On September 25, 1789, the United States Congress proposed twelve amendments to the states for ratification. A little over two years later, on December 15, 1791, Virginia became the 11th state to ratify ten of those proposals, thus making them part of the Constitution. In the immediate years that followed, every December 15, Americans celebrated the passage of the Bill of Rights by doing … not really much of anything.

　　Not even in 1891, the centennial anniversary, were there any celebrations. In fact, for the first 100 years, those first ten amendments were part of the Constitution, very few people referred to them as a bill of rights, much less the Bill of Rights. They understood that much of the language of the amendments was similar to state bills of rights and much of the English tradition. But those state bills of rights were generally used as community-defining preambles. Specific rights tended to be scattered throughout the text framing the government. The codicil approach, listing the amendments at the end of the document, was new and therefore looked more like an appendix to the Constitution than a bill of rights to most Americans. Accordingly, they celebrated the Constitution as one document, not two.

　　Occasionally in the nineteenth century, someone would say that the first ten amendments were like a bill of rights, or in the nature of a bill of rights, or rooted in the bill-of-rights tradition. But the idea that the first ten amendments constituted Americans’ Bill of Rights, and that its provisions could be treated like a list of rights enforceable by courts was completely alien to their minds.

　　Things began to change in the twentieth century. The Supreme Court slowly started to apply some of the judicial safeguards of the sixth, seventh, and eighth amendments to state procedures. At about the same time, presidents William McKinley and Theodore Roosevelt spoke of the rights in the amendments as a Bill of Rights that needed to be shared with the world, particularly the Philippines; this was largely a rhetorical move to help justify their foreign policy goals. From then, though, the idea that those first ten amendments could be thought of as the American Bill of Rights gradually took hold. To bolster it, a historical narrative of its development as an Antifederalist correction to the Constitution was constructed. And that new history became an important means of preparing the American mind to deal with the domestic and international crises of the 1930s. Americans and all decent peoples, it was felt, could not expect to have their liberty protected without reference to a concrete list of rights. 

　　The Bill of Rights narrative was finally crystalized under the presidency of Franklin Delano Roosevelt as a progressive, theoretical backdrop to his New Deal policies and to mobilize support for World War II. His New Deal vision rested upon an assumption that the federal government has a contractual obligation to protect the rights of US citizens, and it was easier to justify this with the language of the amendments when disconnected from the main body of the text—when they were treated as provisions of a separate text called the Bill of Rights. FDR frequently spoke of individual liberty in his famous Fireside Chats on national radio. Famously, his 1941 Message to Congress articulated Four Freedoms that Americans cherish. As for the War, FDR used bill-of-rights language to justify America’s duty to do what we can to help preserve the rights of our allies against tyrannies that revere force rather than honor liberty. Elevating the first ten amendments to Bill-of-Rights status was symbolically important to defeating fascism.

　　The War, no doubt, gave FDR’s elevation of the freedoms of the first ten amendments a rhetorical appeal, emphasizing a Bill-of-Rights Constitution rather than a Separation-of-Powers Constitution cleared the way for the sorts of policies implicit in FDR progressive vision of American public policy. This explains much of the ambition of the early New Deal legislation that largely ignored the traditional limitations on congressional authority, such as the non-delegation doctrine and federalism. The Court struck down the cornerstone of FDR’s New Deal, because it violated these institutional limitations. In response, FDR proposed packing the Court with his own nominees. Some of FDR’s opponents turned to the idea of a national bill of rights to push back against his Court-packing plan. This may have been an attempt to use some of FDR’s previous arguments against him, but it might have also signaled to the public that those arguments rested upon a sound reading of the Constitution—that the Founding generation really did give us a second fundamental text called the Bill of Rights that protects individual liberty. Few at the time seemed to notice that this reading was being pushed to help Americans feel better about increases in federal authority.

　　Always the master politician, FDR saw an opportunity to reshape the American imagination about the American Founding. He planned a big celebration of the Bill of Rights for 1941, the 150th anniversary of the amendments’ ratification. In preparation, in 1939, he urged Massachusetts, Connecticut, and Georgia—the three original states that did not ratify the ten amendments—to now do so as a symbolic act of national unity and affirmation. They complied, and thereby reinforced the new narrative. The path was laid for the inauguration of a new national holiday. 

　　In 1941, FDR declared December 15 the first Bill of Rights Day. His official Proclamation refers to the first ten amendments as “the great American charter of personal liberty and human dignity.” He goes on to refer to the ten amendments as a charter several times, always using a singular pronoun when discussing the amendments. Nowhere does he offer a history of the amendments. Nor does he refer to the amendments as institutional limitations. Instead, he speaks of the Charter as a community-defining set of first principles—much the way the Declaration of Independence has always been understood. Not only does FDR offer the Bill of Rights as the reason why Americans have enjoyed freedom of religion, freedom of speech, and freedom of press, he also insists it is the reason we have “the free schools, the free churches, the labor unions, the religious and educational and civic organizations of all kinds which, without the guarantee of the Bill of Rights, could never have existed.” He also indicates that the timing of America’s celebration is important because these basic rights are being denied to people of other countries. The Proclamation thus points to the importance of the Bill of Rights for the New Deal and victory over despotic powers in World War II. No doubt much of the attention given to FDR’s Bill of Rights Day was the fact that it, by coincidence, came just a week after the atrocious attack at Pearl Harbor.

