Is the Bill of Rights Necessary?

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By Dan Goodman,

The Bill of Rights to our Constitution caused — and still causes – some contradiction, confusion and danger with the Constitution itself. It is unfortunate that a bill of rights was included with the Constitution. Due to a general misunderstanding about the Constitution at the time of its ratification, a bill of rights was added to the Constitution in order to obtain ratification of the Constitution itself:

“In the course of the foregoing review of the Constitution I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed. … The most considerable of these remaining objections is that the Constitution of the convention contains no bill or rights.” Alexander Hamilton, Federalist Papers #84.

Indeed, during the convention itself, a motion to prepare a bill of rights to the Constitution was “passed unanimously in the negative.” September 12, 1787; Notes Of Debates In The Federal Convention Of 1787 Reported By James Madison.

But why no bill of rights?

“A minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the barons, sword in hand, from King John. Such was the subsequent confirmation of that charter by subsequent princes. Such was the Petition of Right assented to by Charles the First in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament called the Bill of Rights.

It is evident, therefore, that, according to primitive signification, they 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 everything, they have no need of particular reservations.

The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful, a bill of rights. The several bills of rights in Great Britain form its Constitution; and conversely, the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union.” Alexander Hamilton, Federalist Papers #84.

However, in the debates of the state conventions, the most criticized feature of the Constitution, voiced by the opposition, was the lack of a bill or rights:

“One criticism repeatedly advanced (against the Constitution) was the absence of a bill of rights. This matter had been discussed very briefly on the floor of the Philadelphia Convention, where George Mason had introduced a resolution, supported by Elbridge Gerry, to appoint a committee to prepare a bill of rights. Roger Sherman had replied briefly that the various state constitutions already had bills of rights, which should prove sufficient under the new government, and Mason’s motion had then been defeated 10 to 0. But in the ratification controversy, absence of a federal bill of rights became a focal point of attack upon the Constitution by the Antifederalists, who pointed out that since the new government had a sphere of sovereignty of its own and functioned directly upon individuals, the absence of a bill of rights prepared the way for encroachments upon the liberties of the people.

The absence of a bill of rights proved a bargaining point for the Federalists in some of the state conventions, for they were able to pledge the adoption of a new bill or rights by amendment once the new government was established. In several conventions, among them those in Massachusetts, New York, and Virginia, the Federalists at the last moment won over certain moderates in the opposition with this understanding. Several of the state conventions submitted proposed amendments containing bills of rights at the time that they ratified. These were made the basis of the first ten amendments to the Constitution, adopted by Congress in 1789 and by the states within two years after the establishment of the new government.” The American Constitution; Its Origins And Development, 5th Edition, by Alfred H. Kelly and Winfred A. Harbison, 1976, pp. 142-143.

And what danger did and does the Bill of Rights present with the Constitution itself?

“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 which are 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 Papers #84.

To maintain the integrity of the Constitution an amendment was drafted and included in The Bill of Rights. It reads:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Amendment 9, Constitution of the United States.

Its inclusion was to prevent the rights listed in the other amendments (as well as those amendments which have been added since then) from being construed as the only rights of the people.¹ Indeed, the constitutional operation of the federal government would be exactly the same if The Bill of Rights were not there at all.

However, The Bill of Rights is a part of the Constitution. A result of a comprise based upon a misunderstanding of the Constitution itself.

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¹ See Griswold v. State of Connecticut: 381 U.S. 479, 486-493, at footnote 4 (concurring opinion of Justice Goldberg, The Chief Justice, and Justice Brennan) [1965] get case

© 1993 Daniel Joseph Goodman

Questions? Comments! xGoodmanx@excite.com

Dan Goodman, known as J.D. Goodman or “J.D.” is a legal researcher. Other articles authored by “J.D.” relating to the area of law are, How Well Do Know The Constitution and State Citizenship Is Alive And Well.

Like doing your own legal research. I invite you to try my website, The Legal Connection, at http://www.angelfire.com/nb/thelegalconn/index.htm.

This article is written to provide accurate and authoritative information in regard to the subject matter covered. It is written with the understanding that the author is not engaged in rendering legal, accounting, or, other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

The author, therefore, disclaims any responsibility for any liability or loss incurred as a consequence of the use and application, either directly or indirectly of any information presented herein.

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