Article

Separation of Structures

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation of powers scholarship has focused on the division of powers into legislative, executive, and judicial functions.

This Article supplies the missing account of separation of structures, and in the process defends the legitimacy of the administrative state against its critics. It argues that an emphasis on an agency’s institutional structure in adjudicating constitutionality is deeply rooted in constitutional design and the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanisms in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation.

Introduction

Modern separation of powers doctrine is in disarray. While the Supreme Court routinely decides questions of interbranch conflict, agency structure, and delegation,1 1.E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Stern v. Marshall, 564 U.S. 462, 469 (2011); Gundy v. United States, 139 S. Ct. 2116, 2129 (2019).Show More both its approaches and the cases’ outcomes feature sharp disagreement and immense unpredictability. Much of the contemporary jurisprudence on the President’s power to remove agency officials, for example, derives from two contrasting precedents. In Myers v. United States, the Court held that the Decision of 1789 gave the President constitutional entitlement to remove executive branch officials for any reason.2 2.272 U.S. 52, 119 (1926).Show More A mere nine years later, in Humphrey’s Executor v. United States, the Court empowered Congress to specify for-cause removal conditions for independent agencies with quasi-legislative and quasi-judicial functions.3 3.Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 699–701 (2018) (recounting Justice Sutherland’s attempts to distinguish Humphrey’s Executor from Myers based on the term of years established in the FTC’s organic statute and the quasi-legislative, quasi-judicial character of the FTC).Show More Today’s debate tracks this disagreement: after Morrison v. Olson articulated an open-textured inquiry of whether removal restrictions impede the President’s ability to execute his Take Care duties, the Court reversed course by adopting, in Free Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), a bright-line rule that dual-layered for-cause restrictions are unconstitutional.4 4.Morrison v. Olson, 487 U.S. 654, 691–92 (1988); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1841–43 (2016).Show More Such incongruity extends to other spheres of doctrinal engagement. With respect to congressional grants of adjudicative authority to non-Article III tribunals, the Court has applied a pragmatic test and concluded that an agency’s jurisdiction over common law counterclaims is constitutional; the Court has also taken a more formalist approach and held that such jurisdiction contravenes separation of powers.5 5.Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851–52 (1986); Stern, 564 U.S. at 482–83; see William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1519–21 (2020) (reconciling non-Article-III adjudication with functional separation of powers); infra Figure 2.Show More When determining which officials are “inferior Officers” for the purposes of the Appointments Clause, the Court has characterized an independent counsel—not subordinate to any executive branch officers—as an inferior officer, while defining, a decade later, inferior officers as those supervised by principal officers.6 6.Morrison, 487 U.S. at 671; Edmond v. United States, 520 U.S. 651, 663 (1997); see United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985–86 (2021).Show More The latest victims of this doctrinal quagmire are the Consumer Financial Protection Bureau (“CFPB”) and the Federal Housing Finance Agency (“FHFA”): the Court—splintered along ideological lines—invalidated for-cause removal restrictions on those agencies’ directors.7 7.Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021).Show More

Underpinning these doctrinal puzzles are patterns that only muddy the waters. The Court has announced, with some consistency, the purpose of its separation of powers doctrine: to erect “structural protections against abuse of power [that are] critical to preserving liberty.”8 8.Seila Law, 140 S. Ct. at 2202 (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986)).Show More But precisely how (or why) policing the confines of government bodies’ distinct powers contributes to individual freedom is unclear,9 9.Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L. Rev. 31, 37 (2016).Show More and the mechanisms of effectuating that goal are unpredictable. The Court has considered a combination of three factors: function, power, and design. It has asked whether the function, or the type of authority, exercised by the government body is of the kind constitutionally assigned to it by its Vesting Clause: for example, whether the Commodities Futures Trading Commission’s jurisdiction over common law claims represents an exercise of the judicial function.10 10.Schor, 478 U.S. at 851.Show More It has asked whether the magnitude of one actor’s authority impedes the ability of another to fulfill its constitutional responsibilities: for example, whether the CFPB has “potent enforcement powers” and “extensive adjudicatory authority.”11 11.Seila Law, 140 S. Ct. at 2193.Show More It has also considered issues of institutional design: for example, whether congressionally mandated for-cause removal conditions create a double layer of protection for executive personnel.12 12.Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see also Lisa Shultz Bressman, What Seila Law Says About Chief Justice Roberts’ View of the Administrative State, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-bress‌man [https://perma.cc/97HT-CNRH] (arguing that Seila Law changes existing jurisprudence by “let[ting] the structure of the agency determine the degree of presidential control over its principal officers”).Show More But precisely which factor the Court will emphasize (and the interaction among them) remains a puzzle. In particular, it is unclear whether considerations of design constitute an independent analysis or are merely parasitic upon issues of power and function. For these reasons, scholars have characterized separation of powers doctrine as a “hoary non sequitur”13 13.Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 105 (1988).Show More and criticized it for its “[l]ack of progress.”14 14.M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1129 (2000); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreview‌blog.uchicago.edu/2020/08/27/seila-mashaw [https://perma.cc/BMT9-NK6C] (characterizing the doctrine on for-cause removal as a “jurisprudential train wreck”).Show More

Academic commentary has not successfully explained the doctrinal variation.15 15.See infra Part I.Show More Scholars have developed complex models to ground the Court’s separation of powers jurisprudence. But those models only underscore disagreement over the fundamental building blocks of their theories. Relying on the Vesting Clauses, scholars have argued that the three constitutional branches of government are each assigned distinct functions.16 16.See infra notes 32–36 and accompanying text.Show More These separation models, however, suffer from inconsistency with contemporary practice, not the least from the rise of the powerful administrative state.17 17.See infra notes 40–48 and accompanying text. Strict separation-model theorists question the legitimacy of the modern administrative state, prominently by appeals to the nondelegation doctrine. E.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (arguing that the “civics-book model of legislators legislating, executives executing, and judges judging has enormous intuitive—and legitimating—power,” which explains the modern obsession with the nondelegation doctrine despite its disuse); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021) (arguing there is significant evidence the Founding generation adhered to a robust nondelegation doctrine that was keenly faithful to traditional separation of powers); see also infra Subsection IV.B.3.Show More Other scholars have committed to a more fluid balance among the branches and proposed judicial intervention as a means to restore accountability and good governance.18 18.See infra notes 49–55 and accompanying text.Show More But these balance models offer little doctrinal determinacy and threaten nonjusticiability.19 19.See infra notes 56–57 and accompanying text.Show More Most attempts to combine the two main approaches are limited to specialized arenas and have not generated consensus.20 20.See infra Section I.C.Show More The most recent scholarly strands have suggested exogenous approaches that abandon existing doctrinal molds altogether.21 21.See infra notes 73–78.Show More

This Article argues that, in contemporary discourse about separation of powers, an important piece of the puzzle is missing. The Article articulates a theory of separation of structures, which in its simplest version posits that political authority should depend not only on the power being exercised but also on the institutional structure of the government entity that exercises the power. Previous theories—separation and balance models alike—have focused exclusively on the nature or the magnitude of the contested functions: for example, whether an agency in the executive branch has performed actions that are adjudicative in nature (and therefore encroached on the judiciary), or whether Congress has assigned to itself so extensive an authority as to disrupt the distribution of powers among the constitutional branches.22 22.See infra Sections I.A–B.Show More But an account of separation of powers is incomplete without considering the structural design of the entity performing the contested functions: for example, whether an agency’s unitary structure concentrates power and heightens the need for accountability, or whether a multimember body facilitates deliberation and expertise necessary for technical decision-making. The case law of the past decade has unmistakably established the relevance of institutional design.23 23.E.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); Collins v. Yellen, 141 S. Ct. 1761, 1770–71 (2021).Show More This Article supplies this missing account of institutional structure in separation of powers.