　　Vigorously defending particular liberties is good. However, the Constitution’s design, structure, and logic are intended to provide a government that not only governs the people but also governs itself.

　　As part of Bill of Rights Day, FDR’s administration had prepared an extended radio program called We Hold These Truths. The program aired on all four major networks, and it is estimated that 63 million Americans tuned in, setting a new audience-size record for radio. It was narrated by some of Hollywood’s biggest names, including Lionel Barrymore, Jimmy Stewart, and Orson Welles. As a wartime propaganda, the program sought to position the Bill of Rights against the fascist threat of the Axis powers. In a short speech featured at the end of the broadcast, for instance, FDR himself contrasts Hitler’s despotism with the freedom secured by the amendments.

　　In addition to this major broadcast, FDR’s administration also commissioned Howard Chandler Christy to paint an artistic representation of the Bill of Rights. Christy provided an oil-on-canvas representation of Lady Liberty holding a torch in her right hand while an American flag blows in the wind above her head, creating something like a halo. She stands in front of a large book. The right-hand page reads in large letters “Bill of Rights.” On the left are listed the freedoms associated with the First Amendment: Freedom of Speech, Freedom of Assembly, Freedom of Religion, and Freedom of the Press. When FDR signed his Bill of Rights Day Proclamation, he did so with Christy’s painting sitting next to him. Though not commissioned to do so, Norman Rockwell was similarly inspired by FDR’s speeches—particularly his 1941 Annual Message to Congress—and contributed his own depiction of “The Four Freedoms.” Christy and Rockwell’s paintings are compelling representations of FDR’s efforts to strengthen popular attachment to the Bill of Rights.

　　FDR’s effort to cement a new understanding of the first ten amendments was successful. My students are always shocked when they encounter Publius’s argument against bills or rights in republics in Federalist #84. They may not have listened to the radio broadcast of “We Hold These Truths” or seen Christy’s painting. They may not even know about Bill of Rights Day. But they know the story they have been told. Rarely can they tell me anything about the original articles of the Constitution before we study them, but they can almost always list a handful of rights from the amendments.

　　This leads to a major question about the long-term, unintended consequences of thinking our Constitution contains a document within it called the Bill of Rights. James Wilson, Alexander Hamilton, and others thought that such a document could have an adverse effect on Americans’ understanding of constitutional government in a republic. Indeed, it seems quite plausible that FDR recognized that he would have more luck overcoming constitutional challenges to his legislation if people cared less about institutional limitations and more about individual rights. Is there something dangerous about Americans thinking that the government has the authority to act in a multitude of undefined ways so long as well-defined individual rights are not violated?

　　The answer to that question depends in part on the extent to which the Constitution has an internal logic that not only frames the government but also shapes our understanding of the political order. Publius said in Federalist #84 that the Constitution is a bill of rights. Might it also be true that the Constitution is a civics education? If so, then the inclusion of a Bill of Rights within the text may confuse the education that the Constitution is meant to provide. By granting institutional powers, the Constitution limits what government can do. By declaring rights in the abstract, we may inadvertently create the opposite perspective, that the government is only limited by individual rights. While in practice these two views might be able to coexist—it is not clear that most Americans can see how they fit together. Most people find it temptingly reassuring to identify their rights and then tell the government “Hands Off!” And turning to the Court to defend these liberties is likewise tempting. We should not be surprised therefore that the decades following the institution of an annual celebration of the Bill of Rights have seen vast growth in the role of the judiciary in American politics, nearly all of which has to do with the protection of constitutional rights.

　　To be clear, vigorously defending particular liberties is good. What is important to remember, however, is that the Constitution’s design, structure, and logic are intended to provide a government that not only governs the people but also governs itself. Separation of powers, federalism, and the enumeration of powers were all intended to limit the authority of the federal government and to motivate it to check itself—therein lies the protection of liberty. The first ten amendments were intended and understood to contribute to the institutional structure of the three branches of government and to clarify certain necessary principles of republican government under a written constitution. For 150 years, most Americans understood that we have the Constitution to thank for our liberty. This is the right view, because it is true. The first ten amendments contribute to the protection of our liberty as part of the Constitution, not as a separate document.

　　Can we relearn what all once seemed to know? We do have a Bill of Rights in America, but it is composed of far more than just the first ten amendments. Our Bill of Rights is the Declaration of Independence together with the entire Constitution. Nowhere are the principles of American liberty stated more clearly than in the Declaration. The Constitution provides us with a framework of institutions designed to provide decent government that honors liberty for ourselves and our posterity. The first ten amendments, along with the seventeen that follow it (one of which was part of the original twelve proposed to the states in 1789) are part of that Constitution. They are good and should be celebrated, but not as an independent document. Rather, they make better the institutions designed to govern the people and, by also governing themselves, to protect the people’s liberty.