Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted The Canonization of the Bill of Rights on SSRN. Here is the abstract:
-
The Bill of Rights is a sacred part of our Constitution, but that was not true until the 1940s. This may seem like a remarkable claim because the promise of a set of amendments was needed to convince many skeptics to ratify the Constitution. Nonetheless, for more than a century after they became law, the Supreme Court did not even call the guarantees adopted in 1791 a “bill of rights.” Judicial citations to this bill of rights were rare and perfunctory from the 1890s until 1940, but in 1943 Justice Robert H. Jackson’s opinion for the Court in West Virginia State School Board of Education v. Barnette recited that phrase like a talisman and transformed that idea into a fixed star in our constitutional constellation. Why did this change in the legal culture occur at that time?
This Article argues that Franklin D. Roosevelt played a central role in making the Bill of Rights into the text that we know and love. Liberal scholars are fond of Roosevelt’s proposal for a “Second Bill of Rights” focused on economic security, but many are unaware that he discussed the original Bill of Rights more often and in greater depth than all of his predecessors put together. In a series of widely publicized speeches from 1934 to 1941, the President wielded the Bill of Rights for two purposes. First, he elevated those rights to refute the charge that the New Deal was crippling personal liberty. The attack was false, the President argued, because the gold standard of individual freedom was the Bill of Rights, and those privileges were not being infringed. Second, Roosevelt discussed the Bill of Rights to distinguish America from Nazi Germany. Before World War II, this comparison was designed to suggest that inaction on economic reform at home could lead to the rise of domestic tyranny that would destroy the Bill of Rights. After Pearl Harbor, the President turned the Bill of Rights into a patriotic rallying cry in a remarkable address that explicitly contrasted Hitler’s beliefs to the values embodied in these special constitutional amendments.
The President’s rhetorical offensive corresponded closely with the Supreme Court’s embrace of the Bill of Rights. Starting in 1940, the quantity and quality of the Court’s references to this phrase rose sharply. This was partly attributable to the collapse of the liberty of contract in 1937, but there are fascinating links between FDR’s take on the Bill of Rights and the themes expressed by the Court from 1940 and 1943, especially with respect to the President’s focus on the First Amendment as the most important section of the Bill of Rights. These threads were woven together by Barnette, which is replete with language about the meaning of the Bill of Rights in a world of tyrants and in a nation with a welfare state. While there are many reasons to admire Barnette, the case’s exalted status rests on its canonization of the Bill of Rights and on its skill in crystallizing Franklin Roosevelt’s constitutional vision, as endorsed by decisive popular majorities.
