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.
The Second Amendment is a good example.
Could you explain?
You are too kind. My studies continue in these areas and are dwarfed by the knowledge of others such as “Publius” a freeper of tremendous knowledge. We have many others who contribute to these threads with tremendous comments. I am honored to post the initial essay and then watch the comments grow.
Madison and Hamilton are an interesting pair. After the Constitution was ratified they had different roles. Hamilton focused on banking and the industrial revolution. Madison went to the House of Representatives and held great power. Madison was suspicious of Hamilton’s constant dealings.
Hamilton seemed to run wild with his political comments; that, along with his being a poor shot, led to his death.
Darn, I would love to see that sort of stuff in today’s politics! Patrick Leahy and Miguel Estrada come to mind...
The Bill of rights is not all rights, some of the amendments are limitations of federal power. The word "right" appears in Amendments II, IV, VII and to some point IX. These are recognized by government and its enforcement mechanisms.
There was. They didn't get paid. Congress critters were supposed to serve two years and Senators six. It was never intended for the them to become perpetual lords.
Hamilton was right on many points. He was wrong on some too. There has yet to be a man since Jesus who was always right.
Oh gosh and golly. (blush blush)
Once our FReeper Book Club on Ayn Rand's Atlas Shrugged is finished, Billthedrill and I are looking at a project where we would take the "Federalist Papers" and "Anti-Federalist Papers" in strict chronological order in an interleaved manner so as to follow the point and counterpoint of the debate over the Consitution. We would intersperse this with commentary about what was happening in the state ratifying conventions during the period.
Bill and I are debating about reformating the papers. He thinks that the "process and logic of the quill pen" should be kept intact, while I want to reformat each sentence into Structured English with separate lines and indentations for clauses so as to permit easier comprehension by modern readers not used to extremely long sentences and paragraphs that take up several pages.
There is also another problem with the "Anti-Federalist Papers". They are not as organized as the "Federalist Papers" and are not as easily avaiable in complete form, but mostly as fragments. Someone believed that if there are 85 "Federalist Papers", there must logically be 85 "Anti-Federalist Papers", so he cut and pasted the "Anti-federalist Papers" to form 85 cogent documents. I question that move.
...along with his being a poor shot, led to his death...Darn, I would love to see that sort of stuff in today’s politics! Patrick Leahy and Miguel Estrada come to mind...
The site where Burr shot Hamilton is now a New Jersey state park in Weehauken. I have long believed that it should be established as our national dueling grounds with the duels covered by ABC Sports. (What a shame Howard Cosell is gone!)
My own first choice was for Zell Miller to challenge Chris Matthews to a duel over his dishonorable and ungentlemanly treatment of Michelle Malkin on his show.
Then we see things alike, but may be describing differing shades of the same color.
My point has been that the political parties have replaced the States in the Senate’s influence mechanisms.
Next on the dueling fantasy list:
Howard Liman v. Oliver North (too late, I know)
George W. Bush v. Keith Olbermann
Sarah Palin v. Jeoffrey Dunn
and afterwards
Sarah Palin v. Stephen Branchflower
and afterwards
Sarah Palin v. David Kernell
then she can take a few days off....
This is only true if the governors accede to the premise that the government is "under God"; for, if it is not, the authority of the government is absolute and all rights derive from it.
As I've said before, don't you think any one interested in limited government would exclude phrases like "general welfare", "necessary and proper", "interstate commerce"? A new constitution would chain them down even further. This one, in my view, is beyond repair. Much of it could be kept in a new one, but it's too screwed up to be fixed by amendment. Like the founders who decided to scrap the Articles of Confederation altogether (without authorization), a totally fresh start would be the only way to try to get it right. And of course, no liberals could be involved in it. They are the disease.
Seriously, no government design can withstand the continued assaults of those who change the meaning of words and laws. No matter what the Constitution reads, the foundations of the language and the constitution’s intent may be redefined into anything a rebel groups wishes.
I consider the ratification of the Constitution as the proper authorization for the AOC’s demise. Even New York, who withdrew its delegation (save Hamilton) from the Convention, believed in the change. In the long run, the new Constitution was a necessity.
But it fell victim to, dare I say, CHANGE. The interstate commerce issue was redefined to include incredible federal powers....who would have thought that Abortion would fall under interstate commerce? Can you imagine the Founders faces if they heard of this in person?
That’s what CHANGE does.
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