Was the Bill of Rights Necessary?
It seems that these days people tend to think that the Constitution consists of the Bill of Rights and nothing more. In many ways, they're right, since the main body of the text has been perverted to such an extent that Professor Seidman's recent suggestion has already come to pass. I'm of the belief that our current mess is directly proportional to the extent to which we have strayed from the Founders' original intent, but that's a discussion for another day.
But what if there had been no Bill of Rights in the first place? With the current debate about limitations to our 2nd Amendment rights, I thought it'd be a good time to revisit Alexander Hamilton's words from Federalist 84:
"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. 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." [emphasis mine]
For those of us who believe in the natural rights theory of human existence, Hamilton's argument makes eminent sense. Why give "men disposed to usurp" a hook upon which they can hang their claims for power? Would we be in a better position regarding those rights had they not been clearly expressed? Or would Jefferson's observation that "(t)he natural progress of things is for liberty to yield and government to gain ground" have overwhelmed us years before?
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Jun '10
Re: Was the Bill of Rights Necessary?
This.
“Only a virtuous people are capable of freedom." - Ben
Perhaps Hamilton assumed the inherent(?) virtue of the citizenry. Even though the Bill might provide "pretext" for claims of powers unassigned, think of the constant fights that have been ongoing over 1,2,4,5 and to a lesser degree 10. Wilson allegedly had gangs of thugs do beat-downs on some of his opposition. What if he hadn't had to mess at all with the messy 1st and 4th? I think tyranny would have long swept the Constitution into irrelevancy without the Bill.
Dec '10
Re: Was the Bill of Rights Necessary?
Those in government will always seek power not granted in the charter. If we had no explicit limitations in the charter we could rely only on the courts and the common sense of Obama voters to restrain government encroachments on liberty. It's been all down hill since Washington swallowed the swill Hamilton served him on the 1st Bank of the U.S. Specifically, he wrote:
So if they can dream it up, connect it some way to a granted power, and it's not specifically forbidden, then government can do it. We've been operating like that almost from the founding because Washington caved on this first test.
Mar '11
Re: Was the Bill of Rights Necessary?
The logic of Hamilton's position in Federalist 84 is that there is a limitation granted in the charter regardless of amendments--and that limitation is that the Federal government is confined to doing what is within its enumerated powers.
Once the government viewed itself as able to operate outside of the bounds of enumerated powers, of course, this would become a paper barrier. One might argue that was as early as Jefferson's Louisiana Purchase, but I would say that large portions of voters and the Federal government itself didn't accept bureaucratic administration (un-enumerated and minute regulation) until the Progressives came to power in the early 20th century.
So, you might view Hamilton's point as naive, just as you might view the Founder's view of the Court's as naive: although it too largely stayed within its proper bounds through the 19th century.
In the long run, Madison et al. may have proved wiser on this issue.
Jul '12
Re: Was the Bill of Rights Necessary?
I wad taught that the Bill of Rights was necessary to get the Constitution ratified, so in that sense it was necessary. Also, almost immediately, Adams got the Alien and Sedition Act through, which I'd call overreach. So yes, I'd say the Bill was necessary since governments always try to exceed their enumerated powers.
Sep '10
Re: Was the Bill of Rights Necessary?
"For why declare that things shall not be done which there is no power to do?"
Sounds logical, but politicians limiting themselves to the powers given under the constitution? Really? I'm glad more cynical heads prevailed.
Apr '12
Re: Was the Bill of Rights Necessary?
Most of the members of the Constitutional Convention, not just Hamilton, felt a Bill of Rights was unneeded since the Constitution provided only a limited, enumerated grant of authority to the Federal government. However, so many of the state ratifying conventions demanded a Bill of Rights in return for voting for ratification that the first Congress proposed the amendments.
While they were theoretically right I think as a practical matter it was good to add the BoR. Without it liberal justices would be riding even more roughshod over our liberties. They've already eviscerated key parts of the original articles (Commerce Clause, Separation of Powers) and in the BoR turned the Taking Clause in the 5th Amendment on its head and have attempted to make the Second Amendment a stillbirth.
Our best chance to recoup the situation was the Privileges and Immunities Clause of the 14th Amendment but that was strictly limited by the Supreme Court in an 1873 case. Unfortunately, both traditional liberals and Borkian-style conservatives are scared of reviving the P&I clause because it is too liberty enhancing. Currently, only Justice Thomas supports reviving it.
Jan '11
Re: Was the Bill of Rights Necessary?
The Constitution is about defining the federal government, but the Bill of Rights sounds like it's about defining the people. You can read the Bill of Rights and assume that it's declaring which rights the people possess. You can be lured into that assumption very easily.
That's the key: the Bill of Rights shouldn't be read that way. The Bill of Rights doesn't define the people. It's still about defining what power the government has, and more importantly, what power it doesn't have.
It's not an abstract or pedantic point. It's at the heart of the abortion battle, for instance. From a purely Constitutional perspective (leaving morality aside), one legal question is whether the federal government (i.e., the Court) has the power to strike down laws based on their own definition of whether or not the fetus is a person, versus the mother's right to privacy. Blackmun's tortured argument results in giving the courts the power to strike down laws; Scalia (correctly) objects that the Constitution says nothing to grant that power.
Aug '10
Re: Was the Bill of Rights Necessary?
As a purely practical matter, the Bill of Rights was necessary, because it was a pre-condition by several states to get the Constitution itself ratified.
