Why the Bill of Rights?
by Gary Galles
December 15 is our Bill of Rights' 211th anniversary. We take its protections from arbitrary government power for granted. But our Constitution's framers originally opposed a Bill of Rights.
Few remember their reasons, or why the Anti-federalists (opponents of giving much power to the federal government) rejected them, resulting in the first Ten Amendments. However, since that debate still provides the basis for upholding our rights against federal assault, it remains as relevant today as two centuries ago.
The clearest statement against a Bill of Rights was in Federalist 84, by Alexander Hamilton.
Hamilton argued that the Constitution effectively included a Bill of Rights, in its "provisions in favor of particular privileges and rights [e.g., the right of habeas corpus], which, in substance amount to the same thing," and that "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."
Hamilton also argued 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. It is evident, therefore, that...they have no application to constitutions professedly founded upon the power of the people...Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations."
Hamilton's main argument, however, was that "Bills of Rights...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...it would furnish, to men disposed to usurp, a plausible premise for claiming that power. They might urge with a semblance of reason...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."
Anti-federalists disagreed. Their case was best made by one who wrote under the name of Brutus.
Brutus rejected Hamilton's logic.
"If everything which is not given [to the federal government] is reserved [to the people], what propriety is there in these exceptions? Does this Constitution anywhere grant the power of suspending the habeas corpus, to make ex post facto laws...It certainly does not in express terms. The only answer that can be given is that these are implied in the general powers granted...all the powers which the Bills of Rights guard against the abuse of are contained or implied in the general ones granted by this Constitution...[which] reaches to every thing which concerns human happiness—life, liberty, and property...the exercise of power, in this case, should be restrained within proper limits..."
Brutus also questioned whether "the people surrender nothing" under the Constitution. "But rulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes and to the injury and oppression of those over whom they are placed...It is therefore as proper that bounds shall be set to their authority."
Further, "Those who have governed have been found in all ages ever active to enlarge their power and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachment of their rulers."
Brutus therefore rejected Hamilton's conclusion in favor of "this grand security of the rights of the People."
Only those freedoms necessary "to establish laws for the promoting of the happiness of the community, and to carry those laws into effect" had to be given up.
"Others are not necessary to be resigned in order to attain the end for which government is instituted; these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good...in forming a government on its true principles, the foundation should be laid...by expressly reserving to the people such of their essential rights as are not to be parted with."
Hamilton's argument against a Bill of Rights was, in essence, that the federal government could only act where its power had been clearly spelled out in the Constitution. Therefore, it would provide no added protection for Americans, but would provide a pretext for unwarranted expansions of federal power.
Brutus' rebuttal was that the federal government would grow beyond those enumerated powers, unless Americans' inviolable rights were clearly laid out in a Bill of Rights.
Given how far the federal government exceeds its Constitutionally enumerated powers today, despite the Bill of Rights' constraints against it, we should be thankful that Brutus won this debate. And it is worth taking his arguments seriously again, if we to wish become more faithful to the Constitutional vision that makes America a great beacon for freedom lovers throughout the world.
Gary M. Galles is a professor of economics at Pepperdine University. Send him MAIL, and see his Mises.org Daily Articles Archive. See the Anti-federalist Papers.