Bills, Quills and Stills offers something for everyone, but most of all the serious scholar

BY JOHN OTROMPKE

ABA Releases a New and Heavily- Illustrated Popular History of the Bill of Rights

Late in the first chapter of Bob McWhirter’s colossal and profuse new book, Bills, Quills, and Stills: An Illustrated, Annotated and Illuminated History of the Bill of Rights, the author makes a fascinating point about the interplay of the two main clauses of the First Amendment.

Pointing to the emergence of the internet, he says, “By any measure, we have more freedom of speech and religion today.” Continuing, he adds, ‘“The media’ seeks
to manipulate us every day, to influence who we vote for to the toothpaste we buy...We need something to help see the lines between the messages we get. That something can be traditional religion, a code of ethics, a philosophy, or principles by which to live. In this sense, even an atheist can have ‘religion.’”

After having read to the conclusion of McWhirter’s opus, a skeptic might propose an addition to that list: what about history?

In fact, McWhirter’s tome manages to combine a thorough and detailed history
of the origins of most of the Bill of Rights with enough scintillating images that almost anyone would want to pick it up, at least for a few minutes- a client in the waiting room of a law office, a junior high school student, teacher or judge- and it also contains such a thorough wealth of scholarly references that it will be of use to the scholar and the practicing lawyer as well.

McWhirter, a supervising attorney at a teaching law firm operated by Arizona State University, as well as an author and experienced litigator, got the idea for the book years ago, when he was assigned to give a presentation to the Arizona State Police and stumbled upon a 1937 reference by Nelson B. Lasson called ‘The History and Development of the Fourth Amendment to the United States Constitution.’

“I was going to write about the history of the criminal law amendments, such as the Fourth, Fifth, Sixth, and Eighth, which I actually use every day, and it became natural to write a book on the history of the Bill of Rights,” said McWhirter, a criminal lawyer who has also authored two books on immigration law.

One of the most interesting insights of the book is that Alexander Hamilton and other federalists believed the Bill of Rights was unnecessary and redundant: why would a federal government of limited powers (such interstate commerce, the suppression of piracy, etc.) ever try to restrict speech or the right to bear arms?

But those who drafted the Constitution knew that Anglo-Americans had taken
great pains over several centuries of English history to acquire a detailed legal history
in which certain rights were preserved, and Madison and others were intent on including them explicitly in the document.

While the first chapter of the book drags a little (sometimes it seems McWhirter is giving us a history of western civilization rather than the First Amendment), by the time he gets to the Second Amendment, the author more than makes up for it with a compelling recapitulation of English history, a wealth of scholarly footnotes, and an inexhaustible fount of imagery.


One is left with amazement at the reflection that some of these concepts (due process, for example) have survived the American Revolution and Civil War, and innumerable civil wars in England, and yet some laws remain unchanged and intact.

Sometimes McWhirter’s footnotes even touch on a topic that seems to compel literary research of its own, such as his argument, all too brief, that a proper understanding of the Fifth Amendment’s takings clause compels reparations for slavery, or that the concept of fundamental law is more rooted in natural law than English history, for example. (“Fundamental law is not just contractual; natural law is that which creates the greatest good,” he tells us, parsing the language of the Declaration of Independence as drafted by Jefferson and then edited by Franklin). While this volume may be too general to focus on a thorough development of such controversies, the serious scholar will find more than enough here to spark the idea for many a thesis.

That’s not to say that the book is flawless. The images can sometimes be distracting, and combined with the footnotes; they usually take up more than half the page. One may question some of the author’s well-established truisms; for example, the author quotes Pericles in the First Amendment chapter to tell us that “[H]appiness...[is] the fruit of freedom and freedom of valor,” but the history so expertly recounted in the rest of the book leads one to wonder if it is not wealth that leads to happiness, while bravery, at least for many of the English personages described by McWhirter, will only get you sent to jail.

Also curiously omitted was a history of the due process clause, at least 800 years old this summer with the recent anniversary of Magna Carta. The book concludes with a brief discussion of the Civil War Amendments (13th, 14th and 15th), which may have been a perfect place to discuss this seemingly all-encompassing concept of due process. But maybe McWhirter is saving such a discussion for a forthcoming volume (his next book, he tells us, will deal exclusively with the Civil War Amendments).

“I consider myself an originalist, but the intent of the framers of the13th, 14th
and 15th Amendments was very broad,” he says. “A lot of people say the framers never intended the constitution to do this, that, or the other. For example, maybe James Madison didn’t intend for you to pay federal income tax, but the framers of the 16th Amendment certainly did.”

All of that said, Bills, Quills and Stills remains one of the most physically gorgeous books ever published by the ABA. For schoolteachers, it is a natural go-to text; for the casual browser, its images and wit will be irresistible; and for serious readers, it is so well researched and annotated that it may find an eternal and irreplaceable slot on the shelves of your libraries or law office. 􏰁