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When No Power Is Given By Which Restrictions May Be Imposed?

“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.”

– Alexander Hamilton (Federalist #84)

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4 Comments To "When No Power Is Given By Which Restrictions May Be Imposed?"

#1 Comment By Thomas Fleres On April 12, 2014 @ 1:20 pm

It looks like Hamilton turned out to be correct on this argument. It seems to me that the majority of the populace, and without question the legislators, look at the constitution as to what is specified as rights; while completely ignoring if the government was even enumerated with power to interfere with that right to begin with.

#2 Comment By Mark Ross On April 12, 2014 @ 1:32 pm

Thomas, I don’t agree, necessarily, with Hamilton’s belief that a Bill of Rights was unnecessary. I do, however, completely agree with him that, The Bill of Rights not only could, but did “furnish men disposed to usurp,” a plausible pretense for claiming that power.

Nothing in The Bill of Rights grants a single right – let alone confer some Power to ANY part of The Federal Government to regulate them; rather, those Amendments were written to protect certain unalienable rights from the Federal Government – including The Supreme Court.

#3 Comment By Mark Ross On April 12, 2014 @ 1:40 pm

There is no way, however, of knowing if anything would be different if The Bill of Rights were never added. The rights, explicitly protected by The Bill of Rights, seems like the only substantial part(s) of The Constitution that actually limits, in some ways, this once Federal Government.

#4 Comment By Mark Ross On April 12, 2014 @ 1:58 pm

Had a Bill of Rights not been guaranteed to The anti-Federalists, then, The U.S. Constitution may have never been ratified, and thus, no Federal Government created.