Importantly, separation of structures originated in ancient Greek and Roman political theory, indelibly shaped the Founding generation’s understanding, and formed an integral part of the constitutional design. Separation of powers—the structural and the functional strands—finds its genesis in Aristotle’s typology of regimes, which divides constitutions into six types based on the numerosity of the governing class and constitution’s compliance with (or deviation from) the normative ends of government.24 24.See infra Section II.A.Show More Polybius, a second-century Greek historian, transforms this typology into a theory of mixed government.25 25.See infra Section II.B.Show More None of the basic Aristotelian constitutional forms (monarchy, aristocracy, and democracy), individually considered, instantiates desirable political design. The perfect constitution incorporates each regime type. Separation of structures remained highly influential in the early-modern period: Montesquieu subscribed to a version of the model,26 26.See infra Section II.D.Show More and the English political theorists adapted it to justify the constitutional setup of England.27 27.See infra Section II.C.Show More The Founding generation, well-versed in classical philosophy and ancient history, saw separation of structures and mixed government as background assumptions of any successful constitutional design.28 28.See infra Part III.Show More Although the Founders ultimately abandoned the British (what I call the sociological) notion of mixed government, the structural provisions of the Constitution, with its institution of representation, evinced a return to Aristotelian separation of structures. The absence of separation of structures in contemporary discussion accounts in part for the doctrinal disarray and the scholarly disagreement.29 29.Most scholars give only cursory treatment to the Aristotelian origins of separation of powers. See, e.g., Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Nw. U. L. Rev. 527, 529–36 (2012). Serious assessments of classical political philosophy’s contribution to modern jurisprudence are outdated and cannot account for the dramatic rise of the administrative state. See John A. Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393, 393–94 (1923); Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Admin. L. Rev. 299, 300 (1976); Malcolm P. Sharp, The Classical American Doctrine of the “Separation of Powers,” 2 U. Chi. L. Rev. 385, 386–87 (1935) (identifying Aristotle’s Politics as containing the “original statement of the doctrine” of mixed regimes “closely related in classic American political writing to the separation of powers”). While Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 152–53 (1998) rejects the mixed-regime view of separation of powers, John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comment. 283, 292 (1999) acknowledges its inevitability. Part III argues that while Wood rightly points out the demise of the British theory, the Founders’ rejection of the sociological version of mixed government in fact signaled a return to the basic Aristotelian model.Show More

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by scholars. This structural framework thus provides a limiting principle to the doctrine of Free Enterprise Fund, Seila Law, and Collins v. Yellen. Further, congressional delegation to agencies cannot be conceptualized as a violation of separation of powers on the sole ground that delegation allows executive branch agencies to exercise legislative power. Instead, advocates of a muscular nondelegation doctrine often fail to recognize that agency structure can mitigate potential violations of functional separation of powers. Both implications are urgent in today’s doctrinal milieu. Not only does the Court continue to entrench its agency-structure jurisprudence—it appears poised to extend the nondelegation doctrine.30 30.See infra Subsection IV.B.3.Show More

The remainder of the Article proceeds as follows. Part I situates separation of structures within the existing scholarly models. Part II turns to the classical and early-modern origins of separation of structures. Part III examines the adoption of separation of structures as part of Founding-era constitutional design. Part IV discusses doctrinal and scholarly implications.

  1.  E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Stern v. Marshall, 564 U.S. 462, 469 (2011); Gundy v. United States, 139 S. Ct. 2116, 2129 (2019). ↑
  2.  272 U.S. 52, 119 (1926). ↑
  3.  Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 699–701 (2018) (recounting Justice Sutherland’s attempts to distinguish Humphrey’s Executor from Myers based on the term of years established in the FTC’s organic statute and the quasi-legislative, quasi-judicial character of the FTC). ↑
  4.  Morrison v. Olson, 487 U.S. 654, 691–92 (1988); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1841–43 (2016). ↑
  5.  Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851–52 (1986); Stern, 564 U.S. at 482–83; see William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1519–21 (2020) (reconciling non-Article-III adjudication with functional separation of powers); infra Figure 2. ↑
  6.  Morrison, 487 U.S. at 671; Edmond v. United States, 520 U.S. 651, 663 (1997); see United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985–86 (2021). ↑
  7.  Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021). ↑
  8.  Seila Law, 140 S. Ct. at 2202 (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986)). ↑
  9.  Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L. Rev. 31, 37 (2016). ↑
  10.  Schor, 478 U.S. at 851. ↑
  11.  Seila Law, 140 S. Ct. at 2193. ↑
  12.  Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see also Lisa Shultz Bressman, What Seila Law Says About Chief Justice Roberts’ View of the Administrative State, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-bress‌man [https://perma.cc/97HT-CNRH] (arguing that Seila Law changes existing jurisprudence by “let[ting] the structure of the agency determine the degree of presidential control over its principal officers”). ↑
  13.  Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 105 (1988). ↑
  14.  M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1129 (2000); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreview‌blog.uchicago.edu/2020/08/27/seila-mashaw [https://perma.cc/BMT9-NK6C] (characterizing the doctrine on for-cause removal as a “jurisprudential train wreck”). ↑
  15.  See infra Part I. ↑
  16.  See infra notes 32–36 and accompanying text. ↑
  17.  See infra notes 40–48 and accompanying text. Strict separation-model theorists question the legitimacy of the modern administrative state, prominently by appeals to the nondelegation doctrine. E.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (arguing that the “civics-book model of legislators legislating, executives executing, and judges judging has enormous intuitive—and legitimating—power,” which explains the modern obsession with the nondelegation doctrine despite its disuse); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021) (arguing there is significant evidence the Founding generation adhered to a robust nondelegation doctrine that was keenly faithful to traditional separation of powers); see also infra Subsection IV.B.3. ↑
  18.  See infra notes 49–55 and accompanying text. ↑
  19.  See infra notes 56–57 and accompanying text. ↑
  20.  See infra Section I.C. ↑
  21.  See infra notes 73–78. ↑
  22.  See infra Sections I.A–B. ↑
  23.  E.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); Collins v. Yellen, 141 S. Ct. 1761, 1770–71 (2021). ↑
  24.  See infra Section II.A. ↑
  25.  See infra Section II.B. ↑
  26.  See infra Section II.D. ↑
  27.  See infra Section II.C. ↑
  28.  See infra Part III. ↑
  29.  Most scholars give only cursory treatment to the Aristotelian origins of separation of powers. See, e.g., Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Nw. U. L. Rev. 527, 529–36 (2012). Serious assessments of classical political philosophy’s contribution to modern jurisprudence are outdated and cannot account for the dramatic rise of the administrative state. See John A. Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393, 393–94 (1923); Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Admin. L. Rev. 299, 300 (1976); Malcolm P. Sharp, The Classical American Doctrine of the “Separation of Powers,” 2 U. Chi. L. Rev. 385, 386–87 (1935) (identifying Aristotle’s Politics as containing the “original statement of the doctrine” of mixed regimes “closely related in classic American political writing to the separation of powers”). While Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 152–53 (1998) rejects the mixed-regime view of separation of powers, John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comment. 283, 292 (1999) acknowledges its inevitability. Part III argues that while Wood rightly points out the demise of the British theory, the Founders’ rejection of the sociological version of mixed government in fact signaled a return to the basic Aristotelian model. ↑

