The Long Process of Labeling the Bill of Rights

As I noted back here, James Madison used the label “bill of rights” for the first of his proposed amendments to the U.S. Constitution—a proposal that never got out of Congress.

He also proposed a bunch of limitations on the federal government that became the first ten Amendments to the Constitution, but he doesn’t seem to have considered those Amendments to comprise the United States’s own Bill of Rights.

Instead, Madison and his contemporaries continued to use the phrase “bill of rights” to refer to a general statement of the government’s powers and limitations. The one possible exception I’ve found in Founders Online is in a 1792 letter from Thomas Jefferson to George Washington. In one of those internecine squabbles that’s so much more entertaining on the Broadway stage than in your cabinet, Jefferson wrote to the President:

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. [Alexander] 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.

Jefferson clearly saw the First Amendment as part of his desired “bill of rights.” Whether he thought of all ten Amendments under that label is unclear.

American legal authorities don’t seem to have publicly applied the label “Bill of Rights” to the Amendments for decades. In Barron v. the Mayor and City Council of Baltimore (1833), Chief Justice John Marshall delivered an opinion that Article 1, Section 9 of the Constitution “enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the power of the general [i.e., federal] government…”

You remember the fundamentals laid out in Article 1, Section 9, right? Some are indeed important for individual rights, such as habeas corpus. But that section also protected the transatlantic slave trade until 1808 and tackled the burning issue of noble titles. It was a general list of limitations on Congress.

Incidentally, Marshall’s decision confirmed that those clauses and most other parts of the Constitution applied only to the federal government, not the states. So this decision seems, to modern eyes, to codify a sadly limited conception of a U.S. Bill of Rights.

That same year, however, Marblehead’s own Joseph Story (1779-1845, shown above), who was both an Associate Justice of the U.S. Supreme Court and professor of law at Harvard, started the process of applying the label of the Bill of Rights the way we do today. In his highly influential Commentaries on the Constitution of the United States (1833), Story began a discussion of the Amendments this way:

Let us now enter upon the consideration of the amendments, which, (it will be found,) principally regard subjects properly belonging to a bill of rights.

The next year, Story revised that book for use in classrooms as The Constitutional Class Book, and this time he wrote:

When the Constitution was before the People for adoption several of the State Conventions suggested amendments for the consideration of Congress, some of the most important of which were afterwards acted upon by that body at its first organization; and having been since ratified, are now incorporated into the Constitution. They are mainly clauses, in the nature of a Bill of Rights, which more effectually guard certain rights already provided for in the Constitution, or prohibit certain exercises of authority supposed to be dangerous to the public interests.

Finally, in 1840 Story revised his textbook again as A Familiar Exposition of the Constitution of the United States, including a rewrite of the above paragraph and following it with:

Before, however, proceeding to the consideration of them, it may be proper to say a few words, as to the origin and objects of the first ten amendments, which may be considered as a Bill of Rights, and were proposed by the first Congress, and were immediately adopted by the people of the United States.

Thus, over the course of seven years Justice Story went from saying that the first ten Amendments covered what a bill of rights should to saying that we might as well think of them as a Bill of Rights (with capital letters).

According to legal historian Akil Reed Amar, Story’s label remained unofficial and qualified until well past the U.S. Civil War. Rep. John Bingham of Ohio tried to write the Fourteenth Amendment so that it applied the federal “Bill of Rights” to the states. The Supreme Court resisted both the doctrine and the phrasing for decades. Finally, a 1900 dissent by Justice John Marshall Harlan retroactively declared that “These [first ten] amendments have ever since [ratification] been regarded as the National Bill of Rights.”