Bill of Rights or Bill of Limitations?

The Bill of Rights

It seems so granted today, having a bill of rights. But it was not a certain thing to happen after the Constitution was finished in 1787. Some of the prominent delegates actually argued against it, such as  Alexander Hamilton in the Federalists Papers (Federalist 84 & 85).

Why would they argue against a Bill of Rights? Did they not want to ensure all Americans had these so elemental and as Thomas Jefferson stated inalienable Rights? Did they fear the People? Well, simply No. They did want the people to have these rights, they did not fear them, but respected them and their wisdom. But why did they did feel a Bill of Rights was not needed? Part of the answer can be found in the second paragraph of Preamble of the Bill of Rights itself.

 

"The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.".

The belief was, the Government did not have the power to take or limit these rights in the first place, why do they need to be protected? Why again tell the Government what it can not do, when it does not have the power to do it in the first place?

Alexander Hamilton

The Bill of Rights enumerates certain rights, but in no means is was that meant to be the limit of rights the people posses. It does not state a parents right to raise a child, yet it exists. It does not state you have the right to grow food for yourself, but you can. The Bill of Rights lists very specific rights, not to enumerate what WE the People can do, but to say what the government CAN'T do, as expressed in the preamble, "...to prevent misconstruction of the abuse of its powers, that further declaratory and restrictive clauses should be added". Nowhere in the Preamble or the 12 Amendments listed on it (12 were ratified by the Congress with only 10 being ratified by the states by 1791) do they mention any of these as a limitations or restrictions on the people, but it does specifically state that are and what Congress may NOT do on numerous occasions.

The Rights listed were chosen for reason, by a simple question, "What would a tyrant want?". When that question was answered, the Bill of Rights is what we ended up with. A Tyrant would want you to not speak out against him, in writings, speech or in groups(assemblies). A Tyrant would want to control Religion, in either believing their own, or not at all. A Tyrant would fear an armed populous. A Tyrant could quarter troops for fear and intimidation. A tyrant would not respect your property or privacy, even more so if you were deemed a criminal. A tyrant would require you to "confess" your crime, and if the charges we false, not be given the ability to confront the witness, or let your peers decide you guilt and be represented. A tyrant would impose harsh, or cruel penalties for simple crimes (like speaking out) if you even had a trial at all, or at the least one was in the foreseeable future. A tyrant would not let you claim grievance for lost property to the state, or to one of their "officials", nor would they respect your claim to property. A tyrant will not hold his "loyal" followers to the same standards as they would you, nor would you have the same protections as them. A tyrant will always attempt to claim power not yet theirs. Many, if not all of these we still see tyrants do today, and in 1789 it was still fresh on the drafters minds, since this is what King George had done to the Colonies.

The Bill of Rights was never meant to enumerate the Powers the People have, rather it was meant to enshrine the most important ones needed for a free people, the ones oppressed people do not have. As Alexander Hamilton stated in Federalist 84,

"It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people.".

In the eyes of the Founders, the Government NEVER had the power to take any of these away in the first place, nothing in the Constitution (as it was seen in the eyes of the time) gave the government to the power to restrict any of these rights to begin with. This sentiment is again seen in Federalists 84, 

"For why declare that things shall not be done which there is no power to do?"

But the Constitution had a very difficult time in the ratification debates, and was in doubt if it would be ratified. The Anti-Federalist believed it gave too much power, and one of their biggest contentions was a lack of a Bill of Rights. In order to gain ratification, it was agreed by the states to ratify a Bill of Rights upon the ratification of the Constitution. Several states submitted their own proposed amendments, which lead to a basis of what was to be included. But even in those debates in the states and in Congress, the view of a the Bill of Rights was not to announce what rights the people solely had, but to announce what rights they can never touch.

Madison arguing for the Bill of Rights.

One of the fears of having a bill of rights is summed up in Federalist 84,

"(I)affirm that Bills of Right, in the sense ans to the extent in which they (anti-Federalists) content 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 affords a colorable pretext to claim more than was granted".

 Through 229 years since the Bill of Rights was ratified, it went from a Document to limiting power of Government to a Document limiting the rights of the people through its enumeration. More and more today, you may see people (your neighbor, friend, family member, pundit or politician) note something is not in the Bill of Rights, so the government can do it.

But when we go back to why it is here, just remember, the answer is is the Bill of Rights tells us why it is here in the first place,

"to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added",

and when you combine this with the Preamble of the Constitution, "

We the people...do ordain and establish this Constitution. ",

it is readily clear, the people are the source of power, and the Bill of Rights was another mechanism along with the Constitution to limit the power of the Government, and NOT limit the rights or even enumerate the Rights of the People.

The Bill of Rights was a mechanism to enshrine certain things for all time, to forbid the Government from ever infringing on them, and should always be protected to the highest.