At about this time in 1788, Alexander Hamilton (a.k.a. Publius) was writing Federalist Paper No. 84. His essay would later appear in a bound volume with other Federalist essays (see below). Hamilton addresses miscellaneous objections to the Constitution.
First, the Constitution “contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing” as a bill of rights (just as the New York state constitution does). Hamilton lists several examples in the text of the Constitution, including the provision that “[n]o bill of attainder or ex-post-facto law shall be passed” and that “[t]he privilege of the writ of habeas corpus shall not be suspended . . . .”
Second, Hamilton notes that the government created by the Constitution is a limited one. Adding a bill of rights to such a limited Constitution is “not only unnecessary” but it could “even be dangerous.” Why say that the “liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed” in the first place? Instead, such a bill of rights will do nothing more than to offer a “colorable pretext to claim more [powers] than were granted.”
In other words, instead of looking for an affirmative grant of power, federal officials will begin to claim the ability to do anything that was not expressly prohibited. The latter standard allows federal officials to claim far more power! Hamilton believes that the limited Constitution, in and of itself, serves as a bill of rights.
Today we know that Hamilton’s fears were justified. Our federal government no longer looks to the Constitution for an affirmative grant of power. Instead, it seems to assume it can do anything and everything not expressly prohibited.
And, let’s be honest, it does some of the prohibited things, too.
Hamilton hits a few more miscellaneous objections, in quick succession. Is it proper to confer these powers upon a national government that is so far away from so many of its constituents? Hamilton trusts that the “executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration.” The states can be relied upon to keep the federal government in line.
Oops. Except the states seem to have forgotten their function.
Further, Hamilton believes that those citizens residing nearest the seat of the government will “in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project.”
Hmm. Well, maybe he was not anticipating so many large federal bureaucracies with so many federal employees living in and around Washington, D.C.
Will the new government result in great expense, perhaps caused by “multiplication of offices under the new government”? Hamilton thinks not, but his list of possible federal departments did not foresee the advent of the EPA, OSHA, the Department of Education, or any number of other departments. He also thinks that the existence of a unified effort at the national level will, in some cases, lessen the cost of state governments.
Clearly, he did not foresee the advent of unfunded state mandates, either! But he could not know that the states would ratify the 17th Amendment, changing the selection process for Senators and removing one bulwark against such unfunded federal largesse.
In truth, Hamilton’s list is a bit depressing. It mostly reminds us of how far we have fallen from the original expectation of a limited federal government that left the states alone to govern themselves.
**** Logistical note for those who care ****
As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).