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Federalist 84 Hamilton Opposes a Bill of Rights for Good Reason
Constitution.org ^ | 1788 | Alexander Hamilton

Posted on 07/30/2009 5:02:27 AM PDT by Loud Mime

We now see people clamoring for their right of health care, their right of same-sex marriage, their right to reveal information that will damage national security and so on. None of these rights are listed in our first ten amendments, yet the claims continue unheeded. Such claims were forecasted by several of the founding fathers; Alexander Hamilton penned his thoughts on the dangers of a Bill of Rights in Federalist 84.

What follows here is a small section of the essay. Prior to this section he sets a foundation for his argument that is worthy of serious study.

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”

The entire essay is HERE.

I have often wondered what would have happened if the founders had listed a set of laws defining the limits of government without calling it a bill of rights. Perhaps a section on rights and another on limitations would have worked? After all, the term "bill of rights" is a reference point made by people; it is not an expressed term in the Constitution.

Here is a larger section, to give some context:

“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. 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 several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.


TOPICS: Constitution/Conservatism; Government; Philosophy
KEYWORDS: constitution; federalist; federalistpapers; lping; rights
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To: Loud Mime; bamahead

There should have been term limits written into the Constitution.


21 posted on 07/30/2009 5:57:42 AM PDT by Pistolshot (Brevity: Saying a lot, while saying very little.)
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To: Huck
The only safeguard against the gubmint is a populace that jealously and vigilantly guards and preserves its own freedom.

You are correct.

I believe that we are heating up to a boiling point in the US.

22 posted on 07/30/2009 5:58:41 AM PDT by Loud Mime (More government jobs and benefits and more unemployment sets the stage for real disaster)
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To: Loud Mime
I believe I made it clear by putting my remark in the context of law. You put yours in a theological context.

Completely understood. But there is ample evidence that even the folks that wrote these great documents believed that the theological context outweighed or superseded any written or codified law that the state could produce, which would disparage or limit those rights which are considered inalienable.

This is why it is clearly stated in the DOI that whenever the state and it's codified laws would become destructive or disruptive of these rights, the people retain the right to dissolute or abolish it as a transgressor, and start over.
23 posted on 07/30/2009 6:06:01 AM PDT by bamahead (Avoid self-righteousness like the devil- nothing is so self-blinding. -- B.H. Liddell Hart)
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To: Huck
The only safeguard against the gubmint is a populace that jealously and vigilantly guards and preserves its own freedom. Short of that, scheming politicians, lawyers, and thieves will always find a way to have their way.

Well said! And those schemers will sell plunder in exchange for power - and find plenty of takers among the people.

Only the people can maintain a representative republic. If they choose a democracy instead, all bets are off as to whether the nation will survive for long. (It'll depend on their leaders, I'm afraid. And that's not a bet I'd want to take!)

I'm sorry, Mr. Frankin, but we couldn't keep it.
24 posted on 07/30/2009 6:07:57 AM PDT by LearsFool ("Thou shouldst not have been old, till thou hadst been wise.")
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To: LearsFool

Err...Mr. Franklin. :-)


25 posted on 07/30/2009 6:10:38 AM PDT by LearsFool ("Thou shouldst not have been old, till thou hadst been wise.")
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Comment #26 Removed by Moderator

Comment #27 Removed by Moderator

To: Loud Mime

I disagree with your point about the 17th. The ‘states’ didnt lose their Senators, the state party beauracracy lost their power over the Senators. The people of the states gained more control over their Senators.


28 posted on 07/30/2009 6:24:05 AM PDT by contemplator (Capitalism gets no Rock Concerts)
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To: contemplator

Well, that’s one way of looking at it....

I prefer to go a few steps further in the course of events. The people having control of their Senators may be mistaken for the Senators controlling the people. They do this by providing benefits from the treasury.

The States are unable to stop this theft. To dismiss state powers as a simple bureaucracy is minimizing an important facet of government power. With the 17th, the States lost all official influence in the legislative courses of the US government (a very important point) and the Tenth Amendment lost its guardians.

Please consider these points; it was not just bureaucratic power.


29 posted on 07/30/2009 6:34:33 AM PDT by Loud Mime (More government jobs and benefits and more unemployment sets the stage for real disaster)
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To: LearsFool

LOL! How different can two people get! (Franken v. Franklin)


30 posted on 07/30/2009 6:37:08 AM PDT by Loud Mime (More government jobs and benefits and more unemployment sets the stage for real disaster)
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To: Loud Mime
[ The government does not grant rights. It recognizes them. / It does both. ]

The Government grants privileges.. and alienates rights..
Thats what gov't does... alienates unalienable rights and converts them to privileges..

