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Is the Bill of Rights “dangerous?” Alexander Hamilton thought so

Posted by Liberty Day Institute on December 15, 2015  /   Posted in Blog

By Jimmy Sengenberger, LDI President

Today, December 15, is Bill of Rights Day.  In the year 2015, we take for granted that there is and has been a Bill of Rights throughout most of our country’s history.  The first ten amendments to the Constitution, which constitute the Bill of Rights, not only brought the Constitution to fruition as part of a tremendous compromise between two warring political factions, but also sparked heated debate on whether such a thing was necessary in the first place—and even “dangerous.”

federalist-papersThe Federalist Papers—published by Alexander Hamilton, John Jay, and James Madison in 1787—came on the heels of the Philadelphia Convention, which churned out a new document that would become, by 1789, the “Supreme Law of the land.”  The papers comprised a forceful, eloquent response and counter-argument, doused in political philosophy, to the claims of opposition against the charter.

The Federalists, those in favor of a stronger national government and therefore advocating ratification of the Constitution, were the wealthy, elite, landowning merchants. The Anti-Federalists, or those who were strongly adverse to the proposed Constitution, were the average Americans—the farmers, the debtors, the shopkeepers, and the laborers.

While it seems foregone to us that a bill of rights should be included in the Constitution, debate over the issue was in fact intense. The Anti-Federalist movement felt that, without the Bill of Rights in place, there was no real assurance that citizens’ rights would be protected, and therefore their inclusion was necessary in order to prevent against an overreaching federal government.

Hamilton, a Federalist, took a sharply different view in his essay. Federalist No. 84, written to counter Anti-Federalist grievances, was an intellectually astute response in which he argued that a bill of rights was not only unnecessary, but dangerous as well.

Hamilton put forward several key points. First, numerous protections of rights were already contained in the document. For instance, religious tests for office are forbidden, the insinuation being that individuals have the right to practice their own faith. Also, the writ of habeas corpus can only be suspended during a time of rebellion, and all people, according to the original Constitution, have the right to a trial by jury.

Second, Hamilton argued that the specific enumeration of the government’s powers removed the need for new safeguards against what it already did not have the power to do.

Hamilton’s most significant argument, however, was that bills of rights “are not only unnecessary in the proposed constitution, but would even be dangerous.” In his mind, if the government is prohibited from doing certain things but isn’t prohibited from doing everything it isn’t expressly told it can do, then the danger is in its implications.  That is, the government can then do anything it’s not expressly forbidden to do.

In the end, in an effort to compromise with opponents in order to ratify the Constitution, the Federalists promised to approve a Bill of Rights as amendments to the Constitution, a promise which they kept, as the ten amendments were ratified in 1791.  Thank goodness our political leaders at the time were willing to compromise, or we wouldn’t have a Bill of Rights—and possibly a Constitution altogether.

About Liberty Day Institute

Founded in Denver, Colorado, in 1996, the Liberty Day Institute empowers educators to teach the U.S. Constitution and American Government using our Complete Educational Resource package.

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