Michael Lind writes: Is the Bill of Rights — made up by the first 10 amendments to the U.S. Constitution — the foundation of American liberty? So we are told by civil libertarians on the left alarmed by government surveillance programs, and by opponents of gun control on the right. The truth about the Founders and the Bill of Rights, however, is quite at odds with modern civil libertarian mythology.
The term “Founders” is ambiguous. It usually refers to the delegates who drafted today’s federal Constitution in Philadelphia in 1787, but it might as well apply to the members of the state ratifying conventions, who voted to enact it into law. In this case, it doesn’t matter, because a majority of the delegates at the Constitutional Convention rejected proposals by Virginia’s George Mason and others to include a bill of rights in the federal Constitution. The new federal Constitution was then ratified by a majority of the states, even though no bill of rights was included. Neither the drafters nor the ratifiers of the Constitution thought a bill of rights was necessary to protect American liberties.
Why did the authors of the Constitution reject proposals for a bill of rights? The Federalist Papers, written by Alexander Hamilton, James Madison and John Jay to promote ratification of the new Constitution, defends the decision of the framers of the U.S. Constitution to exclude any bill of rights.
In Federalist 84, Hamilton observes that a bill of rights, as a bargain between the people and a separate ruler, is irrelevant in a republic in which the people themselves are the collective sovereign.
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. …It is evident, therefore, that according to their primitive signification, they [i.e. bills of rights] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.
Hamilton also argues that listing some rights in the Constitution might inadvertently endanger other rights, which would be assumed to be unprotected because they were not mentioned:
I go further, and affirm that bills of rights, in the sense and in 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 which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.
Hamilton, the founder of the New York Post, did not agree that a bill of rights was necessary to protect freedom of the press:
What signifies a declaration that “the liberty of the press shall be inviolably preserved?” What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.
Hamilton concluded that the regulation of power by the federal Constitution itself, not a laundry list of specific rights, was the best protection of liberty in the new country:
The truth is, after all the declamation we have heard, that the constitution is itself in every rational sense, and to every useful purpose, a bill of rights.
James Madison, the “father of the Constitution,” shared the skepticism of the majority of the Founders about bills of rights. However, the Anti-Federalists, the opponents of a stronger federal government, were particularly influential in slave states like Madison’s Virginia, where they were inspired by some of his fellow slave owners like Thomas Jefferson, George Mason and Patrick Henry. These men were hardly precursors of the ACLU. Mason and Henry in particular objected to the federal Constitution because it did not sufficiently prevent the federal government from intervening in Southern slavery. Unlike George Washington, the only slave-holding president who freed his own slaves at his death, and a supporter of a strong federal government, Mason and Henry were hypocrites who denounced slavery in the abstract while opposing any government power that might infringe upon their despotic personal power over their own slave “property.” [Continue reading…]