  30.  See infra Subsection IV.B.3. ↑

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that non-transsubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism.

Introduction

What if the U.S. Supreme Court had decided Dobbs v. Jackson Women’s Health Organization1 1.142 S. Ct. 2228 (2022).Show More differently, such that Roe v. Wade2 2.410 U.S. 113 (1973).Show More (or some other set of abortion protections) remained the law of the land? It might not have mattered much in practice. For as those paying attention even before the Dobbs opinion leak will remember, Texas enacted a “heartbeat bill,” S.B. 8 (Senate Bill 8), prohibiting abortion at a point in pregnancy long before prevailing precedent allowed—and long before many people would have known they were pregnant.3 3.See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021, 11:00 AM), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-ab‌ortions-law [https://perma.cc/MRV9-UFKW].Show More By confining the bill’s enforcement to civil suits with private plaintiffs, Texas circumvented the usual system that enables regulated parties to challenge a law’s constitutionality in federal court without running the risk of violating it.4 4.See Charlie Savage, What is Ex Parte Young, Much-Discussed in the Texas Abortion Case?, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/11/01/us/politics/what-is-ex-parte.html [https://perma.cc/ZB9F-ELTX].Show More Separate and apart from Dobbs, that is, Texas avoided a crucial remedy for enforcing abortion rights and, in doing so, essentially eliminated abortion rights themselves. Other states soon followed suit.5 5.See Kate Zernike, Idaho Is First State to Pass Abortion Ban Based on Texas’ Law, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.‌html [https://perma.cc/9U98-2CTA].Show More

The Supreme Court refused to reject this scheme first on the shadow docket (by declining to prevent S.B. 8 from taking effect)6 6.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021).Show More and then after merits briefing and oral argument (by holding that challengers could not sue state court judges, state court clerks, the state attorney general, or a potential private plaintiff).7 7.Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021).Show More The Court did permit the case to continue against a handful of Texas officials responsible for medical licensing.8 8.Id.Show More But in response to a certified question on remand, the Supreme Court of Texas interpreted state law as withholding enforcement authority from those officials, effectively ending the attack on S.B. 8 more than three months before Dobbs came down.9 9.See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); see also Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”).Show More

Critics condemned the Supreme Court for allowing this remedial end-run around abortion rights.10 10.See, e.g., Strict Scrutiny, A Uterus, If You Can Keep It, Crooked Media, at 27:00 (Dec. 10, 2021), https://castbox.fm/episode/A-Uterus%2C-If-You-Can-Keep-It-id2173578-id4496‌96579? [https://perma.cc/LMQ9-WS9A] (podcast episode hosted by Professors Leah Litman, Melissa Murray, and Kate Shaw, with guest Professor Steve Vladeck).Show More One prominent theme became that the majority would have never tolerated the similar treatment of some preferred legal protection—say, gun rights. “Imagine a world in which the DOJ was challenging a CA law that was identical to TX #SB8 but swap abortion for guns,” Professor Amanda Hollis-Brusky posted on X, formerly Twitter.11 11.Amanda Hollis-Brusky (@HollisBrusky), X (Dec. 10, 2021, 11:00 AM), https://twitter.‌com/HollisBrusky/status/1469336195045814278?s=20 [https://perma.cc/NRH3-SCD3].Show More “Gun sales have stopped,” and “[g]un ownership is a de facto state crime despite 2nd A,” she continued, referencing the Second Amendment right to keep and bear arms.12 12.Id.Show More “Now ask yourself,” she said rhetorically: “[W]ould the conservative Justices have ruled differently?”13 13.Id.; see also, e.g., Jacob D. Charles, Are Gun Rights Safe After S.B. 8?, The Hill (Dec. 15, 2021, 9:31 AM), https://thehill.com/opinion/judiciary/585700-are-gun-rights-safe-after-sb8/ [https://perma.cc/LXW5-DPRB] (stating that “it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake”).Show More This refrain reemerged when California indeed enacted a copycat gun-control scheme14 14.E.g., Evan Bernick (@evanbernick), X (July 23, 2022, 11:50 PM), https://perma.cc/‌VAQ4-4MPW (“If SCOTUS does take [the California gun control law] up, I doubt it will be treated similarly. Which is part of why the prospect of this getting struck down is not going to deter conservatives from modeling other stuff on SB 8.”); see Cal. Code Civ. Proc. § 1021.11.Show More—which went into effect after a federal trial court held a tangential provision invalid.15 15.See S. Bay Rod & Gun Club, Inc. v. Bonta, 646 F. Supp. 3d 1232, 1235 (S.D. Cal. 2022); Miller v. Bonta, 646 F. Supp. 3d 1218, 1222 (S.D. Cal. 2022); see Jon Healey, Californians Have a Green Light to Sue the Gun Industry. How Will That Work?, L.A. Times (Jan. 1, 2023, 3:36 PM), https://www.latimes.com/california/story/2023-01-01/californians-will-soon-have‌-their-chance-to-sue-the-gun-industry [https://perma.cc/XT7P-6A7Q] (explaining that a federal district court “nixed . . . the ‘fee-shifting’ provision that would have saddled gun-industry litigants with all or part of the court costs from any suit challenging the state’s gun controls, even if they prevailed in court,” but that “[t]he rest of [the law] remains in effect, including the private right of action”).Show More