No democracy has ever yet been democratic..
Democracys always become Oligarchys..
Because democracy is defacto Mob Rule by mobsters..

The U.S. Constitution has NO WHERE in it the words democracy, democratic, or democrat.. by design.. it was not a clerical error..

31 posted on 07/30/2009 7:28:53 AM PDT by hosepipe (This propaganda has been edited to include some fully orbed hyperbole....)
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To: Loud Mime

****When liberals claim they have a right to health care from the federal government, cite Federalist 84 and watch the deer in the headlights.*****

I remember under the X42 admin there was a claim that poor folks had a constitutional right to have government paid AIR CONDITIONING.


32 posted on 07/30/2009 8:04:04 AM PDT by Ruy Dias de Bivar
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To: Loud Mime
BFL. The Federalists were right when they claimed that by listing a subset of rights specifically to be guaranteed, that some would later claim that anything not listed is not a "right". (See some so-called 'conservatives' that argue against us having a right to privacy simply because the specific right isn't enumerated - even though the 4th and 5th certainly imply such a right) At the same time, You merely need look at Britain and Canada to see what happens when you don't specifically enumerate at least some rights. They have seriously discussed banning kitchen knives in Britain.
33 posted on 07/30/2009 8:12:57 AM PDT by zeugma (Will it be nukes or aliens? Time will tell.)
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To: Loud Mime

The bill of rights was created to protect our God given rights. The states, using legal frame works can grant priviliges that can be taken away. IE: driving a car. There is no comparison to the 2nd amendment.


34 posted on 07/30/2009 9:03:20 AM PDT by Freedom2specul8 (I am Jim Thompson............................Please pray for our troops....)
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To: bamahead

Bump~


35 posted on 07/30/2009 9:05:47 AM PDT by Freedom2specul8 (I am Jim Thompson............................Please pray for our troops....)
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To: Loud Mime

http://www.youtube.com/watch?v=y98HxYbsdBM

everyone should watch this video

A soldier is telling his senator he wants an apology for supporting the health care bill.

he knows his stuff.

God bless this guy


36 posted on 07/30/2009 9:12:14 AM PDT by Munz (All tyranny needs to gain a foothold is for people of good conscience to remain silent.)
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To: Loud Mime
I'm a Hamiltonian, but I have to admit that one of his reasons for opposing the Bill of Rights (they're not necessary because the Constitution doesn't expressly provide for the violation of anyone's rights) is specious, since he didn't believe in strict construction.

However, the other reason--a foundation for other rights--is right on target. An enumeration of rights could not but eventually be interpreted as a granting of rights, and if government grants these rights, why not more?

Plus the "Bill of Rights" has been for about sixty years or so the number one excuse for centralizing all power in the Federal Government--specifically the US Supreme Court, allowing it to sit in judgment on ever local ordinance in the country. And conservatives are at fault as well as liberals (though not so egregiously). But if a high school principal is "violating the First Amendment" by censoring the "f-word" out of a student newspaper, of course universities are "violating the First Amendment" by enacting speech codes. In other words, only the Federal Government can violate the "Bill of Rights." Conservatives who want to apply them to universities are as wrong as liberals who want to apply them to high school football prayers.

We'd have been much better off without a "Bill of Rights."

37 posted on 07/30/2009 9:23:46 AM PDT by Zionist Conspirator ('Ani hagever ra'ah `ani, beshevet `evrato!)
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To: Zionist Conspirator

My take on Hamilton’s writings (and Madison) is that they understood the balances of the initial Constitution. As it was originally designed it worked well and preserved rights and liberties.

But when the first serious challenge of limited government was debated (the Cod Fisheries Act) Madison rose and challenged the proposal for all he was worth.

We now have no such member of Congress. Heck, they do not even understand the Constitution. How else could they take an oath to preserve, protect and defend the Constitution and then nominate and confirm a character such as Sotomayor?

The pressure continues to build......


38 posted on 07/30/2009 9:38:39 AM PDT by Loud Mime (More government jobs and benefits and more unemployment sets the stage for real disaster)
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To: Munz

Good video. Keep passing it on and stand up and say the same when the moment arises.


39 posted on 07/30/2009 9:40:46 AM PDT by Loud Mime (More government jobs and benefits and more unemployment sets the stage for real disaster)
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To: Loud Mime

Your knowledge of the early Federal period far exceeds my own, but my understanding is that Hamilton and Madison eventually parted ways, Hamilton opting for federal supremacy and implied powers, and Madison adopting (or perhaps retaining) a more “Jeffersonian” position.


40 posted on 07/30/2009 9:41:25 AM PDT by Zionist Conspirator ('Ani hagever ra'ah `ani, beshevet `evrato!)
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