Magliocca on the Bill of Rights in the Age of FDR

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted How Did the Bill of Rights Become the Bill of Rights?

This Article argues that the Bill of Rights is a legal fiction that legitimates the exercise of federal authority and judicial review.

At the Founding, bills of rights were revolutionary assertions that some states used to justify secession from the British Empire. During the debate over the Constitution, the absence of a bill of rights was a rallying cry for Anti-Federalists who mistrusted the establishment of a new national government. The First Congress responded with the first set of constitutional amendments, but hardly anyone then (or for a long time thereafter) called that text a bill of rights. Why? In part, the answer is that the state bills of rights at the time almost all came near the start of their constitutions and contained aphorisms about natural rights and popular sovereignty comparable to what was in the Declaration of Independence. What Congress wrote, by contrast, was put at the end of the Constitution and was largely free of rhetoric. Thus, in a formal sense the first set of amendments did not look like what people expected from a bill of rights. Moreover, there was no functional goal served by calling the amendments a bill of rights once they were ratified. The label was irrelevant.

Prior to the 1930s, the modern definition of the Bill of Rights was used extensively in three brief periods when there was a purpose for invoking that brand name. The first came during Reconstruction, when some members of Congress, especially John Bingham, sought to overturn Barron v. Baltimore and extend most or all of the first set of amendments to the states. Unlike the Anti-Federalists, who used the bill of rights trope to defend states-rights, Bingham and his allies embraced the label to increase federal power. When the incorporation debate arrived at the Supreme Court three decades later, Justice John Marshall Harlan picked up on Bingham’s lingo in dissenting from the Court’s refusal to abandon the spirit of Barron. Second, the “Bill of Rights” was trotted out after the Spanish-American War to legitimize our rule over the Philippines. The acquisition of colonies was highly controversial, and critics such as William Jennings Bryan argued that a constitutional democracy could not long endure as an empire that denied the protections of the “Bill of Rights” to its foreign subjects. Congress answered this challenge by extending parts of the first set of amendments to the Philippines, and in subsequent decisions the Supreme Court called this part of the Organic Act a territorial bill of rights. Third, when Theodore Roosevelt attacked judicial review by state courts as part of his platform to win the Republican presidential nomination in 1912, President William Howard Taft replied that state courts needed that power to save the Bill of Rights, even though most the first set of amendments did not apply to the states at the time.

The New Deal and World War II elevated the Bill of Rights to its present status as a means to support enhanced federal authority. Liberals are fond of Franklin D. Roosevelt’s proposed “Second Bill of Rights” on economic security, but he discussed the First Bill of Rights more often and in greater detail than all of his predecessors. He brandished the Bill of Rights in part to deflect charges that the New Deal was a dangerous invasion of individual freedom. The attack was false, FDR said, because the gold standard of liberty was the Bill of Rights, and those liberties were not being infringed. Roosevelt also stressed the Bill of Rights to distinguish the United States from the Third Reich. Prior to World War Two, this sort of comparison was meant to suggest that federal inaction could give use to a domestic tyranny that would erase our rights. A week after Hitler declared war on America, though, the President repackaged the Bill of Rights as a patriotic emblem with a dramatic radio address on the first “Bill of Rights Day” that expressly contrasted the values of the first set of amendments with Nazism.

FDR’s emphasis on the Bill of Rights was part of a broader change in popular and legal culture, and in 1940 the Court started citing the Bill of Rights to legitimize its decisions. Following the “switch-in-time” of 1937, the Justices needed a new justification for judicial review, and the Bill of Rights was an excellent tool for that purpose. West Virginia State School Board of Education v. Barnette gave a canonical defense of judicial review in 1943 by connecting the two ideas: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles applied by the courts.” In 1965, the Court elaborated on this idea in Griswold v. Connecticut and grounded the right of privacy in the claim that the “guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In these cases (and others), the Justices flourish the Bill of Rights as a symbol to shore up decisions that are novel.