Stakeholders on the left are justified in feeling this anxiety. But they are not alone, for stakeholders on the right have repeatedly leveled a converse condemnation about the preceding era in judicial history. The majority in Dobbs itself contended that prior abortion jurisprudence “diluted the strict standard for facial constitutional challenges,” “ignored the Court’s third-party standing doctrine,” “disregarded standard res judicata principles,” “distorted First Amendment doctrines,” and “flouted” both “the ordinary rules on the severability of unconstitutional provisions” and “the rule that statutes should be read where possible to avoid unconstitutionality.”16 16.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022).Show More

Comments like these arise from and attest to the idea that at the federal level, the United States has two Constitutions: what one could call the conservative Constitution and what one could call the liberal or progressive Constitution. The point is not only that different ideological groups interpret the Constitution using different methods and causing different effects. The point is also that different ideological groups value, invoke, and—in the case of judges—advance the law surrounding different constitutional provisions to the detriment or disregard of others. As Professor Zachary Price puts a similar point, while progressives “typically embrace a constitutional vision centered on advancing social justice, protecting sexual and reproductive autonomy, and enabling expert administrative governance,” conservatives “typically focus on protecting historic understandings of individual rights (including gun rights and religious freedom), leaving moral questions to the political process, and restoring a traditional view of separation of powers.”17 17.Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1280 (2019).Show More

This phenomenon comes into stark relief with respect to individual rights—those provisions, largely located in the Bill of Rights and the Reconstruction Amendments, that constrain government action to preserve spheres of personal freedom. A 2016 survey, for example, found that while “41% of Americans” identified the First Amendment as “the most important” part of the Bill of Rights, “Republicans (27%)” were “much more likely than Democrats (6%) to say that the Second Amendment is the most important,” with Democrats putting the Fourth Amendment in second place.18 18.Peter Moore, First Amendment Is the Most Important, and Well Known, Amendment, YouGov (Apr. 12, 2016, 3:15 PM), https://today.yougov.com/topics/politics/articles-reports/‌2016/04/12/bill-rights [https://perma.cc/Q73Y-5FDM].Show More And while the Roberts Court has recently elevated Second Amendment protections to unprecedented heights,19 19.See generally Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023) (outlining the unique development of, and some challenges within, Second Amendment jurisprudence).Show More the Justices have not granted plenary review on a Fourth Amendment question for more than three years.20 20.See Joel S. Johnson, Supreme Court Cases of Interest, Crim. Just., Fall 2023, at 44, 44–45 (noting that “[t]he Court has not granted certiorari on a Fourth Amendment issue since 2020”).Show More

That different ideological groups favor and disfavor separate sets of constitutional provisions undoubtedly contributes to declining confidence in the Supreme Court.21 21.See Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme‌-court-leak-abortion-roe-wade.html [https://perma.cc/6VD6-GJF9] (“A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.”).Show More Knowing that members of the two major political parties and the predominant legal factions prefer discrete protections, it is not surprising that recent survey results indicate that when asked how well the Justices are “keeping their own political views out of how they decide major cases,” 53% of all respondents answered “only fair” or “poor,” while just 18% answered “excellent” or “good.”22 22.Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-sup‌reme-court-decline-sharply-following-abortion-ruling/ [https://perma.cc/MXM3-8TP7].Show More Nor is it surprising, given the Court’s changing composition, that Democrats expressed significantly more negative views, with 70% choosing “only fair” or “poor” and just 6% choosing “excellent” or “good.”23 23.Id.Show More Given these realities, one could reasonably feel pessimistic about how much could be done in the near future from a cross-ideological perspective to improve perceptions about the law of constitutional rights. A possible path to achieving a similar bridge-building objective, however, emerges with respect to how courts enforce such rights—with respect, that is, to the law of constitutional remedies.

This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. Underlying both sets of abortion-related criticisms above is the idea that certain facets of the law—and especially the law of constitutional remedies, understood “broadly” (for thematic purposes here, but not everywhere) as including “rules for implementing constitutional rights and preventing or punishing their violation”24 24.Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 861 (1999).Show More—should stay consistent across separate substantive areas. This idea, the remedial consistency paradigm, derives in part from the deeply rooted values of generality and neutrality in judicial decision-making. But the remedial consistency paradigm does not always control. With the Roberts Court repeatedly placing discrete rights guarantees on different remedial grounds, this topic deserves systematic scholarly scrutiny.

This Article advances in three parts. Part I explains how the remedial consistency paradigm arises from the concept of transsubstantivity, beginning by connecting the paradigm with generality and neutrality values and exploring transsubstantivity’s current salience. This Part then offers several conceptual observations—including that while discussions about transsubstantivity usually relate to doctrinal consistency across discrete legal issues, transsubstantivity can also relate to doctrinal consistency across discrete interests or facts; that transsubstantivity represents a matter of degree; and that transsubstantivity depends on the measure of evaluation. Finally, this Part discusses why transsubstantivity is especially important in the context of constitutional remedies as a species of process law and as a possible point of cross-ideological consensus. Critically, constitutional remedies are the focus of the analysis throughout. But before introducing that context, the explanatory sections rely on examples from other areas as well. The implication is not that considerations concerning transsubstantivity should look the same within and beyond constitutional remedies—just that one can gain a richer understanding of the concept without worrying about context-specific limitations.

Part II proposes a novel framework for understanding remedial inconsistency in constitutional adjudication. The framework provides a classification of different kinds of remedial inconsistency organized by the clarity of non-transsubstantivity, with concrete examples for each. Transparent inconsistency, which includes prophylactic and legislative remedial doctrines, refers to areas of law that treat discrete referents differently on their faces. Translucent inconsistency emerges through background knowledge about the legal landscape, including with respect to areas implicating fact-sensitive versus fact-insensitive claims and irregular interactions with external sources of law. Opaque inconsistency, which often surrounds doctrines involving indeterminate tests and comparator cases demonstrating uneven reliance on expansive principles, becomes apparent only with inductive analysis of actual applications.

This Part introduces, both conceptually and illustratively, a large body of constitutional remedies doctrines that treat discrete substantive concerns differently. The catalog is extensive but not exhaustive, and the borders between the categories of transparent, translucent, and opaque inconsistency can be cloudy and contestable. Someone may think, for instance, that a case described here as opaquely inconsistent is actually translucently inconsistent—or not inconsistent with other relevant areas at all. But that should not detract from the bigger-picture argument that non-transsubstantivity is present, prevalent, and patterned along analytically important lines throughout constitutional remedies law.

Courts, and especially the Supreme Court, can do better. Moving from the descriptive to the normative, Part III explores four ideas for improving judicial decision-making premised on the preceding analysis. The first revolves around enhancing attention on remedial consistency by spotlighting occasions for adherence and defending instances of divergence. One way to do so involves imagining a rebuttable presumption by which constitutional remedies should apply the same way to discrete referents unless circumstances warrant idiosyncratic treatment. The second idea for improvement entails increasing transparency. All non-transsubstantive doctrines involve variable ranges, but because they apply differently to discrete referents on their faces, transparently inconsistent doctrines involve variable rationales too. The latter characteristic facilitates holding courts accountable for departures from the remedial consistency paradigm at the time of decision and evaluating their continuing justifications into the future—such that judges should work to make inconsistent doctrines more transparent.

