Amendments of the Bill of Rights:

One often hears that no Amendment has ever amended the Bill of Rights. (Let’s set aside whether various restraints on state power amend the Tenth Amendment, and let’s set aside the many times that the Supreme Court has in effect amended the Bill of Rights.)

It turns out, though, that this probably isn’t quite true. Two constitutional amendments have indeed likely amended two parts of the Fifth Amendment:

1. In Dred Scott v. Sandford (1857), the Supreme Court struck down a federal statute that declared many territories to be free, so that slaves who were taken there by their owners were liberated. The statute, the Court held, violated the Due Process Clause by wrongfully depriving owners of their property. It seems pretty clear that nationwide abolition would have likewise been a violation of the Due Process Clause under Dred Scott. The Thirteenth Amendment in effect modified the Fifth Amendment to make clear that slaveowners could indeed be deprived of their property in slaves. (Of course, one could argue that this didn’t really amend the Bill of Rights as it should have been understood, but only as the Court misunderstood it — but the backers of most proposed amendments of the Bill of Rights would say the same about their proposals.)

2. Even if depriving slaveowners of their property was constitutional, it might well have required the government to pay compensation. The Supreme Court had never passed on the matter, but as I understand it many people of that era assumed that compensation would be required, and some statutory emancipation schemes did indeed provide for compensation. Section 4 of the Fourteenth Amendment provides that “neither the United States nor any state shall assume or pay . . . any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” This of course does more than reject a right to compensation — it actually prohibits compensation even as a matter of voluntary legislative judgment. Still, it probably did in some measure alter the then-existing understanding of the Just Compensation Clause.

3. The same section of the Fourteenth Amendment also modifies the Free Speech Clause, by providing that “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” No, I’m just joking about that, though I’ve seen some constitutional theories that make about as much sense as that.

I don’t want to suggest that these items are especially helpful to modern debates: I think the “it’s inherently wrong to amend the Bill of Rights” arguments are unsound, but while these examples do in some small measure help show that sometimes the Bill of Rights need changing, I don’t think they’re really that relevant. But I just think they might be interesting historical tidbits for those who like this sort of thing.