Front Page Titles (by Subject) Whether a Bill of Rights Was Necessary - Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government
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Whether a Bill of Rights Was Necessary - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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Whether a Bill of Rights Was Necessary
On May 28, 1788, one year after the delegates to the Constitutional Convention had convened in Philadelphia to begin their deliberations, Alexander Hamilton published his reply to the Anti-Federalists on the question of a bill of rights. Not until the final hours of the Convention had the thought occurred to any delegate that a bill of rights ought to be included in the Constitution. It was then that George Mason of Virginia made the proposal, and Elbridge Gerry of Massachusetts moved to appoint a committee to draft a “declaration of rights.” The motion was voted down unanimously (that is, by all of the States represented), because the general consensus was that a bill of rights was not necessary. This was essentially the same position taken by Hamilton in Federalist 84.
Opposition to a bill of rights did not stem from indifference or hostility toward civil rights, but from the widely held belief that a declaration of rights would be superfluous. The Federal government was to be a government of delegated and enumerated powers. It had no authority to interfere with such matters as speech and religion. A declaration that it had no such authority would merely make explicit what was already implicit in the Constitution, with excess verbiage that simply stated what was already obvious.
To this, Hamilton added other objections. First, the Constitution already contained specific guarantees of liberty. “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws and of titles of nobility,” he asserted, “are perhaps greater securities to liberty and republicanism” than any provided by his own Constitution of New York.
Second, a bill of rights does not properly belong in this kind of Constitution. Such bills of rights are ordinarily stipulations between kings and their subjects, “reservations of rights not surrendered to the prince”—as seen in the Magna Charta, the Petition of Right, and the English Bill of Rights of 1688. Hence, Hamilton argued,“they have no application to constitutions professedly founded upon the power of the people” because “in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.” The Preamble of the Constitution, he believed, “is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.”
Third, said Hamilton, a bill of rights might even be dangerous. By listing freedoms that the Federal government could not deny, the government, by implication, would be free to deny those rights that had not been included. A bill of rights, he reasoned, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than was 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?”
Fourth, there was no clear understanding concerning the precise meaning of the liberties claimed, and the standards varied from State to State. “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” If freedom of the press is to be enjoyed, Hamilton argued, it will be because of public opinion and the spirit of the people, not because of “fine declarations.”
Finally, a bill of rights was not needed, Hamilton maintained, because the Constitution was itself a bill of rights. What protects liberty and gives it meaning and substance is the structure of government—concrete limitations on power, not parchment declarations. If a constitution—and that of the United States is such a constitution—is properly designed to check abuses of power, the government upon which it rests will in the general course of events discourage political authorities from trampling on the liberties of the people. The privileges and immunities that might be proclaimed in such a bill of rights were already embodied in the original document.
In the end, Hamilton’s view did not prevail. The ratification struggle began as soon as Congress submitted the Constitution to the States, and the Anti-Federalists steadfastly held their position that a bill of rights was essential. This issue overshadowed all others, including the issues of legislative power and representation. Although ratification was secured within nine months, the margin of victory in at least half of the States was narrow. Had the Federalists refused to budge on the bill of rights question, it is not unlikely that the proposed Constitution would have been defeated.