The third idea for improvement concerns decreasing the overdetermination endemic to judicial decision-making. Judges have a lawyerly habit of oversubstantiating their analyses with more lines of logic than necessary. This runs the risk of introducing inconsistent elements (and especially opaquely inconsistent elements) into diverse doctrinal areas, as the more reasoning an opinion includes, the more likely that it will conflict with the reasoning in other opinions. The fourth idea for improvement encourages reconsidering, though not necessarily rejecting, foundational doctrines that become inconsistent (or more inconsistent) across constitutional contexts through extensive exceptions or debatable distinctions. Rather than overruling precedent, courts often carve controversial case law into finer and finer, and sometimes more non-transsubstantive, fragments. Focusing on remedial consistency favors reevaluating such decisions in whole.

Among additional contributions, this Part argues that centering remedial consistency as an important, but not absolute, aspect of constitutional law could potentially help reinforce the Supreme Court’s legitimacy at this time of widespread skepticism. For the Court loses legitimacy—whether conceptualized sociologically, morally, or legally—by acting in ways that people perceive as “political” rather than “legal.” By reducing opportunities for favoritism and disfavoritism (and especially unacknowledged favoritism and disfavoritism) among constitutional claims, the ideas suggested here could help renew some faith in the Court as committed to deciding cases on appropriate bases.

  1.  142 S. Ct. 2228 (2022). ↑
  2.  410 U.S. 113 (1973). ↑
  3.  See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021, 11:00 AM), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-ab‌ortions-law [https://perma.cc/MRV9-UFKW]. ↑
  4.  See Charlie Savage, What is Ex Parte Young, Much-Discussed in the Texas Abortion Case?, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/11/01/us/politics/what-is-ex-parte.html [https://perma.cc/ZB9F-ELTX]. ↑
  5.  See Kate Zernike, Idaho Is First State to Pass Abortion Ban Based on Texas’ Law, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.‌html [https://perma.cc/9U98-2CTA]. ↑
  6.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021). ↑
  7.  Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021). ↑
  8.  Id. ↑
  9.  See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); see also Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”). ↑
  10.  See, e.g., Strict Scrutiny, A Uterus, If You Can Keep It, Crooked Media, at 27:00 (Dec. 10, 2021), https://castbox.fm/episode/A-Uterus%2C-If-You-Can-Keep-It-id2173578-id4496‌96579? [https://perma.cc/LMQ9-WS9A] (podcast episode hosted by Professors Leah Litman, Melissa Murray, and Kate Shaw, with guest Professor Steve Vladeck). ↑
  11.  Amanda Hollis-Brusky (@HollisBrusky), X (Dec. 10, 2021, 11:00 AM), https://twitter.‌com/HollisBrusky/status/1469336195045814278?s=20 [https://perma.cc/NRH3-SCD3]. ↑
  12.  Id. ↑
  13.  Id.; see also, e.g., Jacob D. Charles, Are Gun Rights Safe After S.B. 8?, The Hill (Dec. 15, 2021, 9:31 AM), https://thehill.com/opinion/judiciary/585700-are-gun-rights-safe-after-sb8/ [https://perma.cc/LXW5-DPRB] (stating that “it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake”). ↑
  14.  E.g., Evan Bernick (@evanbernick), X (July 23, 2022, 11:50 PM), https://perma.cc/‌VAQ4-4MPW (“If SCOTUS does take [the California gun control law] up, I doubt it will be treated similarly. Which is part of why the prospect of this getting struck down is not going to deter conservatives from modeling other stuff on SB 8.”); see Cal. Code Civ. Proc. § 1021.11. ↑
  15.  See S. Bay Rod & Gun Club, Inc. v. Bonta, 646 F. Supp. 3d 1232, 1235 (S.D. Cal. 2022); Miller v. Bonta, 646 F. Supp. 3d 1218, 1222 (S.D. Cal. 2022); see Jon Healey, Californians Have a Green Light to Sue the Gun Industry. How Will That Work?, L.A. Times (Jan. 1, 2023, 3:36 PM), https://www.latimes.com/california/story/2023-01-01/californians-will-soon-have‌-their-chance-to-sue-the-gun-industry [https://perma.cc/XT7P-6A7Q] (explaining that a federal district court “nixed . . . the ‘fee-shifting’ provision that would have saddled gun-industry litigants with all or part of the court costs from any suit challenging the state’s gun controls, even if they prevailed in court,” but that “[t]he rest of [the law] remains in effect, including the private right of action”). ↑
  16.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022). ↑
  17.  Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1280 (2019). ↑
  18.  Peter Moore, First Amendment Is the Most Important, and Well Known, Amendment, YouGov (Apr. 12, 2016, 3:15 PM), https://today.yougov.com/topics/politics/articles-reports/‌2016/04/12/bill-rights [https://perma.cc/Q73Y-5FDM]. ↑
  19.  See generally Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023) (outlining the unique development of, and some challenges within, Second Amendment jurisprudence). ↑
  20.  See Joel S. Johnson, Supreme Court Cases of Interest, Crim. Just., Fall 2023, at 44, 44–45 (noting that “[t]he Court has not granted certiorari on a Fourth Amendment issue since 2020”). ↑
  21.  See Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme‌-court-leak-abortion-roe-wade.html [https://perma.cc/6VD6-GJF9] (“A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.”). ↑
  22.  Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-sup‌reme-court-decline-sharply-following-abortion-ruling/ [https://perma.cc/MXM3-8TP7]. ↑
  23.  Id. ↑
  24.  Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 861 (1999). ↑

Becoming the “Bill of Rights”: The First Ten Amendments from Founding to Reconstruction

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, 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 Article conducts 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, prove that the revisionist claims about the first ten amendments are false. 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 how post-Civil War Americans abandoned the original federalist understanding of the Bill of Rights and embraced a new nationalist understanding of their enumerated rights.

