In is a not-uncommon observation that Americans take far too much for granted. But it is too little recognized that near the top of the list of blessings we take too much for granted is our Bill of Rights, whose 231st anniversary is today.
Not just the Bill of Rights, which Justice Hugo Black called “the Thou Shalt Nots,” but the debate over them is worth more attention than most Americans give it. One reason is that our Constitution’s framers initially opposed a Bill of Rights. The reversal came from Anti-Federalist objections that without adding certain critical Thou Shalt Nots to limit the federal government, it would have far too much power, to citizens’ detriment. Another reason is that we have a record of the positions taken by the Federalists in Alexander Hamilton’s Federalist 84, and the positions taken by the Anti-Federalists in the works of the writer who called himself Brutus. Since that debate still informs the basis for upholding our rights against threatened federal assaults on them, which are currently accelerating, it remains at least as important today as it was in 1791.
Hamilton’s opposition to an added Bill of Rights in Federalist 84 began with the argument 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.”
Anti-Federalists, particularly 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.” Instead, “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 it was true that “the people surrender nothing” under the Constitution in the absence of an additional Bill of Rights. “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. To give up more sacrifices liberty for no benefit to the “General Welfare,” as the preamble to the Constitution put it, of citizens. “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 far overstep its few enumerated powers. Given how far the federal government exceeds those bounds today (illustrated by today’s almost total lack of publicly expressed concern that it is far outside its proper lane, light years beyond those enumerated powers) despite the Bill of Rights’ parchment constraints, we should be thankful Brutus’ view prevailed two centuries ago. Americans would be far worse off without the Bill of Rights.
That is also why we should remember Brutus’ logic, if we would keep faith with the vision of America as a beacon of freedom, because whatever rights the federal government is granted (or it usurps) limit individuals’ rights to govern themselves in those areas, even when they do no harm to others.
Gary M. Galles is a professor of economics at Pepperdine University.