Becoming the Bill of Rights: The 1791 Amendments from the Founding to the Fourteenth Amendment

65 Pages Posted: 4 Jan 2021 Last revised: 21 Feb 2023

See all articles by Kurt Lash

Kurt Lash

University of Richmond School of Law

Date Written: December 29, 2020

Abstract

The first ten amendments to the federal Constitution have no formal title. 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, they claim, 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.” 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 conducts an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction. These references, most of which are presented here for the first time, prove that the Revisionist claims about the first ten amendments are incorrect. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the 1791 amendments as “the Bill of Rights.” These references vastly outnumber historical references to the Declaration of Independence as a “bill of rights” and indicate that nineteenth century Americans were not at all confused about the meaning and content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 revisit and revise our understanding of the how post-civil war Americans abandoned the original federalist understanding of the Bill of Rights and embraced a new nationalist understanding their enumerated rights.

Keywords: Bill of Rights, Originalism, Fourteenth Amendment, Reconstruction, Constitutional Law, Constitutional History, Constitutional Interpretation

Suggested Citation

Lash, Kurt, Becoming the Bill of Rights: The 1791 Amendments from the Founding to the Fourteenth Amendment (December 29, 2020). Virginia Law Review, Vol. 110, 2024, Available at SSRN: https://ssrn.com/abstract=3757058 or http://dx.doi.org/10.2139/ssrn.3757058

Kurt Lash (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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