, for example, did not consider them one."
Perhaps Madison et al did not have a sense of need for "constitutional marketing" of these amendments as was the case for the 1787 Constitution with the Federalist Papers in the push for its ratification by Madison, Hamilton and another. So exactly when, pre-Gerard, did such marketing come about? O, what a "tangled continuity tender" we weave, whether it's originalism or living constitutionalism we believe.
ETA: Again, I have to read the book, but your argument is rather notable & I would be interested to get feedback from various legal and historical minds who wrote about this subject and did not say that -- maybe it's just me, but it seems a rather remarkable thing on some level.
Gerard sure makes a big deal of not everybody referring to the first ten amendments as "the Bill of Rights" at first. I'm not sure I see the huge significance of this, perhaps that's why I'm not an academic.
The designation of the first ten amendments as the Bill of Rights does not perfectly match this definition, as there are some practical my work helper get essay editor com
consequences to the inclusion or exclusion of items from that special list.
Gerald can speak much better on this than I can, but it seems that he sees the significance of a part of the Constitution being considered to be in 'The Bill of Rights' to have to do with how that term has come to have such rhetorical power as a proxy for every good liberty and check in the American way (so to speak) and how that has practical effects in that it seeps into the political and judicial sphere leading to more respect for and deference to those that fall into that category in the 'public understanding' of the day. So, for example, the fact that the Reconstruction Amendments are left out leads to (and is a sign of) the fact that they are held with less awe and respect as integral parts of our American tradition. You see this especially with conservatives, who because of their enthrallment to a kind of white (especially Southern) tribalism are very (I'd say slavishly) worshipful of the era of the Founding and the first Ten Amendments while very conflicted about the era of Emancipation and the Reconstruction Amendments. And the practical effect is you get these narrow readings of the Reconstruction Amendments like Holder, in which an Amendment which was passed specifically because some states rebelled, by a Congress that was overseeing an active federal occupation of those states to put down terroristic opposition to the newfound exercise of basic rights, privileges and immunities by black citizens, is read to restrict and hamstring federal power and to require all *states* be treated with 'equal dignity.'
Gerard: "The original understanding of the first ten amendments is that they were not a bill of rights--Madison and the First Congress, for example, did not consider them one."
Madison did not support the amendments and was not about to join their advocates in equating them with the English Bill of Rights in order to sell them.
" I'm not sure I see the huge significance of this, perhaps that's why I'm not an academic."
Academics come in various sizes as seen by blogs alone and the trend isn't just there as seen again by blogs (particularly comments) alone.
I don't think Madison's alleged failure to use the express term "Bill of Rights" tells us much.* The absence of a Bill of Rights had been perhaps the single most persuasive Anti-Federalist critique of the Constitution. It was the subject of debate in most if not all state conventions. Jefferson had pushed Madison on the need for one.
Given this context, we don't need the use of any particular phrase. Madison wrote amendments which declare rights, not only as in the Virginia Declaration, they even incorporated provisions from the English Bill of Rights. Everyone understood that Madison had introduced a "Bill of Rights"; they didn't need to state the obvious.
I share the concern that use of that phrase for those amendments only is to some extent politically motivated and that other amendments -- not just 13-15, but 17, 19, 24 and 26 too -- declare rights. They deserve equal respect. The Bill of Rights is a process, not an event.
*Footnote is too long so see next comment.
*Madison repeatedly used the phrase "Bill of Rights" in his speech introducing his proposed amendments. I won't quote the entire passage because of space limitations, but this is a sample:
"The first of these amendments relates to what may be called a bill of rights. ... I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore, the arguments drawn from that source were in a great measure inapplicable. ...
But ... a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and ... if once bills of rights are established in all the States as well as the federal constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency. ...
In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. ...
But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority. ...
It has been said, by way of objection to a bill of rights, ... that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. ... [T]his objection lies against such provisions under the State Governments... and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. ...
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. ..."
Then again, on August 15, he referred to the call in state conventions to protect "those great and essential rights". He reminded everyone that in the VA convention he had agreed "to a declaration of those rights which corresponded with my own judgment."
It's a specific reference to state convention criticisms of the absence of a Bill of Rights and an express statement that he was attempting to solve the perceived problem raised in those criticisms.
Mark's comments are welcome. Perhaps the Federalist Papers might be revealing on a bill of rights; as Mark noted, the Anti-Federalists had challenged the ratification of the the 1787 Constitution in part because it did not include a bill or rights. It is my understanding that in effect Madison, to assure ratification, had promised to take a closer look at a bill of rights, and he did via Congress. The late Pauline Maier's "Ratification: The People Debate the Constitution, 1787-1788" should be a good resource on this. Also, here's a link:
to "Ratification and the Bill of Rights."
Here's an interesting article: "THE FEDERALIST PAPERS AND THE BILL OF RIGHTS " by Shlomo Slonin, available at:
SPAM in his 10:50 AM (yesterday) comment said:
"Madison did not support the amendments and was not about to join their advocates in equating them with the English Bill of Rights in order to sell them."
A few minutes of Google by SPAM might have prevented this.
The second part of Mark Field's comment shows that usage of "Bill of Rights" over the years does have some importance but his over comments are well taken as well.Post a Comment
GM, e.g., in the past argued that "bill of rights" had some special character for Madison's generation including placement and the need for general governmental principles. I'd note that ours surely has the second -- the 9th and 10th Amendments specifically.
As to Shag's comment, see also Federalist No. 84, which addresses the absence of a bill of rights argument, including "the proposed Constitution, if adopted, will be the bill of rights of the Union."