When Did "Bill of Rights" Start to Mean "The First Ten(or Eight)Amendments"
CJohnson at law.utexas.edu
Mon May 11 13:34:05 PDT 2009
Pauline Maier has been searching hard and has been unable to find anyone
in 1789-1791 willing to call the first 10 Amdendments a Bill of Rights
There are lots of AF references to need for a bill of rights in the
ratification debates, but no one willing to say that what was adopted
answered that call. BR does not come into use fro adopted amendments
until I think she said late 19th century.
Realize at the time the first 10 are widely considered a sop,
signifying nothing. The big right, the right to jury in criminal cases,
had already been accorded. Nothing worth mentioning in the amendments.
Pauline and I will debate at SHEARS in Springfield Illinois in
July on NY Ratification debate. I will take position that NY
Anti-Federalists were dealt a losing hand and they played it badly, and
the best they could do was to fold it. None of their amendments are
worth succession from the Union over.
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Gordon
Sent: Monday, May 11, 2009 3:23 PM
To: Mark Tushnet
Cc: conlawprof at lists.ucla.edu
Subject: Re: When Did "Bill of Rights" Start to Mean "The First Ten(or
Add to that the very clear statement by Jefferson in a letter to Madison
on Dec 20, 1787:
"First, the omission of a bill of rights, providing clearly, and without
the aid of sophism, for freedom of religion, freedom of the press,
protection against standing armies, restriction of monopolies, the
eternal and unremitting force of the habeas corpus laws, and trials by
jury in all matters of fact triable by the laws of the land, and not by
the laws of nations"
Here he refers explicitly to the outlines for the Constitution, and
explicitly id's the rights we now consider as part of the Bill of Rights
- Gordon Silverstein
Mark Tushnet wrote:
> It seems to me a fair reading of Federalist 84 that Hamilton regarded
> the individual rights provisions of the unamended Constitution as a
> "bill of rights" in the sense used by proponents of adding amendments
> to the Constitution.
> Mark Tushnet
> William Nelson Cromwell Professor of Law Harvard Law School Areeda 223
> Cambridge, MA 02138
> ph: 617-496-4451 (office); 202-374-9571 (mobile)
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu on behalf of DavidEBernstein
> Sent: Mon 5/11/2009 3:54 PM
> To: conlawprof at lists.ucla.edu
> Subject: When Did "Bill of Rights" Start to Mean "The First Ten (or
> I've been looking a book called "The Living Constitution" by Howard
> Lee McBain, a professor at Columbia Law School, published in 1927. In
> this book, he discusses the "bill of rights" in the federal
> constitution, in which he includes individual rights protections in
> the original constitution (habeas corpus, bill of attainder, ex post
> facto law, definition of treason), several of the first ten amendments
> (though not explicitly excluding the rest), and the Fourteenth
> Amendment's Due Process Clause.
> Was this an aberration, or did "Bill of Rights" not have the same
> fixed meaning in those days it does today?
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