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Monday, January 04, 2021

Kurt Lash on the Bill of Rights

Professor Kurt Lash has posted a new paper entitled "The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)." I disagree with most of Professor Lash's conclusions (I'm one of the revisionists), but his paper is a gallant effort that anyone interested in the topic should read. In due course, I will write up a formal reply, though I suspect that will not happen until life gets back to normal. Here is the abstract of Professor Lash's paper:

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. 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” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This essay 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 Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments 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.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content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 (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments. 

Let the debate begin!

Posted by Gerard Magliocca on January 4, 2021 at 08:05 PM | Permalink


Stevens' dissent in Heller is laughable. In fact, it was that dissent and one of his decisions that made lost any real faith in SCOTUS as any type of learned or judicial body.

Posted by: thegreatdisappointment | Jan 5, 2021 4:03:52 PM

While the author was in the process of writing a book on the Bill of Rights, he raised various points about the terminology and so forth on another blog. At the time, doing limited research (without a full access to all materials), I found very things to dispute. OTOH, it is unclear how much difference our disagreements made on some level

The debate, subject to long articles of the nature cited with details disputed by scholars, underlines to me a basic problem with originalism. The details here are in dispute and how much it even matters is as well. Still, along the way, some interesting things are covered. So, I guess there is some use in the whole thing as an academic endeavor.

Posted by: Joe | Jan 5, 2021 3:49:11 PM

The question is, when did they transform from limitations on the federal government that could be violated by state and local governments, to individual [bill of] rights (limitations of governments at all levels)--was it immediately after the end of the civil war (Slaughterhouse dissent), or not until the end of WWI (Gitlow v. New York).

Or did they never turn into individual rights (Stevens' dissent in Heller)?

Posted by: Decoding Anti-incorporation | Jan 5, 2021 1:18:24 AM

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