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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.
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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 it implies “that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”
I believe that Hamilton's argument against a bill of rights, in its basic sense, was that the federal government could only act where its power had been plainly spelled out in the constitution. I thoroughly disagree with Hamilton and find his arguments unconvincing. In order to reach his conclusions it seems as if he was looking the lens of his day and not through the lens of the future, like so many of his colleagues. To me it seemed as if Hamilton’s reasoning did not include, taking into consideration, that at some point the majority opinion of the American people or its officials may not be correct. Although the constitution is a living document, which means if the will is so strong provisions may be added.
I am convinced that the founding fathers would not be thrilled with some of the decisions that some of our judges have made. Nor would they be happy with how far some state, local, and federal governments have exceeded constitutionally enumerated powers, despite the bill of rights constraints against it. Although without bill of rights to constrain them, our judges and officials would have made even more damaging decisions for our country based solely on their political ideology, not the constitution.
Hamilton believed that since the government is the same as its people, the people didn’t need a bill of rights, while I like the fact that Hamilton appreciates the will of the people, sometimes the people have been wrong. Most recently, in American history, being the civil rights struggle of the 1960’s. Going over the bill of rights, it would be easy to find rights that would be jeopardy or not enforced depending on which political ideology is in power. Most noticeably is the second amendment, where even some cities such as Washington D.C. prohibit their citizens to own firearms, while in direct contradiction with the constitution. Written into the 1st amendment, it states that the Congress shall make no law abridging the freedom of speech, but the McCain Feingold campaign reform bill clearly does just that. Again while I disagree with Hamilton with the exclusion of a bill of rights from a constitution, the enforcement and interpretation of them seems to be still in question.