Introduction

Americans commonly refer to the first ten amendments to the federal Constitution as “the Bill of Rights.” The amendments themselves, however, have no such title. Unlike the “Declaration of Rights” annexed to many state constitutions,1 1.See, e.g., Va. Const. art. 1 (drafted 1776, affixed to its constitution in 1830); Pa. Const. ch. I (1776); Mass. Const. pt. I (1780).Show More the ten amendments added to the federal Constitution in 1791 have no formal title at all.2 2.For a transcription of the official copy of the 1791 amendments, including the message submitted with the original proposed twelve amendments, see The Bill of Rights: A Transcription, National Archives, https://www.archives.gov/founding-docs/bill-of-rights-transcript [https://perma.cc/5YP9-2EPP] (last visited Jan. 15, 2024). For a PDF of the actual document, see The Bill of Rights, National Archives, https://www.archives.gov/founding-docs/bill-of-rights [https://perma.cc/5K6S-4ZRD] (last visited Jan. 15, 2024).Show More It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, 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.3 3.See, e.g., Randy Barnett & Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 326 (2021) (“[T]his phrase [the Bill of Rights] did not commonly refer to the first ten amendments until sometime in the twentieth century . . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”); Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 111 (2020) (“[T]he term ‘bill of rights’ was not used as a term of art for the first eight Amendments to the U.S. Constitution until well after the Civil War.”); Gerard N. Magliocca, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights 6 (2018) (“The belief that the first ten amendments are the Bill of Rights did not become dominant until the twentieth century.”); Michael J. Douma, How the First Ten Amendments Became the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 593, 609–11 (2017) (explaining that the term “Bill of Rights” was not defined as the first ten amendments prior to the late 1920s and early 1930s); Pauline Maier, The Strange History of the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 497, 506–11 (2017) (arguing that the “Bill of Rights” did not take on its current meaning as a reference to the 1791 amendments until the 1930s).Show More Prior to that, revisionists argue, most Americans either did not believe they had a national bill of rights4 4.Magliocca, supra note 3, at 5 (“[D]uring the nineteenth century, most people simply did not think that the country had a national bill of rights . . . .”).Show More or they would have pointed to the Declaration of Independence as the country’s “bill of rights.”5 5.Id. at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (arguing that “even after the first ten amendments were added to the [Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights’”).Show More A number of revisionists insist that nineteenth-century Americans used the term “bill of rights” as an abstract reference to a variety of culturally important documents, including the Declaration of Independence and the entire federal Constitution.6 6.Douma, supra note 3, at 600–01 (“[A] bill of rights was conceived of as an abstraction . . . . [I]n the early Republic, ‘bill of rights’ as a term was quite distinct from and referred to more than just the first ten amendments.”); id. at 602 (noting that prior to the twentieth century, the term “Bill of Rights” was more often used as an “abstract concept” than a reference to a specific document); Randy Barnett & Evan Bernick, The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 568–69 (2019) (first citing Magliocca, supra note 3, at 6, 90; then citing Douma, supra note 3, at 609–11; and then citing Maier, supra note 3, at 506–11) (“To begin with, recent scholarship has shown that the first eight or ten amendments to the Constitution were not commonly referred to as ‘the Bill of Rights’ until well into the twentieth century . . . . [As late as 1868,] ‘the Bill of Rights’ lacked a standard meaning.”).Show More These scholars maintain that the term “bill of rights” remained a “mass of linguistic confusion” until the twentieth century, when common usage finally coalesced around the 1791 amendments.7 7.Douma, supra note 3, at 598.Show More

If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error.8 8.According to Randy Barnett and Evan Bernick, “[a]ttributing the post-New Deal meaning of ‘the Bill of Rights’ to the pre-Fourteenth Amendment public is anachronistic. (Although, we admit, it was an understandable mistake to have made before this recent revisionist scholarship.).” Barnett & Bernick, supra note 6, at 568. Similarly, Michael Douma insists that “anachronistic” scholarly references to the 1791 amendments as the “bill of rights” “runs through the whole sub-field of constitutional history.” Douma, supra note 3, at 596.Show More For more than a century, historians and legal scholars have presumed that, absent a specific signal indicating otherwise, nineteenth-century references to the American “bill of rights” referred to the rights listed in the 1791 amendments.9 9.A full list would fill libraries. Among some of the more influential works that would have to be revised or reevaluated would include 1 Joseph Story, Commentaries on the Constitution 276 (1st ed. 1833); Thomas Cooley, The General Principles of Constitutional Law in the United States 199–204 (1880); Edward Dumbauld, The Bill of Rights and What It Means Today vii (1957); Learned Hand, The Bill of Rights 1–2 (1958); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1123–24 (1971); Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 165–67 (1992); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 1 (1986); Akhil Reed Amar, The Bill of Rights: Creation and Reconstructionxi (1998); Leonard W. Levy, Origins of the Bill of Rights 1 (1999); Carol Berkin, The Bill of Rights: The Fight to Secure America’s Liberties 1–3 (2015).Show More If this assumption is not correct, then this calls into question a great body of historical scholarship on everything from the history of the original “bill of rights,”10 10.See, e.g., Levy, supra note 9, at 1.Show More to antebellum abolitionist efforts to enforce “the bill of rights,”11 11.See, e.g., Kent Curtis, supra note 9, at 51–54; Amar, supra note 9, at 161–62.Show More to Reconstruction Republican claims that the Fourteenth Amendment would apply “the bill of rights” against the states.12 12.See, e.g., 2 G. Edward White, Law in American History: From Reconstruction Through the 1920s, at 10 (2016).Show More Moreover, since scholars and judges (including Supreme Court Justices) have relied on this scholarship in considering whether the Fourteenth Amendment incorporates the Bill of Rights, revisionist claims call into question the historical justification for contemporary incorporation doctrine.13 13.See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 754 (2010); Adamson v. California, 332 U.S. 46, 70–72, 92–110 (1947) (Black, J., dissenting); McDonald, 561 U.S. at 828 (Thomas, J., concurring in part and concurring in the judgment) (discussing the history of the Fourteenth Amendment, including Justice Black’s historical appendix in Adamson). Bill of Rights revisionism, if correct, also would require rethinking a number of additional common assumptions in legal historical scholarship, including the presumed shift from a federalist reading of the 1791 “bill of rights” to a more libertarian understanding at the time of Reconstruction. See Amar, supra note 9, at 190, 284. But see Maier, supranote 3, at 505 (specifically rejecting Amar’s account). Revisionism also calls into question scholarship on the move from natural rights to a more positivist approach to legal rights during the nineteenth century. Presumptions that Americans came to view the Constitution with its “bill of rights” as representing a document of the unified American people rather than a federalist document of limited national power guaranteeing reserved powers to the states would also have to be re-envisioned since, again, much of this scholarship relies on antebellum discussions of the “bill of rights.”Show More

This Article 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 the end of the nineteenth century. These references, most of which are presented here for the first time, suggest that the central revisionist claims 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.” 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 nineteenth-century Americans were not at all confused about the meaning and content of the national “Bill of Rights.”

Although antebellum Americans embraced the ten amendments as their Bill of Rights, their understanding of those amendments significantly changed between the Founding and Reconstruction. At the time of the Founding, most Americans viewed the national Bill of Rights as symbolizing a general theory of limited and enumerated federal power.14 14.See infra note 136 and accompanying text.Show More Over time, however, this federalist understanding of the Bill of Rights gave way to a more individual-liberty reading of the ten amendments.15 15.See infra note 277 and accompanying text.Show More By the time of Reconstruction, both Democrats and Republicans viewed the Bill of Rights as declaring the fundamental rights of American citizenship.16 16.See infra note 318 and accompanying text.Show More When John Bingham proposed the addition of an amendment enforcing the “Bill of Rights” against the states, his colleagues understood the proposal as an effort to enforce the personal rights listed in the 1791 amendments. To date, scholars have failed to recognize the significance of the Reconstruction-era vision of “the Bill of Rights” and the role it played in the original understanding of Section One of the Fourteenth Amendment.

