Alexander Hamilton: Federalist 84

Explanation and Analysis of the Document

The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. The purpose of the convention was to amend the Articles of Confederation, the document under which the United States had been operating since independence from Great Britain. The articles, however, were not working. A considerable amount of interstate conflict had arisen, and it was apparent to the nation's leaders that the Articles of Confederation granted too much power to the individual states and not enough to the federal government. Many of the delegates to the convention, among them Alexander Hamilton and James Madison, arrived in Philadelphia with the intention not just of amending the articles but of creating an entirely new constitution. The convention, though, was marked by bitter debate. Some members of the convention left before the closing ceremonies. Three others refused to sign the new document. As the remainder of the delegates returned to their states to urge ratification, they knew that no one was entirely happy with the document.

A key sticking point in some states was the Constitution's omission of a bill of rights—provisions that would explicitly protect the rights of free speech, religion, freedom of the press, trial by jury, the bearing of arms, protection against self-incrimination, illegal search and seizures, cruel and unusual punishment, and the like. Even during the convention, many delegates argued that the Constitution was incomplete without provisions that would ensure the individual liberties of citizens. In the months after the Constitution was submitted to the states for ratification, debate in some of the states was intense. Although some states quickly ratified the Constitution, it was by no means certain that the necessary nine out of thirteen states would do so. Virginia, New York, and Massachusetts, in particular, were the scenes of contentious debate. Virginia, over the objections of Patrick Henry and others, finally ratified the Constitution on June 25, 1788, becoming the ninth of the thirteen, but the state submitted with its ratification a series of recommended amendments that were in effect a bill of rights. New Hampshire and New York took similar steps, as did Massachusetts, which insisted that the first U.S. Congress immediately pass a bill of rights.

In the debate over ratification, numerous pamphlets and newspaper articles appeared taking one position or the other. Among them were eighty-five papers, most of which were published in the Independent Journal and the New York Packet from October 1787 to August 1788. They were then collected in book form as The Federalist in 1788. These papers, the work principally of Hamilton and Madison (and, to a lesser extent, John Jay), were written in response to other published articles opposing ratification of the Constitution in New York. Collectively, the Federalist Papers provide historians with crucial insights into the theories of government held by the nation's Founders.

To take up the issue of a bill of rights, Hamilton wrote number 84, published on May 28, 1788, and titled “Certain General and Miscellaneous Objections to the Constitution Considered and Answered.” Hamilton opposed the inclusion of a bill of rights—or at least opposed making ratification of the Constitution contingent on its inclusion. In this excerpt, Hamilton bases his opposition to a bill of rights on three major arguments. The first is that various articles of the Constitution contain provisions that protect individual liberties. He cites, for example, Article 1, Section 9, Clause 2, which protects the writ of habeas corpus—the right of a suspected criminal to have charges specified. Similar provisions in the Constitution protect individuals against bills of attainder (legislative acts that declare a person or classes of persons criminals without giving them the benefit of a trial) and “ex-post-facto laws” (laws that retroactively criminalize an act). In sum, Hamilton argues, a bill of rights is not needed because the structure of the Constitution itself protects people against “tyranny.”

In his second argument, Hamilton takes up the history of such bills of rights in England, including the Magna Carta (1215), the Petition of Right (1628), and the Declaration of Right (English Bill of Rights, 1689). These documents, Hamilton maintains, were created to protect individuals against arbitrary actions on the part of a monarch. The United States, however, is not governed by a monarch. The Constitution provides for a representative form of government, where power resides in the hands of the people through their elected representatives. Accordingly, a bill of rights is not necessary for people to preserve their rights in opposition to a king.

Hamilton's third argument is that a bill of rights would be “dangerous,” for it “would contain various exceptions to powers not granted; and, on this very account, would afford a … pretext to claim more than were granted.” If, he argues, a bill of rights grants freedom of the press when the Constitution contains no provision for curtailing such a freedom, then the question could arise whether such a right enumerated in a bill of rights implies that the government could under certain circumstances curtail freedom of the press—that granting freedom of the press could provide a “plausible pretense” for curtailing it. The excerpt concludes with Hamilton's assertion that the Constitution as written is a bill of rights and that “it is absurd to allege” that such rights are “not to be found in the work of the convention.”

The Constitution was ratified without the inclusion of a bill of rights, but on June 8, 1789, Madison submitted, as amendments to the Constitution, a bill of rights to the first Congress. In doing so, he hoped to avoid the need for another constitutional convention that might undo the work of the first. On December 15, 1791, when Virginia ratified ten of the twelve amendments Madison had submitted, they became part of the U.S. Constitution.