That's a great theoretical point, but it's a bit too naive about the willingness of human rulers to corrupt, mis-interpret, or otherwise ignore the restrictions put on them. And this was always Hamilton's blind spot, as he advocated for more centralization and a stronger executive (in the European mold) than the rest of the Founders.
Put another way, we all agree that modern politicians now "claim more [powers] than were granted", exactly as Hamilton worried. But it took 150+ years, a Civil War, a Great Depression, and two World Wars to get there.
In an alternate universe where we did not have the Bill of Rights, how much quicker would the USA have reached the same point of political overreach? And how much further along the slide into tyranny (or merely European style socialist decline) would we be in 2013?
Jul '11
Re: Was the Bill of Rights Necessary?
Is the constitution necessary? It seems that many of our political masters feels that it is inconvenient at times and we would be better off with it.
Aug '10
Re: Was the Bill of Rights Necessary?
The Bill of Rights gave the sense that Rights are granted by the Constitution, it is a legacy that we have been dealing with ever since. It is the Bill of Rights that gave government the excuse that they could expand power, after all they weren't violating our "Constitutional Rights."
Once we accepted that the Rights of individual citizens could be enumerated, rather than the powers of government being specifically enumerated, we began the path to progressivism.
Without the Bill of Rights people might have better understood that Rights pre-exist any document and that the Constitution is a document of explicitly enumerated powers.
Aug '10
Re: Was the Bill of Rights Necessary?
I cannot tell you how many conversations -- even here -- where a discussion of Rights has been responded to with a "where in the Constitution does it grant that right" sound byte. The better response is to ask "where in the Constitution is government allowed to do x."
Jan '11
Re: Was the Bill of Rights Necessary?
The Founder's original intent was the Articles of Confederation and Perpetual Union. The more I re-read it the more I wish we hadn't replaced it
Aug '12
Re: Was the Bill of Rights Necessary?
Is the Bill of Rights necessary? It was certainly thought necessary at the time. Just read the preamble:
While brilliant Hamilton was, in my opinion, more a nationalist than a federalist, necessitated by the fact a monarchy in the US was and remains impossible. Were he alive today I have every confidence he'd be one of Barack Obama's greatest supporters. And he'd LOVE executive orders!
Edited on January 13, 2013 at 4:34amDec '12
Re: Was the Bill of Rights Necessary?
Nathaniel,While I agree with you when you write "Once we accepted that the Rights of individual citizens could be enumerated, rather than the powers of government being specifically enumerated, we began the path to progressivism," the Founders believed they had addressed that with the 9th and 10th Amendments saying in essence, this Bill is it not all inclusive and anything we left out still rests with the states or with the people. The fault lies with subsequent generations that have ignored those provisions. We see what has happened to the people's rights that are reservd to the people but not enumerated. Imagine if we just had to rely on the unenumerated understanding of the 9th and 10th amendments without even those in writing. The Bill was an additional check on the government lest it ever needed reminding. As we have seen, it presently needs reminding ever single day. As Madison said, if men were angels and all that. Since they are not, we needed the Bill of Rights, even with the risk you so well identified from practice.
Oct '10
Re: Was the Bill of Rights Necessary?
The guys with the guns make the rules. What part of the course on civilization did you miss?
Jul '10
Re: Was the Bill of Rights Necessary?
If we had not replaced the Articles of Confederation, the War of 1812 would have ended very differently, the Republic of Texas would control the south western and Pacific states and perhaps Florida, and likely the Louisiana Territory, secession would never have been contested, the Axis would have won WWII, and the light of the West would already have fallen into obscurity.
I am open to correction, but my meager studies of Texan history does not reveal a strong abolitionist sentiment, nor the kind of 19th Century industrial fervor to compete with the north eastern seaboard, though under other circumstances a competitive spirit might have prevailed.
But the most important point I want to make is that the fault is not in our Constitution but in ourselves. Washington, DC, is not broken because of the Constitution, but in spite of it. Most complaints against the Constitution are rooted in bad Supreme Court dictates dressed up as law (ex: Maggot Roberts' legislation of a tax where Congress legislated a mandate, the Constitution expressly forbids any branch but the House from originating a tax), or bad regulation or executive orders. We have seen a lot of these lately.
Jan '13
Re: Was the Bill of Rights Necessary?
Yet, it was Hamilton who promoted the broadest possible power to tax under the "general welfare" clause.
Dec '12
Re: Was the Bill of Rights Necessary?
If the guys with the guns make the rules, how come the unarmed Supreme Court keeps getting to say what the rules say or mean? They have no guns to enforce their decisions.
Jul '10
Re: Was the Bill of Rights Necessary?
And when they first tried, presidents from Jefferson to Jackson laughed at them.
Re: Was the Bill of Rights Necessary?
And yet the Supreme Court has a surprisingly large police force. I used to live a couple of blocks from the court and once I was assaulted right at the corner of the building (U.S. Capitol across the street, Library of Congress across the other -- very bizarre place to be attacked).
My neighbor, walking behind me, took me to the Supreme Court. It was around midnight and there must have been a shift change right at that time because there were like two dozen police officers there. For one building!
They tried to find the guy so I ended up sticking with them for a couple of hours. They're not DC Police. They're not Capitol Police (the normal police that patrolled that general area). They're Supreme Court Police.
I know that's not your point, but I always found this interesting.