If you ask a person on the street to name a provision in our
Constitution
, you likely will hear a reference to
freedom of speech
or the press or the
right to bear arms
. All of these answers come from a particular segment of the Constitution: the Bill of Rights.
The Bill of Rights is all amendments, meaning the Constitution as originally ratified did not contain them. Only in 1791, three years after ratification, were these provisions added. Their original omission caused quite a stir during the ratification debates, so much so that many counted on one being added as part of their support.
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Defenders of the Constitution did make an argument against a bill of rights. The most famous was published on July 16, 1788, 235 years ago. Federalist 84 was the penultimate essay in the most important defense of the Constitution ever produced. In it, Alexander Hamilton addressed the objection that the proposed Constitution lacked such a bill. In doing so, he revealed, perhaps unintentionally, a permanent tension within American politics.
Hamilton argued that a bill of rights was superfluous and counterproductive. It was superfluous because the original Constitution already included a list of individual protections. These limitations on the government mostly came from Article 1, Section 9-10. They included prohibitions against ex post facto laws, bills of attainder, and limitations on suspending the writ of habeas corpus. Hamilton later said the Constitution as a whole comprised a bill of rights, laying out the privileges of citizens in how they participate in government in addition to the protections already noted.
A bill of rights would prove counterproductive, too, because it would undermine the very goals its supporters sought. A list of individual rights conveyed the idea that government gave such rights rather than those rights being the original, natural possession of the people. Such provisions also shifted the burden of proof from the government to the individual when the two came into dispute. A list of rights put the onus on the individual to prove from that list that the government could not do an action. No list at all put the burden of proof on the government to show the Constitution had given it the authority to act through some empowering provision.
Hamilton’s arguments remain important today. Many people believe our government’s relationship to individual rights is wrong. But they don’t agree as to how. Do we suffer a deluge or dearth of constitutional rights? Those saying we have too many rights believe those limitations on government undermine rule by the people through majority will. Those who think we have too few rights see the Constitution as inadequately protecting persons against majority tyranny.
Federalist 84 points toward without explicitly stating how this tension will always be with us. Ours is a government grounded in consent, meaning the people rule through majorities. We also are a regime committed to individual rights, which all governments should protect and no government should infringe.
Balancing those two commitments has been no easy task, for they create citizens with two sometimes competing perspectives. Sometimes we see ourselves as the individual against whom the government is acting. Then, we want the state to bear the burden of proof to justify its actions. At other times, we view ourselves as the government, part of “We, the People.” Then, we see majority rule as the standard and wish the minority, especially individuals, to prove we can’t act.
Despite the strength of Hamilton’s arguments, this tension shows the advantage of having a written Constitution with its Bill of Rights. We needed such provisions to make sure majority will did not conflate a lack of a list of rights with no rights at all. At the same time, we must understand that government is limited by more than a list. It is limited by the kind of powers given in the Constitution through the original articles as well as the existence of other unlisted rights, as noted in the Bill of Rights’s Ninth Amendment.
On this anniversary, let us take seriously Federalist 84’s caution about a bill of rights. But let us be thankful that caution did not win out. Our republic is better when we see its limits and its benefits.
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Adam Carrington is an assistant professor of politics at Hillsdale College.
