Bench Memos

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The Perennial Publius, part 84


With the end of The Federalist in sight, Alexander Hamilton comes to various “miscellaneous points” in No. 84, dealing with several “remaining objections” to the Constitution.  Among these miscellany are the matter of the new government’s “expence,” with all its new offices to be filled, and the physical distance of this new, more powerful central government from much of the country, wherever its new capital will wind up being located.  But this penultimate essay by Publius is mostly noticed today for the subject with which Hamilton begins, and that takes up about half of the essay: the Constitution’s lack of a “bill of rights.”  Virginia’s George Mason, at the Constitutional Convention, had proposed the inclusion of a more detailed roster of rights and liberties in the text of the original Constitution (augmenting what already appears in Article I, sections 9 and 10), but this idea had been roundly rejected.  Hamilton, without referring to that event in Philadelphia, defends the omission here.

In light of the trouble this issue caused; the leverage it gave the Constitution’s critics to procure the inclusion of proposed amendments to the document (many of them more structural than rights-declaring) in the state ratification resolutions even as they lost their struggle against its adoption; and the eventual outcome of ten amendments added to the Constitution by December 1791–it could certainly be said that Hamilton makes a politically doomed argument here.  But is it a bad argument on the merits?  No, it’s actually pretty good.  Not unanswerable, but pretty good. 

Hamilton has several distinct arguments–about five of them, by my count.  His last two seem to me to be his best.  One is that certain provisions demanded by proponents of a bill of rights–”liberty of the press,” for instance–are so vague as to be fairly pointless.

What is the liberty of the press?  Who can give it any definition which would not leave the utmost latitude for evasion?  I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.  And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights.

That other occasion was the previous essay, No. 83, as we saw yesterday.  And already Hamilton has transitioned here to his final argument, which he subsequently restates: that “the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”  Its institutions; the kind of popular government it calls into existence; the kind of democratic society it fosters to undergird that government and those institutions; the kind of citizenship it teaches to the individuals in that society–these are the real sources of security for freedom.  “Public opinion” will secure private freedom.  (Notice that Hamilton does not assume that “liberty of the press” will become the business of the courts to define and enforce, even if it is enshrined in the Constitution.  Interesting, that.)

Hamilton’s now-departed partner in The Federalist, James Madison, appears to have been fully in accord with him on these kinds of arguments.  As explained in the best book yet written on the origins of the bill of rights, Robert A. Goldwin’s From Parchment to Power (1997), Madison came to see the political utility of adding some rights-declaring amendments to the Constitution.  They were useful in settling a short-term controversy, and could even have a salutary impact on public sentiment over the long haul.  But the Constitution’s surface institutions, and the deep republican structures beneath those institutions and fostered by them, were the real key to America’s enduring freedom.

(For explanation of this recurring feature, see here.)


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