* * *

This Article begins by briefly addressing the basic claims of Bill of Rights revisionists. Although not entirely uniform in their individual conclusions or theoretical approach, they share a number of common assertions. All insist that references to the ten amendments as a bill of rights were extremely rare between the time of the Founding and Reconstruction. This rarity, we are told, reflects the fact that the 1791 amendments lacked the essential characteristics of a bill of rights in late-eighteenth-century America—the amendments did not “look” like a bill of rights.17 17.See, e.g., Maier, supra note 3, at 500 (“Congress did not label the amendments it endorsed a Bill of Rights nor did they look like one to eighteenth century Americans.”); Magliocca, supra note 3, at 37 (“[O]ne reason that the ten amendments ratified by the states in 1791 were not seen as a bill of rights is that they did not match the eighteenth-century expectations of how one was supposed to look.”).Show More During the first half of the nineteenth century, revisionists claim, almost no one referred to the 1791 amendments as a bill of rights.18 18.Magliocca, supra note 3, at 5 (“[F]or more than a century after the first ten amendments were ratified, hardly anyone called them a bill of rights, let alone the Bill of Rights.”).Show More Although some referred to the 1791 amendments as having “the nature of a bill of rights” or were “equivalent to a bill of rights,” they avoided actually naming the amendments “the Bill of Rights.”19 19.Maier, supra note 3, at 502 (emphases added) (noting that such phrases were “more descriptive than [normative]”—“[t]hat is, they fell short of giving [the amendments] the name”).Show More Instead, antebellum Americans more often pointed to the Declaration of Independence as the nation’s Bill of Rights.20 20.Magliocca, supra note 3, at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (“[T]his phrase [the Bill of Rights] did not commonly mean the first ten amendments until sometime in the twentieth century. . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”).Show More Although some revisionists point to Reconstruction as the moment when Americans began to call the ten amendments a bill of rights, others insist that the term “bill of rights” remained an “abstract concept” that would not be clarified prior to the twentieth century.21 21.Douma, supra note 3, at 602.Show More Part I concludes by analyzing the empirical nature of the revisionists’ claims and the manner by which such claims can be tested.

Subsequent Parts then take a deep dive into the historical record. Part II explores the meaning of the term “bill of rights” at the time of the Founding. Understood as simply an enumeration of constraints on government power, late-eighteenth-century Americans applied the term “bill of rights” to a number of historical documents, including the Magna Charta,22 22.See, e.g., 1 Gazette U.S. (N.Y.C.), Dec. 30, 1789, at 299 (describing how guarantees of individual rights grew out of the conflict between King John and the rebel barons).Show More the English Petition of Right, the English Bill of Rights, and the states’ “Declarations of Rights.”23 23.Interestingly, late-eighteenth-century Americans did not refer to the Declaration of Independence as a bill of rights. This usage seems not to have occurred until much later, driven primarily by the rising abolitionist movement in the early decades of the nineteenth century, no earlier than 1817. See infra note 196 and accompanying text.Show More All of these otherwise distinguishable documents could be viewed as bills of rights because, according to contemporary definitions, “a bill of rights” was nothing more than a list of enumerated rights or constraints on government power. Placement was not important: there is no evidence that Founding-era Americans believed “bills of rights” needed to be at the beginning or at the end of a constitution or attached to a constitution at all. Nor was the term “bill of rights” reserved for particular kinds of rights or principles—one might criticize a bill of rights for being incomplete, but still consider the incomplete list to be a “bill of rights.”24 24.Infra note 66 and accompanying text.Show More

Part III explores antebellum legal and political rhetoric and the degree to which Americans during that period described the 1791 amendments as a “bill of rights.” Although the amendments themselves lacked an official title, late-eighteenth- and early-nineteenth-century speakers, politicians, and legal commentators repeatedly described the first ten amendments as “a bill of rights,” “the bill of rights,” “our Bill of Rights,” and the “national bill of rights.” These references are found in everything from congressional speeches to children’s schoolbooks. This common way of labeling the 1791 amendments became even more frequent in the decades prior to the Civil War. As the debate over slavery increasingly divided the country, both abolitionists and states’ rights advocates invoked the national “Bill of Rights” in support of their theories of constitutional liberty. By the time of the Civil War, presidential speeches, abolitionist newspapers, essays by critics of the national government, and congressional debates are full of references to the first ten amendments as a (or the) “bill of rights.” Although there are a few scattered references to the Declaration of Independence as a “national bill of rights,” the historical record overwhelmingly indicates that the term “bill of rights” was most commonly used in reference to the 1791 amendments.

Part IV investigates the Civil War and Reconstruction Eras, including the period coinciding with the ratification of the Fourteenth Amendment. As had their antebellum counterparts, both Republican abolitionists and states-rights Democrats repeatedly pointed to the 1791 Bill of Rights in support of their particular legal and political goals. During the Fourteenth Amendment debates, members of both parties unambiguously referred to the 1791 amendments as the Bill of Rights. When Ohio Republican John Bingham announced his intention to pass an amendment enforcing the “Bill of Rights” against the states, his colleagues in the Thirty-Ninth Congress understood Bingham to be referring to the 1791 amendments and his desire to apply those amendments against the states. Throughout the Reconstruction Congresses, members used the term “Bill of Rights” as a reference to provisions in the 1791 amendments. This practice continued from Reconstruction to the end of the nineteenth century.

The Article concludes by summarizing the historical evidence and considering the implications for future historical research on the national Bill of Rights and the original understanding of the Fourteenth Amendment. Although historians may confidently continue to presume that Reconstruction-era references to the national bill of rights were references to the enumerated rights of the 1791 amendments, it appears the public understanding of those amendments had changed between the time of the Founding and the Fourteenth Amendment. This has important implications for our understanding of the Privileges or Immunities Clause of the Fourteenth Amendment, a clause written by John Bingham, who described his efforts as an attempt to enforce the bill of rights as incorporated against the states.25 25.John Bingham, Speech on the Privileges or Immunities Clause of Section One of the Fourteenth Amendment, March 31, 1791, in 2 The Reconstruction Amendments: Essential Documents 620, 624 (Kurt T. Lash ed., 2021).Show More

