Power  /  Explainer

The Reinvention of the Bill of Rights

The New Deal-era creation of “Bill of Rights Day” obscures the real nature and guardrails of American liberty.

Occasionally in the nineteenth century, someone would say that the first ten amendments were like a bill of rights, or in the nature of a bill of rights, or rooted in the bill-of-rights tradition. But the idea that the first ten amendments constituted Americans’ Bill of Rights, and that its provisions could be treated like a list of rights enforceable by courts was completely alien to their minds.

Things began to change in the twentieth century. The Supreme Court slowly started to apply some of the judicial safeguards of the sixth, seventh, and eighth amendments to state procedures. At about the same time, presidents William McKinley and Theodore Roosevelt spoke of the rights in the amendments as a Bill of Rights that needed to be shared with the world, particularly the Philippines; this was largely a rhetorical move to help justify their foreign policy goals. From then, though, the idea that those first ten amendments could be thought of as the American Bill of Rights gradually took hold. To bolster it, a historical narrative of its development as an Antifederalist correction to the Constitution was constructed. And that new history became an important means of preparing the American mind to deal with the domestic and international crises of the 1930s. Americans and all decent peoples, it was felt, could not expect to have their liberty protected without reference to a concrete list of rights. 

The Bill of Rights narrative was finally crystalized under the presidency of Franklin Delano Roosevelt as a progressive, theoretical backdrop to his New Deal policies and to mobilize support for World War II. His New Deal vision rested upon an assumption that the federal government has a contractual obligation to protect the rights of US citizens, and it was easier to justify this with the language of the amendments when disconnected from the main body of the text—when they were treated as provisions of a separate text called the Bill of Rights. FDR frequently spoke of individual liberty in his famous Fireside Chats on national radio. Famously, his 1941 Message to Congress articulated Four Freedoms that Americans cherish. As for the War, FDR used bill-of-rights language to justify America’s duty to do what we can to help preserve the rights of our allies against tyrannies that revere force rather than honor liberty. Elevating the first ten amendments to Bill-of-Rights status was symbolically important to defeating fascism.