What is now known as the Bill of Rights was ratified this past Friday in 1791. But the Bill of Rights wasn’t always the “Icon in Use” that it is today.[1] In the beginning, the Bill of Rights was seldom invoked and thought to have little actual power.[2] It was applied only to the federal government and not to the actions of individual states.[3]

During the Reconstruction Era, the federal government sought means to guarantee certain fundamental rights to citizens in the resistant southern states. The passage of the 14th amendment in 1868 allowed the courts to incorporate provisions of the Bill of Rights against the states.[4]

However, it was not until the 1930s that the Bill of Rights became a tool for civil rights advocates and “the Supreme Court began in earnest the process of incorporating the Bill of Rights against the States via the Fourteenth amendment.”[5]

Since then, the Bill of Rights has routinely continued its rise in legal prominence and its profound impact on our country. Happy Belated Birthday to the Bill of Rights.

[1] See Michael J. Douma, How the First Ten Amendments Became the Bill of Rights, 15 Geo JL & Pub Pol’y 593 [2017].

[2] Id. at 595.

[3] See Jason Mazzone, The Bill of Rights in the Early State Courts, 92 Minn L Rev 1 [2007]; see also Barron v City of Baltimore, 32 US 243, 8 L Ed 672 [1833].

[4] Mazzone, 92 Minn L Rev at 2.

[5] Douma,  15 Geo JL & Pub Pol’y at 596 citing Lael Weinberger, Enforcing the Bill of Rights in the United States, in Jurisprudence of Liberty 103 (Suri Ratnapala & Gabriël A. Moens eds., 2d ed. 2011).