On this day in 1787, an author writing under the pseudonym “Brutus” writes his second contribution to the anti-Federalist Papers. These papers argued against the new Constitution, then being considered for ratification by the states.
Brutus notes the importance of the task facing Americans. After all, the Constitution under consideration is to govern not only this generation, but also “generations yet unborn.”
Brutus begins with observations about the nature of civil government. No man has a “natural right” to authority over another. To the extent that “natural freedom” is to be yielded, it is because individuals choose to do so in order to form a new government. “But it is not necessary,” he adds, “that individuals should relinquish all their natural rights.” To the contrary, “[s]ome are of such a nature that they cannot be surrendered.” Brutus lists several examples, such as the “rights of conscience, [and] the right of enjoying and defending life, etc.” Given these principles, any Constitution should begin by “expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with.”
After all, rulers “have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another.” Those who govern “have been found in all ages ever active to enlarge their powers and abridge the public liberty.”
Brutus remains astonished that “this grand security, to the rights of the people, is not to be found in this constitution.” Why was no Bill of Rights proposed by the delegates to the Constitutional Convention?
Brutus acknowledges the arguments that every power not given to the federal government is reserved. But he believes that reasoning to be unsound. “The powers, rights, and authority, granted to the general government by this constitution,” he concludes, “are as complete, with respect to every object to which they extend, as that of any state government . . . There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.”
He runs down a list of several rights that he believes to be insecure in the new government, particularly certain rights during criminal prosecutions. Brutus is cynical about the reasons offered by the Founders for omitting a Bill of Rights. Why did they include provisions declaring that the writ of habeas corpus may not be suspended? Or that no bill of attainder may be passed? “If every thing which is not given is reserved, what propriety is there in these exceptions?” Brutus worries that the “only answer that can be given is, that these are implied in the general powers granted.” Thus, if we need protection against the abuse of one, we need protection for the others, too.
Brutus ends on a very pessimistic note: “I cannot help suspecting, that persons who attempt to persuade people, that such reservations were less necessary under this constitution than under those of the states, are wilfully endeavouring to deceive, and to lead you into an absolute state of vassalage.”