It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favour of privilege, reservations of rights not surrendered to the prince. … 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 everything 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 which are 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.
WRONG!
Hamilton was right. The excersize of the every expanding commerce clause proves it.
He is right, but a bill of rights is necessary, nonetheless. Tyrants and opportunists would still come up with some way to claim those same powers, regardless of whether there was a bill of rights. With one, however, their attempt will be hindered.
That was the argument of the Anti-Federalists and, in modern day terms, may have had merit. Today, we do not think of rights as some infinite pool of defined and yet-to-be-defined rights (see Ninth Amendmnet). Folks have a tendency to believe that, if a right isn’t in the Bill or Rights or somewhere else in the Constitution, the right doesn’t exist. That’s because modern liberals see rights as largesse from government, and not inuring in our nature as human beings. They have forgotten about the Declaration of Indpendence and “unalienable rights” from “our Creator.” Even Obama skips over that part of the Declaration.
it is conservatives who see the rights llisted in the constitution as “limiting”
show me a conservative who believes there is a right to privacy
most conservatives say there isnt one because “it isnt listed”
Let’s see. Rip out every decision made by any court based on the Bill of Rights. Would you want to live in that country?
The very design of the Bill of Rights is to restrict the federal government from violating the natural rights of its citizens.
And, evern more, ripe out every decision by any court which applies the Bill of Right to state action under the Fourtheenth Amendment. Would you want to live in that country?
As a post script to my prior comment, that is also because liberals see governmental power as without limitation. A proper understanding of the Constitution requires that government be viewed as a limited in its powers to those expressly enumerated in the Constitution. If that proper understanding of the Constitutiion is accepted and the elastic relationship between governmental power and individual rights and liberty is understood, then no need would exist for an enumeration of individual rights. But, today’s liberals view that relationship between power and freedom the opposite of how it was intended and laid out in the Constitution.
On the other hand, two words: Commerce Clause. Not Bill of Rights, but talk about claiming more than was granted.
On matters like this, I recommend reading the Confederate Constitution set up by the South. Minus the slavery clauses, that constitution, which was totally based on the Constitution, presents insight what flaws people seventy years removed from the creation of the Constitution saw.
Looking at it from todays perspective, I’d have to say that he had a point. Even the part of the bill of rights that says “promote the general welfare” is being used by those who’d have the government provide for everyone by creating those entitlement programs currently being offered by our government, which in return reduce our liberties and add more to our debt.
@Michale, if the governmental power was limited to those powers set out in the various constitutions, yes. A bill of rights is only important when the government — be it federal or State — exercises powers greater than what it is granted by its organic document.
Obviously Hamilton was wrong. Thank G-d for the Bill of Rights, because if we didn’t have them, the federal government would have long ago infringed upon the rights contained therein. As it is, the SCOTUS allows the federal government to ignore the Ninth and Tenth Amendments, but at least It doesn’t let the government to ignore the first Eight Amendments (though the 2005 Kelo decision took out the word “public” from the Fifth Amendment and now lets government confiscate your property for private use instead of just public use).
Disagree. The 9th and 10th amendments cover Hamilton concerns (however the Federal gov. has ignored the 9th & 10th)
He was wrong. The ones we actually have enumerated are barely if at all respected as it is.
Stephan Dejean, THe first 8??? What about the freedom of religion being ignored… See the John Adams, Thought on Government 1776
thread.
I think Hamilton’s point was that by enumerating the powers in the bill of rights we could possibly limit our freedoms and increase the government’s power by failing to list or by misinterpretation. Essentially, we could only be left with those specified in the Bill of Rights. We citizens were meant to have MUCH more liberty than we are left with today.
I LOVE HAMILTON…HOWEVER HE WAS WRONG ON THIS ISSUE! “THE BILL OF RIGHTS” ARE EASY, CONCISE, AND TO THE POINT! PERIOD.
@Grant: precisely!
I believe he may be correct…
“…but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” Unfortunately, I must agree at least in part. Let us think of political, spiritual, and work environments of the framers of the constitution. We see much of their thoughts in their writings that we study. If only these similar thoughts were present today within as much of the population as at the time of our founding. I find that the freedom of speech guaranteed by the Bill of Rights has been carried far beyond what our founders would have ever intended. The freedom of religion is also in a similar state. Yet, I firmly believe that without the enumeration of these rights the right to bear arms would have ceased decades ago. In the wise words of the great detective Adrian Monk, “I could be wrong, but I don’t think so.”
History has proven him right, though following an era of an over-reaching judiciary makes me glad that at least those rights are enumerated.
Hamilton could not forsee the dishonest power hungry polititions we are saddled with today.
@Dan Smith: All of the members of the Constitutional Convention clearly understood the significance of power hungry politicians. That’s why they made Members of Congress employees of their respective states. The power hungry politicians eventually made themselves their own employers answerable only to themselves and reelection.
The founding father only made one mistake. They did not allow the States to amend the Constitution without Congress’s approval. The States can only call for a new constitution. The power hungry yearn for an opportunity to write a new constitution so they can dismantle all curbs on their power.
“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.” – Alexander Hamilton, Federalist No. 84, Certain General and Miscellaneous Objections to the Constitution Considered and Answered, July 16, 1788
The last sentance seems to sum up the argument (….They might urge with a ……afforded a clear implication that a power……vested in the national government). I agree with this last sentance…The Bill of Righs may have indeed opened up an argument for the reglation of such rights…where the Constitution and our Founding Fathers may have NEVER INTENDED the Government (Federal) to have any such powers. Certainly not the power to regulate these rights listed in the Bill Of Rights.
I do think our Founding Fathers thought that the less the Federal Government regulated peoples day to day activities the better. After all, they had most recently fled England under the opression of the King’s control over their day to day activities. They clearly wanted less Federal Government control…not more. From what I have heard of them…they believed in Americans governing and settling most disputes at a local level, not a Federal level. Our Founding Fathers had sacrificed much and fought hard to get away from a central government (i.e. the King Of England). They believed in keeping the power of self determination and responsibility with it’s citizens, not in the hands of a baby-setting -Central Control of any kind. Perhaps it was out of fear that they thought they must delineate the rights they most coveted. Write them down , so there woulld be no misunderstanding as to what they wanted.
BOR necessary. Means I can speak out against the policies of my current President without fear of retribution toward me and my family. I would probably already be in a gulag somewhere.