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01/05/2021

Kurt Lash: The 1791 Amendments as the 'Bill of Rights'
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists) (94 pages) on SSRN.  Here is the abstract:

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments.