Friday, November 04, 2005

Hamilton: Man, Myth, Legend

For those of you who look to the Constitution for a right to privacy, or a right to be the exclusive source of sexual education for your children, realize that Hamilton's fears have come to pass:

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? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

The point being: why put in a Bill of Rights to prohibit an action by the Federal government for which the Federal government has not been given the power? Why put in a Bill of Rights stating that the Congress cannot pass a law prohibiting the free exercise of religion when the three listed powers of the Federal Government do not provide for regulating religion?

Why should we look to the Bill of Rights (a misnomer if I ever heard one) to determine if we, the people, have the right to do something? The Bill of Rights is a list of specific prohibitions on Federal Government action, not a listing of our rights...

Read the whole thing. Federalist Paper 84 here.


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