From Appendix to Heart: Tracing the History of the Bill of Rights

By Weinberger, Lael | Constitutional Commentary, Fall 2019 | Go to article overview

From Appendix to Heart: Tracing the History of the Bill of Rights


Weinberger, Lael, Constitutional Commentary


THE HEART OF THE CONSTITUTION: HOW THE BILL OF RIGHTS BECAME THE BILL OF RIGHTS

Gerard N. Magliocca. (1) New York: Oxford University Press, 2018. Pp. xii + 235. $29.95 (Hardcover).

I. INTRODUCTION: THE THINGS WE TAKE FOR GRANTED

The upper level of the National Archives museum features three documents, grandly presented in a marble rotunda: the Declaration of Independence, the Constitution, and the Bill of Rights. When the hall is open for visitors, the documents are displayed behind bulletproof glass and constantly attended by guards; at night, the documents are stored still more securely in a bomb-proof vault. (3) "In this Rotunda are the most cherished material possessions of a great and good nation," President George W. Bush said in 2003 at an event reopening the hall after a major renovation. (4) Every branch of government was represented at the event, offering encomiums to the documents enshrined in the hall. Many commentators have observed that these documents are a kind of American scripture, sacred texts that every good citizen professes to honor. (5)

It was not always this way. In The Heart of the Constitution, Gerard Magliocca explains that the Bill of Rights was not just relegated to the status of afterthought for many years--it was in fact not even recognized as a single, unified document for much of its history. The Bill of Rights was not always known as "the Bill of Rights."

Magliocca has crafted a work of history about the idea of the Bill of Rights. The book is less a history of the Bill of Rights as law than it is the history of the Bill of Rights as concept and as rhetoric. This is not a history of the ways that legally enforceable provisions of the document were interpreted, applied, litigated, or enforced. The focus is on how people's ideas about a particular set of amendments to the Constitution evolved to see them as a single and iconic embodiment of American ideas and legal ideals.

This review highlights three of Magliocca's key arguments before concluding by considering the open questions that Magliocca leaves. Part II considers his evaluation of the bill of rights genre in the late eighteenth century. Part III turns to Magliocca's account of neglect--the long period in which the Bill of Rights just didn't appear in American discourse. Part IV describes (and offers some qualifications to) his explanation for increased interest in the Bill of Rights. Part V reflects on the limits of Magliocca's methodology.

II. THE BILL OF RIGHTS AS GENRE

The first "bill of rights" to claim the name was the English Bill of Rights of 1689, and this is where Magliocca starts his story. The English Bill of Rights was a product of the Glorious Revolution (1688), when Parliament deposed James II and installed William of Orange on the throne. James had posed a threat to the rights of Englishmen, said the theorists of the revolution, and Parliament's action had vindicated those rights. Parliament, convened irregularly without a king, issued a declaration of rights. After William took the throne, Parliament was properly assembled as such. It then put the rights into a bill and enacted that through its normal process, creating the Bill of Rights.

Magliocca argues that this established a template that would influence another generation of "bills of rights" enacted by the American colonists almost a century later, during their conflict with crown and Parliament. Magliocca argues that the phrase "bill of rights" was associated with a particular kind of document in the seventeenth and eighteenth centuries: a document with rhetorical flair, introduced by a rousing preamble, issued either as a stand-alone declaration or at the start of a constitution. The Continental Congress followed the example of the English when it drafted the "Declaration of Rights and Grievances" in 1774. As the newly-independent American colonies became states, several of them drafted their own bills of rights. …

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