In 1787, after The United States Constitution was written, and prior to it’s ratification, in 1789, there were a considerable amount of citizens, in the thirteen respective States, who were very skeptical about ratifying this Federal Constitution, and thus creating this new Federal Government. James Madison, Alexander Hamilton, and John Jay wrote a collection of articles and essays called The Federalist – which, today, we refer to as The Federalist Papers – in hopes to gain support in favor of ratification. Conversely, a series of essays were written by a few men, writing under pseudonyms, warning against ratification, and making the case that the proposed Constitution was not sufficient in guarding against tyranny.
The anti-Federalists, as they were called, insisted that a Bill of Rights be included in this new Federal Constitution if it were to have any hope of gaining their support. Eventually, the Federalists conceded to a Bill of Rights, which would be drafted in the form of Constitutional Amendments and sent to the States for ratification once The Constitution was ratified and the first Congress was convened.
While today, The Bill of Rights is largely accepted as a critical part of our Federal Constitution, it is very interesting to read the conflicting opinions of that time, as both the Federalists and the anti-Federalists made very valid and very insightful observations. Below, I will first share the anti-Federalist point of view. Below that, I will share The Federalist point of view. After reading both, and considering the state of our Government, today, it’s not hard to see the validity of both points of view.
“Ought not a [Federal] government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage.”
Alexander Hamilton (Federalist #84):
“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? 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? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and 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. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”