Many Americans praise the first ten amendments to our Constitution, collectively called the Bill of Rights, as providing the true protection of our liberty. But if the Bill of Rights had not been added on December 15, 1791 (which we now celebrate as Bill of Rights Day), would our fundamental liberties still be protected? Would the original Constitution be enough to guard our liberty?
A bill of rights was controversial during the ratification debates over the Constitution. The Anti-Federalists made it their rallying cry. Many founders, though, rejected the inclusion of a bill of rights in the Constitution. In Federalist 84, Alexander Hamilton argued that a bill of rights was, at best, unnecessary to guard liberty and, at worst, an invitation to federal overreach. Bills of rights are “stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince.”
But the Constitution is not a bargain between subjects and kings. It is a document of limited, enumerated powers, forming the architecture of our liberty. “We the people” vest each branch of government with specific powers. In Article I, Congress receives “powers herein granted” —not legislative power over everything and anything. Nowhere in the Constitution have “we the people” given Congress power to regulate speech or religion, or to police the states generally. Hamilton concludes: “it is evident, therefore, that, according to their primitive signification, [bills of rights] have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants.”
Hamilton’s larger objection to bills of rights, though, is that they “would afford a colorable pretext to claim more [powers] than were granted.” After all, he asks “why declare that things shall not be done which there is no power to do?” Hamilton’s words echo Madison’s concerns in Federalist 48 that legislatures in particular are prone to seek additional powers. Though a bill of rights may be framed as limits on legislative power, it tacitly introduces new areas of authority and federal reach.
Indeed, we see that Congress’s ambition is still a problem for limited government. Long before Obamacare, Congress showed no restraint in its legislation, addressing everything from light bulbs to orchids. True, Congress may not rely on the Constitution’s first ten amendments (or point to any other provision for that matter) to support its outlandish proposals. But Hamilton’s fears of legislative overreach, with or without Constitutional support, were not unfounded.
Ultimately, the Constitution was ratified and the First Congress amended it to include the Bill of Rights. But Hamilton’s argument was not completely ignored. As Matthew Spalding explains in A Citizen’s Introduction to the Declaration of Independence and the Constitution, the Ninth and Tenth Amendments briefly encapsulate the two-fold theory of the Constitution: “the purpose of the Constitution is to protect rights that stem not from the government but from the people themselves, and the powers of the national government are limited to those delegated to it by the people.”
The Bill of Rights is not the entire Constitution and ought not to be praised at the expense of the Articles of the Constitution, which establish the institutions and processes necessary to guard against tyranny and secure individual liberty. The Constitution itself is the chief guard of our liberties and is more important than any amendment. This Bill of Rights Day, then, let’s celebrate the whole Constitution—not just the amendments.
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