Federalist #84 Specifically the Need for a Bill of Rights

Originally appeared on the Bastrop GOP website

The idea of a Bill of Rights was particularly important during the Ratification of the Constitution but there were some (Federalists) who held that it was not necessary because the Constitution itself was a limiting document therefore the national government was not in a position to take rights away. The Anti-Federalist argued for a Bill of Rights and made this a condition of ratification. They felt that even if the Constitution were a limiting document, which would not stop a right from being taken away.

In Essay #84 of the Federalist Papers, Alexander Hamilton argues that a Bill of Rights is not needed in the Constitution using a specific argument: “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws and TITLES OF NOBILITY, to which we have no corresponding provisions in our constitution, are perhaps greater securities to liberty than any it contains.”  While the argument is true in some respects, it is also false in the extent that the Constitution is both limiting and unlimited depending on the conditions present at the time a right would come under question.

Hamilton is correct that habeas corpus is protected unless there is a crisis, but it is the second and third part of this particular argument that fails to protect the rights of citizens.

The second part of the argument, the prohibition of ex post facto laws, is questionable on whether this stops the usurpation of rights by the government. I contend it is not a mechanism to stop the usurpation of rights because an ex post facto law only prevents a person from being prosecuted for an act that was not a crime at the time said act occurred. It doesn’t prevent the government from suppressing rights in the future. It doesn’t present an absolute protection of individual rights. For example, without the second amendment’s protection of the right to bear arms, Congress could make a law prohibiting private ownership of a gun on the basis that people commit murders with guns and for the common defense of the union, we have to confiscate all privately owned guns. Ex post facto would say prosecution of those individuals who own guns prior to the effective date of the law is unlawful but it doesn’t prevent a right from being taken away. Since the Constitution has unlimited powers with regards to common defense, government officials could use that loophole to increase their powers over the people. Without some types of prohibitions, the government can look to increase their power by making it more difficult for the individual to protect themselves from government overreach because rights taken away will be done in the name of common defense.

Continuing on to the third part of this particular passage, Hamilton makes his argument that the prohibition of titles of nobility protects the rights of the people. Hamilton knows that the people fear the implementation of an aristocracy because of the inherently oppressive nature of that system, and he assures the people that because the constitution prohibits this, no perceived rights will be taken away. However, Hamilton is a student of human behavior and has spoken in previous papers of ambitious or rapacious men who will do what they can to obtain power. The question now becomes, do they need that title of nobility to take away rights? The answer is a resounding no; all they would need is a perceived crisis to use the common defense loophole to gain more power over the individuals. As Hamilton has pointed out on several occasions, in past papers, human nature is such that passion for some objective will lead to the ambitious pursuit of that objective (no title of nobility necessary) to fulfill the ambition of attaining power. Hamilton knows this but it appears he chooses to ignore it and only focuses on the people’s fear of an aristocracy. Could this be because his own personal preference is towards a strong central government with a monarch like executive?

Hamilton, who by nature is biased towards a strong central government, understands the importance of unlimited powers, and does not want that subverted by a bill of rights which could bring the government to a halt when dealing with different issues. But without some type of delineated rights, a distrust of government could form and manifest itself in such a way as to cause the creation of factions (who distrust government) to spring up and threaten the stability of the union. This could ultimately lead to disunion and anarchy which is antithetical to the intent of the founders – Hamilton included. Hamilton must know this and yet he refuses to acknowledge that such a thing could happen.

Hamilton’s opposition to a bill of rights is perplexing, especially in light of his ultimate objective which is the preservation of the union and the assurance of prosperity. Ultimately his opposition to the Bill of Rights would be a moot point because his Federalist Papers co-writer, James Madison, would assume the issue in Congress and worked to get a Bill of Rights passed. In the years that followed, rights have been protected because of the passage of the Bill of Rights; most recently with the Bruen decision regarding the right to bear arms and the overturning of Roe v Wade which returned power to the state thus protecting the states abilities to regulate those issues which do not fall under the purview of the national government.