#84: No rights? No problem.

Hamilton approaches the end of the monumental collection of Federalist essays with #84, which he promises will be the last one, stating, “I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.” But he can’t manage it, and so he wrote one more after this and #85 is actually the last.

Of all the important issues so far unaddressed, the biggest, Hamilton says, is the lack of a bill of rights. He admits there is no particular section in the Constitution where all the important individual rights are collected, yet he claims that important rights can be found scattered throughout the document. The section about Congress (Article 1) limits the penalty for impeachment to nothing harsher than removal from office. That same article prohibits Congress from suspending habeas corpus (except under conditions when suspending habeas corpus is allowed!), and from awarding titles of nobility.

This strikes me as an example of rhetorical deflection. Hamilton devotes quite a bit of space to his comments about the provisions in the Constitution. They are not unimportant, and his comments are fair and accurate. But he aims to exhaust readers’ attention span by focusing on the rights that ARE in the Constitution, so they will lose interest and forget to notice what is NOT in the Constitution.

Hamilton moves on to say that, historically, bills of rights were created to restrain the power of a king. He says in America’s case, there is no need because in America the people have all the power from the start:

Here, people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

Not content with saying a bill of rights is unnecessary, Hamilton goes further and says a bill of rights is a bad idea.

I go further, and affirm that 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 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?

Hamilton is suggesting that if the Constitution writers had listed the personal rights that American citizens have, future tyrants could interpret anything missing from the list as NOT a right. He says it is better to leave the rights unlisted. This argument is based on a legal principle called, Expressio unius est exclusio alterius, which means “To express one thing excludes other things.”

Imagine a kid asking his mother if he can have a snack. If she says, “Sure!” the kid can reasonably eat anything in the kitchen. But if the mother say, “You can have a cookie!” then the kid can have a cookie, but nothing else.

Hamilton pays special attention to freedom of the press, claiming that, as the Constitution gives no power to Congress to rule over the press, the press can assume itself to be totally free and in no danger. This promise lasted 10 years. In 1798, Congress passed The Alien and Sedition Acts, which prohibited "any false, scandalous and malicious writing" against Congress or the president. Several newspaper editors and one hothead Vermont Congressmen were prosecuted under the Sedition Act.

Hamilton’s assurance the no specific bill of rights was needed was ignored. James Madison wrote 12 amendments soon after the convention and tried to get states to approve them along with the Constitution. That didn’t happen. But as soon as George Washington was established as president, Congress adopted 10 of Madison’s 12 amendments, packaged it as “The Bill of Rights,” and by December of 1791 it had become law.

Hamilton said in #84 that newspapers could never be persecuted by government because the Constitution doesn’t given Congress power to regulate the press. But it happened. What’s more, it happened after the Bill of Rights (includes the 1st Amendment saying, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”) was adopted. So not only was Hamilton’s promise that the press was safe without explicit Constitutional protection false – the press wasn’t even safe after explicit protection was given.

One must really wonder if Hamilton was naïve enough to believe that unexpressed rights of the people would be respected by governments in power, or if he knew they wouldn’t be and was simply being sneaky. And one wonders the same thing about the next topic Hamilton takes up, which is the expense of the expanded national government. He says the national government under the Constitution will remain small:

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old.

In year 2020, more than 2.8 million people work for the national government. Hamilton couldn’t be expected to anticipate that much government expansion. But, he shouldn’t have claimed that the short list of government employees that existed in 1787 would “suffice under the new as well as the old.” Assuming that the future will be the same as the past is a logical fallacy. And anyway, Hamilton knew the new national government was going to be much more active than the old one.

The national government has grown from just three cabinet positions under George Washington to 15 cabinet offices and tens of thousands of bureaucrats today. Perhaps more to the point, Hamilton’s assurance that the growth in national government jobs would not add to the public burden since the national government jobs would simply replace and offset state government jobs. The reality in 2020 is that thousands of state and local government workers are needed just to keep track of regulations from Washington and gather evidence of compliance.

Discuss:

• The adoption of the Bill of Rights in 1791 is perhaps the best evidence of the Constitution growing and improving with time. What other up-dates and improvements can you mention?

• What further updates are needed today?

• Why did I use a detail from Peter Paul Rubens’ Daniel in the Lions’ Den as the thumbnail for this essay? (I don’t know.)