Prominent critics of the Constitution drafted in Philadelphia in 1787 objected to its lack of a bill of rights. Alexander Hamilton’s answer in Federalist no. 84 was that a bill of rights was not only unnecessary but dangerous, since it would “afford a colorable pretext to claim more [powers] than were granted” in the Constitution. Conventional wisdom is that the Federalists relented and passed a bill of rights in the first legislative session to placate critics of the proposed Constitution. As Magliocca demonstrates in The Heart of the Constitution, however, “It turns out that for more than a century after the first ten amendments were ratified, hardly anyone called them a bill of rights, let alone the Bill of Rights” (5).
The first ten amendments did not look like other eighteenth-century bills of rights. Bills or declarations of rights written during the revolutionary period contained broad philosophical claims about...