Kurt T. Lash

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 These references vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth-century Americans were not at all confused about the meaning and content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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