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.
Gerard N. Magliocca,
The Bill of Rights as a Term of Art,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss1/5