Bill of Rights: To Be or Not To Be?
Written: October 8th, 2014.
Humanity is separated from most everything else in the universe, not by size or beauty, but by intrinsic value and worth, something that inheres itself in each and every human being. It is on this basis that mankind’s unalienable rights may be founded. Federalists, those who supported the ratification of the Constitution, and anti-Federalists, those who did not, accepted this truth. But one of the many questions debated between them was whether or not the Constitution should include a comprehensive statement of those rights, a Bill of Rights. The anti-Federalists presented stronger, more persuasive arguments for their position, as Congress later came to agree.
Even so, Federalist arguments must still be presented and analyzed. Primarily, a Bill of Rights was taken to be unnecessary because the Constitution already included provisions securing the rights of the people. For example, it mentions the writ of habeas corpus (protection against wrongful imprisonment), and prohibits ex post facto laws (being prosecuted for an act legal at the time, but later declared illegal). Secondly, Federalists claimed the Bill of Rights was not only unnecessary, but dangerous even, for it would lead to the impression that the national government could disregard all rights not stated. After all, no anti-Federalist claimed that a list of each and every one of the people’s liberties could be compiled. Thirdly, the limited power of the government created by the Constitution was taken to be a sufficient protection of the people’s rights.
Anti-Federalists met argument with argument. Firstly, they contended that given the necessary and proper clause of the Constitution, the so-called “elastic clause”, the national government had the implied power to violate all rights not mentioned in it, if they deemed it necessary to carry out one of their enumerated powers. Why, for example, could the federal government not restrict the people’s freedom of speech, if it be pronounced “necessary and proper”? Secondly, it was argued that even if there were some system in place to protect the people’s liberties, “the people’s rights” would still be ambiguous and undefined. Thirdly, eleven out of the thirteen then-current state constitutions contained a Bill of Rights. If the American people felt their entitlements must be protected from state governments, they must also be protected from the more powerful federal government.
As with all struggles, only one side could win out, and it was the anti-Federalists. Consider the arguments proffered by the Federalists. First, the argument from lack of necessity is particularly weak because the people’s Constitutional liberties are few and far between, and the stated rights themselves are very general, and in terms of their power to protect the people’s liberties, very weak. Second, the argument from lack of rights fares no better. In the first place, if in the future the American people feel that a right not mentioned in the Bill of Rights is being violated, there is a system in place by which it may be added to. In the second place, included within the Bill of Rights is an amendment guaranteeing protection of all other liberties not stated, the analogue of the elastic clause. In the third place, such an objection undermines the Federalist’s own case, for the Constitution only mentions three of the people’s rights, leaving out many others. Third, the argument from limited government is by far the weakest. What’s needed to be shown is that the power of the government is limited in such a way that it can’t be used to infringe on the people’s liberties. And without a Bill of Rights, this cannot be done.
Consider next the arguments presented by the anti-Federalists. First, the argument from the elastic clause stands. Federalists responded by claiming that there just are no conceivable situations in which the government could justifiably disregard the people’s rights in order to carry out one of its enumerated powers. But this is surely false. For example, two enumerated powers are “[t]o declare War…and…[t]o raise and support Armies” (U.S. Const. art. I, § 8, cl., 11-12). Perhaps in the process of carrying this out, the national government uses the elastic clause to justify silencing all who speak out against the war. Surely such a situation is at least possible. Second, the argument from ambiguity was never given a response by the Federalists, so it stands as well. Third, the argument from state constitutions is reasonable. The Federalists replied by arguing that if state constitutions contain a Bill of Rights, then it becomes unnecessary for the national government to include one as well, for state governments will protect against infringement by the federal government. But given the supremacy clause, the federal government would always trump the state were disagreement to arise. With three strong arguments on the side of the anti-Federalists, and no comparably strong arguments on the side of the Federalists, Shakespeare’s question may be answered: to be!
Humanity is separated from most everything else in the universe, not by size or beauty, but by intrinsic value and worth, something that inheres itself in each and every human being. It is on this basis that mankind’s unalienable rights may be founded. Federalists, those who supported the ratification of the Constitution, and anti-Federalists, those who did not, accepted this truth. But one of the many questions debated between them was whether or not the Constitution should include a comprehensive statement of those rights, a Bill of Rights. The anti-Federalists presented stronger, more persuasive arguments for their position, as Congress later came to agree.
Even so, Federalist arguments must still be presented and analyzed. Primarily, a Bill of Rights was taken to be unnecessary because the Constitution already included provisions securing the rights of the people. For example, it mentions the writ of habeas corpus (protection against wrongful imprisonment), and prohibits ex post facto laws (being prosecuted for an act legal at the time, but later declared illegal). Secondly, Federalists claimed the Bill of Rights was not only unnecessary, but dangerous even, for it would lead to the impression that the national government could disregard all rights not stated. After all, no anti-Federalist claimed that a list of each and every one of the people’s liberties could be compiled. Thirdly, the limited power of the government created by the Constitution was taken to be a sufficient protection of the people’s rights.
Anti-Federalists met argument with argument. Firstly, they contended that given the necessary and proper clause of the Constitution, the so-called “elastic clause”, the national government had the implied power to violate all rights not mentioned in it, if they deemed it necessary to carry out one of their enumerated powers. Why, for example, could the federal government not restrict the people’s freedom of speech, if it be pronounced “necessary and proper”? Secondly, it was argued that even if there were some system in place to protect the people’s liberties, “the people’s rights” would still be ambiguous and undefined. Thirdly, eleven out of the thirteen then-current state constitutions contained a Bill of Rights. If the American people felt their entitlements must be protected from state governments, they must also be protected from the more powerful federal government.
As with all struggles, only one side could win out, and it was the anti-Federalists. Consider the arguments proffered by the Federalists. First, the argument from lack of necessity is particularly weak because the people’s Constitutional liberties are few and far between, and the stated rights themselves are very general, and in terms of their power to protect the people’s liberties, very weak. Second, the argument from lack of rights fares no better. In the first place, if in the future the American people feel that a right not mentioned in the Bill of Rights is being violated, there is a system in place by which it may be added to. In the second place, included within the Bill of Rights is an amendment guaranteeing protection of all other liberties not stated, the analogue of the elastic clause. In the third place, such an objection undermines the Federalist’s own case, for the Constitution only mentions three of the people’s rights, leaving out many others. Third, the argument from limited government is by far the weakest. What’s needed to be shown is that the power of the government is limited in such a way that it can’t be used to infringe on the people’s liberties. And without a Bill of Rights, this cannot be done.
Consider next the arguments presented by the anti-Federalists. First, the argument from the elastic clause stands. Federalists responded by claiming that there just are no conceivable situations in which the government could justifiably disregard the people’s rights in order to carry out one of its enumerated powers. But this is surely false. For example, two enumerated powers are “[t]o declare War…and…[t]o raise and support Armies” (U.S. Const. art. I, § 8, cl., 11-12). Perhaps in the process of carrying this out, the national government uses the elastic clause to justify silencing all who speak out against the war. Surely such a situation is at least possible. Second, the argument from ambiguity was never given a response by the Federalists, so it stands as well. Third, the argument from state constitutions is reasonable. The Federalists replied by arguing that if state constitutions contain a Bill of Rights, then it becomes unnecessary for the national government to include one as well, for state governments will protect against infringement by the federal government. But given the supremacy clause, the federal government would always trump the state were disagreement to arise. With three strong arguments on the side of the anti-Federalists, and no comparably strong arguments on the side of the Federalists, Shakespeare’s question may be answered: to be!
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