Politics and Public Opinion, Law and the Constitution

Sorry, Ezra Klein: The Founders did refer to a bill of rights

Image Credit: Shutterstock

Image Credit: Shutterstock

When a self-proclaimed wonk decides to write about something, he talks to someone on the phone and then provides a transcript of his phone conversation.

Over the weekend, sometime MSNBC host Ezra Klein decided to write about American history, so he quoted a liberal law professor as proclaiming the following: “In a nutshell, almost everything ordinary Americans think they know about the Bill of Rights, including the phrase ‘Bill of Rights,’ comes from the Reconstruction period. Not once did the Founders refer to these early amendments as a bill of rights.”

Fortunately, we have a copy of the Federalist Papers here at the American Enterprise Institute for Public Policy Research that allowed me to confirm this claim and rejoice in the glory of this beautiful and little-known historical factoid. But then!

My suspicions were first aroused when we discovered that someone (An Americans for Prosperity staffer? An NRA lobbyist?) had included the term “bill of rights” in the index. But it didn’t stop there! He also wrote an entire essay in the style of Alexander Hamilton’s contributions, cleverly disguising it as Number 84. It contains blatant falsifications such as:

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. (..) And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. (..) The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.

The caps are, we are made to believe, in the original. It is ludicrous to believe that Alexander Hamilton would go out of his way to mock Ezra Klein and Akhil Reed Amar, the Sterling professor of law and political science at Yale University, so I will be on the look-out for a new copy of The Federalist, one that hasn’t been rewritten and distorted by Tea Party radicals. For the historical evidence overwhelmingly supports the Sterling professor’s claims.

Consider, for example, that Thomas Jefferson did support enumerating certain rights in constitutional amendments. He obviously lacked the terminology to express this sentiment at the time of the adoption of the Constitution. Only in 1871 would he write the following to James Madison on the occasion of the latter’s 120th birthday: “Let me add that a bill of rights is what the people are entitled to against every government on Earth, general or particular; and what no just government should refuse or rest on inference.”

6 thoughts on “Sorry, Ezra Klein: The Founders did refer to a bill of rights

  1. Thomas Jefferson died in 1826, which must have made it REALLY difficult to pen letters in 1871…

    The rest of the article is equally confusing and questionable. I can’t figure out whether Veuger is arguing that the 1st 10 Amendments were ever called The Bill of Rights. That is, whether he agrees or disagrees with Klein.

    Regardless of their packaging, the 10 Amendments added en bloc in 1791 were essential for passage of the Constitution and were always part of the document ratified by the States. So I’m also confused by any attempt to suggest that the Amendments are somehow of lesser importance than somebody’s favorite Article in the main body of the Constitution.

    • Spot on. The Constitution wouldn’t have been passed without the promise that the Bill of Rights was to follow.

      Indeed, the initial proposed Bill of Rights had twelve amendments.

  2. I agree that this is a poorly written post. I think Mr. Veuger is trying to be clever and sarcastic in how he points out that the bill of rights has always been known as the bill of rights and that Ezra Klein is guilty of sloppy/incorrect reporting. Unfortunately his own post is poorly written and obscures the point.

  3. The Bill of Rights are not necessary. Most who signed the Constitution realized that a BORs was not necessary because Art. 1, Sect. 8 lists ALL of the Enumerated Powers of the Congress, so, if Congress didn’t have the power the power (right) was still retained by the People. See, also, the Declar. of Indep. Therefore, were it not demanded by many states during their ratification discussions, there would not have been a Bill of Rights – and we’d still have the same Constitution today – were it not for proponents of a ” Living Constitution” and “stare decisis”.

  4. This whole discussion is pretty lame.

    Anyone here know how much legitimate legislative power the executive branch has?

    So here we are talking about the bill of rights even as the nitwits are discussing legal theory over which they have zero authority. I’m talking about the CIA confirmations and the drone killings.

    Any first graders out there? (I don’t trust math majors or constitutional lawyers to get this right.)

    How much legislative power is left over for the executive branch if….

    All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

    I MIGHT have to explain that the executive branch isn’t the senate or the house of representatives, but once that’s down pat, the rest is pretty doggone easy.

    For a first grader.

  5. Did I forget to mention that’s the first sentence following the Preamble?


    There’s a lot more I’d like to say about how Congress let the Executive branch get so terribly out of control that the Constitution is barely recognizable as the supreme law of the land, but I expect I’ll have to find a blog with a bunch of first graders in it.

    Stateless? What’s a pirate?
    Captures? Who makes the rules for captures on land or water?
    Or violations of international laws?

    Those aren’t debating points. If the constitution was a religious text those would be commandments.

    There is a LOT more I’d like to talk about on this subject. And I’m happy to even be able to say this much.

    Thank you for honoring the 1st of the 10 Amendments. AEI.

    Great web site.


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