Federalist 84 is an interesting read because it includes Hamilton defending the fact that there is no Bill of Rights in the draft constitution. Here we can look at the reasons for this omission, later corrected, by the Founders.
We should recall that one of Hamilton’s primary audiences was the delegation from his home state of New York. To them, he points out that his own state’s Constitution does not contain a Bill of Rights. Besides, the proposed document already contains many items that protect the rights of citizens. For instance, impeachment does not extend to any punishment beyond removal from office and disqualification from holding any future office.
The draft also includes, Habeas Corpus (the ability of a citizen to demand that a court review his detention suspended only in the case of invasion or insurrection), a prohibition against passing of laws ex-post-facto, and the guarantee of trial by jury. Since these and several others are included in the body of the constitution itself, Hamilton reasons that a separate Bill of Rights is not necessary.
He goes on to point out that, up until this point, bills of rights were generally agreements between kings and their subjects. The first such agreement, the “Magna Charta”, was both an agreement between King John and his barons, as well as the first limitation on the power of a monarchy. But the primary reason why a bill of rights is not needed in the new United States is because, in this case, “the people surrender nothing; and as they retain every thing they have no need of particular reservations.”[1]
Hamilton then quotes the opening line of the document that because it is “We the People” who are creating the constitution, it is the people who hold the power. This, he felt, was far more important than any separate bill.
Hamilton further explains that he feels that having a bill might be worse than useless, it might even be dangerous. Why do we need a document that itemizes that there is freedom of the press for instance, when the power to restrict the press is nowhere in the Constitution? We see here again two important concepts. The first was the Founder’s fear that to list was to exclude, meaning that if they listed the people’s and the state’s rights, that could be interpreted as excluding those not listed.
The second was that the Founders meant for the Federal government to only be involved in those areas where it was expressly permitted to be involved. We know this to be the Founder’s intent because Hamilton goes on to say that “the proposed Constitution, if adopted, will be the bill of rights of the Union.” The entire document should be read as their attempt to allow government to exist, but only within the very limited defined parameters that they had established.
Here it is important to note that, even with Hamilton’s assurances, there was still a great deal of fear that the Federal government might still grow too powerful. For this reason, even as we are required to read the Constitution as a limit on the power of Federal government, a separate Bill of Rights was added prior to the acceptance of the document.
It is absolutely critical to understand this origin, and for us to acknowledge that the entire Bill of Rights needs to be read in that light. It is, in its entirety, a restriction on Federal power. That some have chosen to pull out a phrase or two in the attempt to change the meaning of this or that particular Amendment is to obfuscate the clear intent of the Founders in their writing.
Hamilton addresses two other concerns in Federalist 84. The first is that that the location of the capital might be too remote to the citizens to effectively be represented or to follow the goings on therein. Here, it would be beneficial to remember that the Constitution allows for only three definitions of land within the United States. There are only states, territories, and the District of Columbia. Only one of those was designed to be represented in Congress, and that is the states.
The second was the concern that such a federal system would be too expensive for the citizens. Here Hamilton points to the very limited power, and thus reach, of the new government. While the roles are limited, they are important. He points out that “There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system”, but these same enumerated roles would limit both intrusion and cost.
Once again, it would be wise for us today to listen to what they had to say.
- All quotes are from https://guides.loc.gov/federalist-papers/text-81-85 ↑
To read all of John Parillo’s work on the Federalist Papers, check here.
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Right. By listing items still retained by the People, those not listed are not considered protected. Why the lack of emphasis to rights retained could be to the closeness of the deliberations of the attendees. That is to say, a writer writes and in their mind the flow of thoughts can include what is NOT written down but remains in the thoughts of the writer as being part of what is written. This is to say stuff gets left out if one is not careful.
Thus, the U.S. Constitution did not explicitly define the proper relationship of itself and the creators, the People, nor define itself explicitly. Convention says it was to limit, but also to allow for details to be made of the scope of this new federal government’s operational authority. It is to the “fleshing out” process where transgressions continue today.
Obviously the opening paragraph of the U.S. Constitution is extremely inadequate for the future generations of those who hold restraint was the purpose of the U.S. Constitution on this new federal government. An amendment for this is in order to clarify what the scope of the U.S. Constitution entails.
Is it to be an ever expanding thing ?
or
A strict limit thing ?
Neither is defined clearly enough in that document.
James Madison did not believe a Bill of Rights was necessary, because the federal government would have no power in the areas a Bill of Rights would protect. It was only upon the insistence of several states, in ratifying the proposed Constitution, that a Bill of Rights was added.
And we thank God that it was, for the Framers certainly never foresaw into what kind of monster the federal government would metastasize.
The greatest mistake was not requiring a balance federal budget. Most states have balanced budget requirements, but the public would rebel if they were taxed enough to pay for all of the [insert slang term for feces here] on which government spends money. But with ‘revenue sharing,’ and the federal government now paying for what were originally entirely state functions, every state has a de facto unbalanced budget; it’s just that their excess spending is passed on to the federal government, which can borrow seemingly without limit.
Excellent article and comments. Thanks!