I brought up this topic months ago and had the opportunity to lead a discussion about it at the Arizona chapter of the Republican Jewish Coalition. Please join the conversation in the comments sections below.
Anti-Federalists demanded a bill of rights, BUT…
There was disagreement about what a bill of rights should contain. James Madison in Federalist No. 28 wrote about the Anti-Federalists opposition to the Constitution:
A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced…
Some Anti-Federalists opposed the Constitution even after a bill of rights was promised. For them, a bill of rights was just a way to oppose ratification.
The Articles of Confederation had no bill of rights.
Four state constitutions, including that of New York, lacked bills of rights even though the states had been acting as independent republics for years.
Hamilton opposed a bill of rights
I go further, and affirm 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. 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?
Madison had a mixed opinion regarding bills of rights
There are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution… My own opinion has always been in favor of a bill of rights… At the same time I have never thought the omission a material defect… I have not viewed it in an important light.
In a letter to Jefferson, Madison lists four reasons a bill of rights was not needed:
because I conceive that in a certain degree… the rights in question are reserved by the manner in which the federal powers are granted.
because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are ever likely to be by an assumed power.
because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.
because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State… Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
Upon introducing the Bill of Rights, Madison said:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it.
Madison attempted this with the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Did Madison succeed with the Ninth Amendment?
Were the arguments against a bill of rights valid then?
Are they valid today?
Have our rights been effected positively, negatively, or not at all by the Bill of Rights?
Should we focus the debate on protecting our individual rights or on limiting the government’s powers?
– Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July.