Why in the World Would Alexander Hamilton Be Against a Bill of Rights?

In Federalist #84, Alexander Hamilton famously argued against a Bill of Rights to the United States Constitution. Why would he do this? Did he believe that Freedom of Speech SHOULD be abridged, or that people had NO RIGHT to be secure against unreasonable searches and seizures? Well, his opposition to the addition of a Bill of Rights to the Constitution could be seen that way, but it appears that he felt that a Bill of Rights would be unnecessary, and perhaps even dangerous.

Hamilton worried that a Bill of Rights “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.”

Thomas Jefferson, long a political opponent of Hamilton, believed strongly in adding a Bill of Rights. “A bill of rights is what the people are entitled to against every government on earth.” At first Madison, generally regarded as the primary author of the Constitution, agreed with Hamilton. Madison argued that a Bill of Rights would merely be a “parchment barrier” that an overbearing majority would violate regardless of written protections for minority rights. He also believed that a large republic would have many contending factions that would prevent a majority from violating the rights of minorities.

Madison finally ended up siding with Jefferson, against Hamilton’s position. He argued for a Bill of Rights, as much for political reasons as any, without which Rhode Island and North Carolina would not have joined the union. He said that a Bill of Rights would “expressly declare the great rights of mankind secured under this constitution.” Madison wanted a total of nineteen amendments to be woven into the text of the Constitution, not simply affixed to the end of the document. One of those nineteen was designed to protect citizens from violations of their religious freedom, a free press, and trial by jury by state governments. This amendment wasn’t passed because it was seen to be unnecessary, since all the state governments already had their own Bills of Rights. As it turned out, this amendment originated a significant part of the Fourteenth Amendment, which finally was enacted almost 90 years later as a result of the Civil War.

Hamilton was against the Bill of Rights because it allowed potential usurpers of power a pretense to claim such power. Jefferson believed the Constitution would not fully protect people’s unalienable rights without an included Bill of Rights. Jefferson won this battle, but may have in the long run allowed just the colorable pretext to the claim of power that they both feared. Nowadays we tend to think in terms of what the government can do, not what it can’t. The founding fathers surely meant to give the government the power to do only what it is told it may do, rather than any power besides which it is told it may not do.