The Bill of Rights as a Term of Art

This Article argues that the use of the “Bill of Rights” to describe the first set of constitutional amendments emerged long after the Founding as a justification for expanding federal power at home and abroad. In making that claim, I challenge two common misconceptions about the Bill of Rights. One is that the first set of amendments was known by that name from the start. This is not true. James Madison never said that what was ratified in 1791 was a bill of rights, and that label was not widely used for those provisions until after 1900. The second fallacy is that the Bill of Rights was a term of art designed to limit government through judicial review. While this is the modern understanding of the Bill of Rights, that idea did not become part of constitutional grammar until World War II.