James Madison on Fortifying the Rights of the People

While opposition to the proposed plan of government ranged over a number of issues, one of the most consistent points raised by those who came to be styled Antifederalists was the absence of any protections of specifically enumerated basic rights. Both Hamilton and Madison had made arguments as Publius in the Federalist Essays (published between October 1787 and May 1788) that the Constitution would only confer certain delegated powers to the national government. Madison made this explicit in Federalist Essay number 39, when he clarified that in its federal nature, the jurisdiction of the new government would extend “to certain enumerated objects only” and would leave “to the several states, a residuary and inviolable sovereignty over all other objects.” In a letter to Thomas Jefferson dated October 17, 1788, Madison recounted that “My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice.”

Hamilton, on the other hand, explicitly opposed such a bill, arguing in Federalist Essay No. 84, that such additions could “have no application to constitutions professedly founded upon the power of the people.” Indeed, he argued, their inclusion would imply a power over any right not included or mentioned in the list, thus undermining the claim that powers not granted were retained: “They would,” he argued, “contain various exceptions to powers not granted; and on this very account, would afford colorable pretext to claim more than were granted.”

In the end, Madison’s more tactical reasoning won out and with the inclusion of the 9th Amendment, it was hoped that Hamilton’s warning might be directly addressed, noting as it does, that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And in the 10th, the rationale for the doctrine of enumeration was made explicit: “The powers not delegated…nor prohibited to the States, are reserved to the States respectively, or to the people.” Having obtained the needed support for ratification of the Constitution, Madison felt duty bound, as a representative from Virginia, to move for inclusion of a bill of rights in the House of Representatives.