On December 15, America passed the anniversary of our Bill of Rights, designed as a strong bulwark against arbitrary government power and without which we would not exist as a nation. Unfortunately, it received hardly any notice last month. I saw only one mention, and I had to go beyond my usual round of websites and newsfeeds to find it. However, the debate that led to it still deserves close attention as it is central to constraining government to “stay in its lane” by defending Americans’ rights against its public servants’ continued efforts to careen dangerously outside it.
At first, our Constitution’s framers opposed a bill of rights. Only the Antifederalists’ insistence that it was a “make or break” condition of uniting led to its creation.
The 'Dangers' of a Bill of Rights
The clearest statement against a bill of rights was Alexander Hamilton’s Federalist 84.
Hamilton argued that the Constitution already included what amounted to a bill of rights, through its “provisions in favor of particular privileges and rights [e.g., the right of habeas corpus], which, in substance amount to the same thing,” and that “It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government.”
Further, Hamilton asserted:
Bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. It is evident, therefore, that...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, claimed:
[B]ills of rights...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...it would furnish, to men disposed to usurp, a plausible premise for claiming that power. They might urge with a semblance of reason...that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government.
The Nature of Power
Antifederalists disagreed. Their case against Hamilton’s logic was best made by Brutus:
If everything which is not given [to the federal government] is reserved [to the people], 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. The only answer that can be given is that these are implied in the general powers granted...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 everything 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 “the people surrender nothing” under the Constitution:
But rulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes and 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.
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 argument in favor of “this grand security of the rights of the people” because a clear statement of individuals’ unalienable rights would help ensure that no rights beyond what was necessary “to establish laws for the promoting of the happiness of the community, and to carry those laws into effect” would be sacrificed by individuals to their central government:
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’s core argument against a bill of rights was that the federal government would only be able to act where its power had been clearly enumerated in the Constitution. Therefore, it would provide no added protection for Americans but would provide a pretext for unwarranted expansions of federal power.
Brutus’ rebuttal was that the federal government would grow beyond those enumerated powers, and potentially so far beyond them as to destroy even a passing resemblance between words on parchment and reality, without a clear articulation of rights that were to remain inviolable. And that required a bill of rights, which Justice Hugo Black called the “Thou Shalt Nots,” whose negative rights guard against abusive federal overstepping of our liberties.
Forcing Government to Stay in Its Lane
The government can only enforce negative rights, not create positive rights for some to be given things, necessarily imposing unwarranted harm on the rest of American citizens.
Liberty means I rule myself, protected by my negative rights, in which voluntary agreements resolve conflicts. And for our government to remain within its delegated authority, reflecting the consent of the governed expressly delegated in “the highest law of the land,” it can only enforce negative rights, not create positive rights for some to be given things, necessarily imposing unwarranted harm on the rest of American citizens.
Given how far the federal government exceeds its constitutionally enumerated powers today, despite the Bill of Rights’ attempts to prevent it, we should be thankful that Brutus won the debate over it. And rather than ignoring it, we should take his arguments seriously again if we to wish be more faithful to the constitutional vision, which intended to force our government to “stay in its lane” because anything beyond that is also beyond any defensible interpretation advancing our “general welfare,” as stated in the Constitution’s preamble (which, ironically for Hamilton’s argument, has been frequently used to claim more rights than our government was granted) and undermines what once made America a beacon for the world’s freedom lovers.