  1.  See, e.g., Va. Const. art. 1 (drafted 1776, affixed to its constitution in 1830); Pa. Const. ch. I (1776); Mass. Const. pt. I (1780). ↑
  2.  For a transcription of the official copy of the 1791 amendments, including the message submitted with the original proposed twelve amendments, see The Bill of Rights: A Transcription, National Archives, https://www.archives.gov/founding-docs/bill-of-rights-transcript [https://perma.cc/5YP9-2EPP] (last visited Jan. 15, 2024). For a PDF of the actual document, see The Bill of Rights, National Archives, https://www.archives.gov/founding-docs/bill-of-rights [https://perma.cc/5K6S-4ZRD] (last visited Jan. 15, 2024). ↑
  3.  See, e.g., Randy Barnett & Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 326 (2021) (“[T]his phrase [the Bill of Rights] did not commonly refer to the first ten amendments until sometime in the twentieth century . . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”); Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 111 (2020) (“[T]he term ‘bill of rights’ was not used as a term of art for the first eight Amendments to the U.S. Constitution until well after the Civil War.”); Gerard N. Magliocca, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights 6 (2018) (“The belief that the first ten amendments are the Bill of Rights did not become dominant until the twentieth century.”); Michael J. Douma, How the First Ten Amendments Became the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 593, 609–11 (2017) (explaining that the term “Bill of Rights” was not defined as the first ten amendments prior to the late 1920s and early 1930s); Pauline Maier, The Strange History of the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 497, 506–11 (2017) (arguing that the “Bill of Rights” did not take on its current meaning as a reference to the 1791 amendments until the 1930s). ↑
  4.  Magliocca, supra note 3, at 5 (“[D]uring the nineteenth century, most people simply did not think that the country had a national bill of rights . . . .”). ↑
  5.  Id. at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (arguing that “even after the first ten amendments were added to the [Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights’”). ↑
  6.  Douma, supra note 3, at 600–01 (“[A] bill of rights was conceived of as an abstraction . . . . [I]n the early Republic, ‘bill of rights’ as a term was quite distinct from and referred to more than just the first ten amendments.”); id. at 602 (noting that prior to the twentieth century, the term “Bill of Rights” was more often used as an “abstract concept” than a reference to a specific document); Randy Barnett & Evan Bernick, The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 568–69 (2019) (first citing Magliocca, supra note 3, at 6, 90; then citing Douma, supra note 3, at 609–11; and then citing Maier, supra note 3, at 506–11) (“To begin with, recent scholarship has shown that the first eight or ten amendments to the Constitution were not commonly referred to as ‘the Bill of Rights’ until well into the twentieth century . . . . [As late as 1868,] ‘the Bill of Rights’ lacked a standard meaning.”). ↑
  7.  Douma, supra note 3, at 598. ↑
  8.  According to Randy Barnett and Evan Bernick, “[a]ttributing the post-New Deal meaning of ‘the Bill of Rights’ to the pre-Fourteenth Amendment public is anachronistic. (Although, we admit, it was an understandable mistake to have made before this recent revisionist scholarship.).” Barnett & Bernick, supra note 6, at 568. Similarly, Michael Douma insists that “anachronistic” scholarly references to the 1791 amendments as the “bill of rights” “runs through the whole sub-field of constitutional history.” Douma, supra note 3, at 596. ↑
  9.  A full list would fill libraries. Among some of the more influential works that would have to be revised or reevaluated would include 1 Joseph Story, Commentaries on the Constitution 276 (1st ed. 1833); Thomas Cooley, The General Principles of Constitutional Law in the United States 199–204 (1880); Edward Dumbauld, The Bill of Rights and What It Means Today vii (1957); Learned Hand, The Bill of Rights 1–2 (1958); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1123–24 (1971); Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 165–67 (1992); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 1 (1986); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction

    xi (1998); Leonard W. Levy, Origins of the Bill of Rights

    1

    (1999); Carol Berkin, The Bill of Rights: The Fight to Secure America’s Liberties 1–3 (2015). ↑

  10.  See, e.g., Levy, supra note 9, at 1. ↑
  11.  See, e.g., Kent Curtis, supra note 9, at 51–54; Amar, supra note 9, at 161–62. ↑
  12.  See, e.g., 2 G. Edward White, Law in American History: From Reconstruction Through the 1920s, at
    10

    (2016). ↑

  13.  See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 754 (2010); Adamson v. California, 332 U.S. 46, 70–72, 92–110 (1947) (Black, J., dissenting); McDonald, 561 U.S. at 828 (Thomas, J., concurring in part and concurring in the judgment) (discussing the history of the Fourteenth Amendment, including Justice Black’s historical appendix in Adamson). Bill of Rights revisionism, if correct, also would require rethinking a number of additional common assumptions in legal historical scholarship, including the presumed shift from a federalist reading of the 1791 “bill of rights” to a more libertarian understanding at the time of Reconstruction. See Amar, supra note 9, at 190, 284. But see Maier, supra note 3, at 505 (specifically rejecting Amar’s account). Revisionism also calls into question scholarship on the move from natural rights to a more positivist approach to legal rights during the nineteenth century. Presumptions that Americans came to view the Constitution with its “bill of rights” as representing a document of the unified American people rather than a federalist document of limited national power guaranteeing reserved powers to the states would also have to be re-envisioned since, again, much of this scholarship relies on antebellum discussions of the “bill of rights.” ↑
  14.  See infra note 136 and accompanying text. ↑
  15.  See infra note 277 and accompanying text. ↑
  16.  See infra note 318 and accompanying text. ↑
  17.  See, e.g., Maier, supra note 3, at 500 (“Congress did not label the amendments it endorsed a Bill of Rights nor did they look like one to eighteenth century Americans.”); Magliocca, supra note 3, at 37 (“[O]ne reason that the ten amendments ratified by the states in 1791 were not seen as a bill of rights is that they did not match the eighteenth-century expectations of how one was supposed to look.”). ↑
  18.  Magliocca, supra note 3, at 5 (“[F]or more than a century after the first ten amendments were ratified, hardly anyone called them a bill of rights, let alone the Bill of Rights.”). ↑
  19.  Maier, supra note 3, at 502 (emphases added) (noting that such phrases were “more descriptive than [normative]”—“[t]hat is, they fell short of giving [the amendments] the name”). ↑
  20.  Magliocca, supra note 3, at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (“[T]his phrase [the Bill of Rights] did not commonly mean the first ten amendments until sometime in the twentieth century. . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”). ↑
  21.  Douma, supra note 3, at 602. ↑
  22.  See, e.g., 1 Gazette U.S. (N.Y.C.), Dec. 30, 1789, at 299 (describing how guarantees of individual rights grew out of the conflict between King John and the rebel barons). ↑
  23.  Interestingly, late-eighteenth-century Americans did not refer to the Declaration of Independence as a bill of rights. This usage seems not to have occurred until much later, driven primarily by the rising abolitionist movement in the early decades of the nineteenth century, no earlier than 1817. See infra note 196 and accompanying text. ↑
  24.  Infra note 66 and accompanying text. ↑

  25.  John Bingham, Speech on the Privileges or Immunities Clause of Section One of the Fourteenth Amendment, March 31, 1791, in 2 The Reconstruction Amendments: Essential Documents 620, 624 (Kurt T. Lash ed., 2021). ↑

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