June 18, 2018
n the penultimate Federalist paper (number 84), Publius (Alexander Hamilton) responded to Antifederalist complaints that the proposed Constitution did not contain a Bill of Rights. Hamilton explained that bills of rights, like Magna Carta in 1215 and the Petition of Right in 1628, assumed that the King held all powers except those specifically withheld in these bills. Power was assumed; liberty the exception. Our Constitution, argued Hamilton, reversed these positions. Now, liberty was assumed and power specified, as in Article I, section 8’s enumerated powers. A Bill of Rights would muddle this understanding of the nature of the new government. It was not only unnecessary, but “would even be dangerous,” he concluded. “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.”
It took more than a century for Publius’ warning to come to pass. Today most Americans assume Congress can do whatever the Bill of Rights doesn't forbid. The Bill of Rights has become “the heart of the Constitution,” the only part that is regularly taught or is familiar to most citizens, completely eclipsing the body of the Constitution and its structural safeguards of liberty.
In The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights Gerard Magliocca shows that, for our first century, the Bill of Rights was not the heart of the Constitution. Indeed, it was not regularly called “the Bill of Rights” until well into the twentieth century. Anatomically it was more of an appendix of the Constitution―a useless appendage. The Federalists had more or less promised that they would add a Bill of Rights after the Constitution’s ratification. Some Federalists in the first Congress wanted to renege on their implied promise, seeing that they had more pressing things to do—establishing executive departments like an effective Treasury, for example, or creating the federal judiciary. But Representative James Madison (F-VA) pushed for it, probably to avoid a state-based call for a new constitutional convention to propose one.
But Madison made sure that the proposed amendments did not impair the needed powers of the new government, which was exactly what the Antifederalists wanted them to do. Thus, the Tenth Amendment (originally the twelfth of those sent to the states for ratification) did not limit Congress to those powers expressly granted in Article I, section 8. Madison believed that his proposals would do no harm. They simply made explicit what was implicit in the original Constitution. In this sense, they were not really “amendments” at all, since they did not change anything (with a few minor exceptions, such as the Seventh Amendment’s guarantee of a jury trial in civil cases where more than twenty dollars was at stake). The Antifederalists felt cheated. Madison’s amendments were a “milk and water” sop, or “a tub to a whale.”
Thus, there was virtually no constitutional law regarding the Bill of Rights until the twentieth century. When Jefferson and Madison objected to the Sedition Act of 1798, for example, they began their attack with the fact that the Constitution gave Congress no power to punish seditious libel. The First Amendment’s free-speech guarantee was just a back-up. Magliocca points out that “to the extent that politicians or citizens said that America had a national bill of rights, most people gave that honor to the Declaration of Independence.” This made perfect sense, as pre-1787 bills of rights usually preceded frame-of-government constitutions.
The great Chief Justice, John Marshall, saw a bill of rights in Article I, sections 9 and 10. He called the contract clause (no state can pass any law “impairing the obligation of contract”) “a bill of rights for the people of every state.” And he held in 1833 (Barron v. Baltimore) that the first ten amendments applied only to the federal government. President James Buchanan used the phrase “bill of rights” in his last annual message to Congress; no other President did so until 1900. Some members of the 39th Congress that framed the Fourteenth Amendment (John Bingham of Ohio and Jacob Howard of Michigan) did claim that the amendment would apply (“incorporate”) what we call the Bill of Rights to the states, but they were a minority. There was no celebration of the centenary of the Bill of Rights in 1891.
The progressives and especially the New Dealers made the Bill of Rights what it is today. Inverting the Bill of Rights and the body of the Constitution served the purposes of those who wanted government to slip the leash of the original charter. But constitutional conservatives were the first to tout the Bill of Rights. Opponents of the Spanish-American War resorted to the Bill of Rights to protest the denial of its specific provisions to Puerto Ricans and Filipinos. Regular Republicans appealed to them to oppose Theodore Roosevelt’s proposal in 1912 to allow the “recall” of judicial opinions. More significant were the efforts of the Franklin D. Roosevelt administration to depict the Second World War as a defense of the Bill of Rights. Strange though it may sound, defenders of the first peacetime conscription act said that involuntary military servitude was “the best way to pay tribute to the Bill of Rights.”
The crisis came in 1937. The Supreme Court had struck down important pieces of New Deal legislation in 1935 and 1936, and FDR won an overwhelming re-election victory in 1936. He asked Congress to expand the size of the Court from nine to fifteen, giving him six reliable liberals to “pack” the Court. Once again, conservatives used the Bill of Rights to defend the Court against the specter of majoritarian tyranny. Congress rejected the proposal, but the Court got the message. In a footnote (number four) in an obscure 1938 case (United States v. Carolene Products), the Court announced that it was getting out of the business of protecting business or economic rights, but would now focus on non-economic rights, and the rights of minorities. “The existence of facts supporting the legislative judgment is to be presumed for regulatory legislation affecting ordinary commercial transactions,” the Court declared. But there would be a “narrower scope for the operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,” or in cases involving “discrete and insular minorities.” Modern liberals liked that the Bill of Rights concerned mostly non-economic rights, though in the 1980s the Fifth Amendment’s “takings clause” (“nor shall private property be taken for public use, without just compensation”) would help a property-rights revival.
Carolene laid out the agenda of liberal judicial activism to the present day. The crisis of the New Deal birthed today’s Bill of Rights. The Bill’s sesquicentennial (1941) was widely celebrated. Massachusetts, Connecticut, and Georgia, which had not ratified the proposed amendments in the eighteenth century, now did so.
The New Dealers also used the language of the Bill of Rights in their pitch for a national welfare state. In his 1932 campaign, FDR spoke cryptically of “an economic declaration of rights, an economic constitutional order.” In his 1944 message to Congress he gave a more detailed list of entitlements that would compose a “second bill of rights”—the right to a job, to adequate farm prices, to health care, recreation, and education.
The perverse effects of the inversion, where the appendix become the heart, can be seen in the current Janus v AFSCME case, where a union member claims that the First Amendment protects him from having to pay union dues. In 1935 the State (by the National Labor Relations or Wagner Act) gave a labor union the power to compel an employer to bargain with it, and to compel employees to join or pay fees to the union. The Supreme Court upheld this act in 1937 (NLRB v. Jones & Laughlin Steel), the firstfruits of the Court-Packing Plan, as a valid exercise of Congress’ power to regulate interstate commerce. Now Janus is reduced to pleading that this extravagant exercise of congressional power violates his First Amendment free speech rights, insofar as the union uses his dues for “political” activity. Gerard Magliocca's history of the Bill of Rights outlines how such constitutional perversions have come to pass.