Hamilton Argues Against a Bill of Rights

During the late 18th century the Antifederalists argued against the constitution on the grounds that it did not contain a bill of rights. They believed that without a list of personal freedoms, the new national government might abuse its powers and that the states would be immersed by an all to dominant and influential national government. The Antifederalists worried that the limits on direct voting and the long terms of the president and senators, supplied by the constitution, would create a population of elites and aristocrats, which in turn would eventually take away power from the people. They also feared that the president might become another monarch. In other words, the Antifederalists ultimately felt that the new Constitution was undemocratic.

Supporters of a constitution, lacking a bill of rights, were called Federalists. The Federalists included members such as Alexander Hamilton, James Madison, and John Jay, whom wrote a series of essays that were designed to inform and persuade the public of their views pertaining to the issues of the day. Among these views was whether a bill of rights should be added to the constitution. The Federalists, via Alexander Hamilton, dealt with this issue in a foremost way in their 84th essay.

In the 84th essay Hamilton begins by explaining that a bill of rights, which are "in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince." Therefore Hamilton states that bills of rights "have no application to constitutions professedly founded upon the power of the people," and that under the constitution "the people surrender nothing, and as they retain everything they have no need of particular reservations."

Another argument used by Hamilton was reminding, those who criticize the constitution for lacking a Bill of Rights, that many of the state constitutions do not contain one either. He believes that the Constitution, as is, effectively includes a bill of rights. The constitution contained various provisions in favor of particular privileges and rights. Provisions such as the power to impeach, writ of habeas corpus, the allowance for no bill of attainder or ex post facto law, no granting of title of nobility, trials that shall be by a jury in the state which the crime was committed within, and that punishment for treason will not extend to family members of the person convicted of that crime. To Hamilton these privileges and rights amount to a bill of rights. Hamilton continues by writing "the constitution of each State is its bill of rights." And that "the proposed Constitution, if adopted, will be the bill of rights of the Union."

Hamilton goes further and affirms "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." Hamilton believes that a bill of rights would be dangerous because it "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?" Hamilton then asks his readers to ponder if "the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" Hamilton believes that if the constitution refers to not restraining the press that in effect it has conferred a regulating power. Using the provision against retraining the liberty of the press to point out how a bill of rights might be misused because