Magliocca - The heart of the Constitution: how the Bill of Rights became the Bill of Rights

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Library of Congress Cataloging-in-Publication Data

Names: Magliocca, Gerard N., author.

Title: The heart of the Constitution : how the Bill of Rights became the Bill

of Rights / Gerard N. Magliocca.

Description: Oxford [UK] ; New York : Oxford University Press, 2018.

Identifiers: LCCN 2017015633 | ISBN 9780190271602 (hardback) |

ISBN 9780190271626 (epub)

Subjects: LCSH: United States. Constitution. 1st-10th Amendments. |

Civil rightsUnited StatesHistory | Constitutional historyUnited States. |

BISAC: LAW / Legal History. | HISTORY / General.

Classification: LCC KF4749 .M325 2018 | DDC 342.7302/9dc23

LC record available at https://lccn.loc.gov/2017015633

For Avika

Our Constitution, unlike most modern ones, does not contain a formal declaration or bill of rights.

Justice Samuel Miller, 1880

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This book began in an email exchange with Pauline Maier, the celebrated American historian. In 2012, I was writing a biography of Congressman John Bingham when a colleague informed me that Professor Maier was doing research on the Bill of Rights and wanted to learn more about Binghams view of those amendments as he drafted Section One of the Fourteenth Amendment to the Constitution. Though we had never met, she was gracious when I reached out and we began corresponding. From her I learned the startling fact that the first ten constitutional amendments were not commonly described as the Bill of Rights until long after they were ratified. We mused about when the usage assumed its modern form, and curiosity got the better of me. I found Franklin D. Roosevelts forgotten speeches discussing the Bill of Rights during the New Deal and World War Two. I sent Professor Maier a draft paper summarizing my research, and she replied with thoughtful comments. Sadly, Professor Maier passed away in 2013. My first thought upon hearing the news was that it was such a shame that she would not get to follow her groundbreaking books about the Declaration of Independence and the ratification of the Constitution with one on the Bill of Rights. About a year later, I decided that I should tell that story. What you are about to read is undoubtedly different from what Professor Maier would have written, but I hope that this book lives up to the spirit of the generous scholar who inspired me.

Let me begin by thanking David McBride, Kathleen Weaver, Claire Sibley, Emma Clements, and everyone at Oxford University Press for their assistance and confidence. I am grateful to Carlo Andreani, Brian Kalt, Carlton Larson, Gerard Magliocca Sr., David Orentlicher, Tom Shakow, Rena Stoeber, Mark Tushnet, and Victoria Woeste for reading drafts and offering comments that improved the final product. A Legal History Workshop hosted by the American Bar Foundation (ABF) provided me with feedback at a crucial juncture, and thus I am indebted to everyone who attended that roundtable. The ABF workshop was on a paper that was later published in The Notre Dame Law Review, and I want to salute the student editors of Volume 92 who allowed me to use parts of The Bill of Rights as a Term of Art here and did significant work in checking my citations and quotations for accuracy. Writing any book would be impossible without the support of my faculty colleagues at the Indiana University Robert H. McKinney School of Law, who give me a terrific professional home, and the love of my wife, Preeti Sivasankar, who is at the heart of everything important to me.

Finally, this is my first book since becoming a parent. I cannot say how that experience influenced my writing, but I can say that this project will always bring back fond memories of my daughters early years. I was with her on paternity leave when I put together the outline and wrote the book as she learned to walk, talk, and think. Along the way she realized that the book would be dedicated to her and began referring to this as my book. I cannot wait for the day when Avika can read her book.