The Neb Of Rights Equally A Continuity Tender

Next Fri is Bill of Rights Day, in addition to inward advance of that occasion I desire to hash out an of import percentage of our Bill of Rights. As David Strauss explained inward an fantabulous article that marked the bicentennial of ratification inward 1991, a nib of rights tin forcefulness out serve many purposes. One that Strauss did non address that is percentage of my book is that the Bill of Rights is a "continuity tender," which my co-blogger Richard Primus defined inward a recent article equally "not a regulation amongst practical consequences, but a ritual disputation amongst which practitioners position themselves amongst a history from which they descend."

The designation of the offset 10 amendments equally the Bill of Rights does non perfectly agree this definition, equally at that topographic point are only about practical consequences to the inclusion or exclusion of items from that particular list. For the near part, though, the Bill of Rights is in addition to has been used to legitimate exercises of constitutional authorisation yesteryear symbolically connecting those acts to the past. Why does that work? Part of the answer is that bills of rights accept been a crucial percentage of Anglo-American police line since the Glorious Revolution inward 1688. Another percentage of the answer is that what nosotros telephone yell upwards the Bill of Rights came from the Founding Fathers (more or less). This gives the offset 10 amendments a unique aura.

Nevertheless, references to the Bill of Rights routinely contradict the principal schools of constitutional interpretation, at to the lowest degree inward spirit. The master copy agreement of the offset 10 amendments is that they were non a nib of rights--Madison in addition to the First Congress, for example, did non watch them one. Originalists, however, routinely telephone yell upwards these amendments the Bill of Rights. On the other hands, living constitutionalists who usually create non privilege the Founding create in addition to therefore when they depict solely what was ratified inward 1791 equally the Bill of Rights. Thus, the Bill of Rights is a tangled continuity tender.