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Library of Congress

Rights Not To Be Parted With

 

Today America marks the anniversary of our Bill of Rights, designed as serious protection against arbitrary government power and without which we would not exist as a nation. While it gets little attention, it is worth remembering that many of our Constitution’s Federalist framers originally opposed a Bill of Rights, which was only overcome by Antifederalists’ adamant objections. Yet since their debate still provides the basis for upholding our rights against federal assault, it remains as relevant today as 230 years ago.

The opposition to a Bill of Rights was presented in Federalist 84, by Alexander Hamilton. He argued that the Constitution effectively already had one, in its “provisions in favor of particular privileges and rights [e.g., habeas corpus], which, in substance amount to the same thing.” Further, “bills of rights are … stipulations between kings and their subjects … 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 … 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.”

Antifederalists, particularly the one who wrote as Brutus, disagreed.

Brutus challenged Hamilton’s logic. “If everything which is not given [to the federal government] is reserved, 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 … 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. “Rulers have the same propensities as other men; they are as likely to use the power with which they are vested … 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 as much freedom as 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 argued that the federal government could act only where power had been expressly granted in the Constitution, so a Bill of Rights would provide no added protection. Brutus responded that without one, the federal government would vastly overstep its few enumerated powers. Given how immeasurably far the federal government exceeds those bounds today, despite the Bill of Rights’ constraints, we should be thankful Brutus’ view prevailed two centuries ago. And we should remember his logic, if we would keep faith with our founders’ vision of America as a land of freedom rather than a land of force. 

Gary M. Galles is a professor of economics at Pepperdine University.

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