The Myth of the Bill of Rights

Were the first 10 amendments to the U.S. Constitution always known as the Bill of Rights ? No. Professor Gerard N. Magliocca in a scholarly law review article explains:

I challenge two common misconceptions about the Bill of Rights. One is that the first set of amendments was known by that name from the start. This is not true. James Madison never said that what was ratified in 1791 was a bill of rights, and that label was not widely used for the text until after 1900. The second fallacy is that the Bill of Rights was a term of art designed to limit government through judicial review. While this is the modern vision of the Bill of Rights, that idea developed only after the phrase was popularized to strengthen federal authority.

During the ratification debates on the Constitution, some Anti-Federalists protested that adding a bill of rights to the proposal was like throwing “a tub to a whale,” by which they meant that such a text was nothing more than a decoy that would legitimate federal power. In practice, this was what calling the 1791 amendments the Bill of Rights did in three pivotal periods prior to 1945.

The first was during Reconstruction, when a few members of Congress, especially John A. Bingham used the term because they wanted to overturn Barron v. Baltimore and extend the first set of amendments to the states. By calling these amendments the Bill of Rights, Bingham was trying to persuade his colleagues that this expansion of national jurisdiction represented a valid exception to states’-rights.

The second came after the Spanish-American War, when critics such as William Jennings Bryan argued that our democracy could not endure as an empire that withheld the safeguards of the “Bill of Rights” to the Philippines and the other new colonies. Congress answered this challenge by extending some of the first set of amendments in what was soon called the “Philippine Bill of Rights,” which had the effect of easing public concerns about new federal authority over territories that would never become states.

This article is well worth your time. You'll also want to watch the video down below with Professor Magliocca where he is featured near the beginning.