The American Bill of Rights should not have been necessary

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Monday, May 4. 2015

The American Bill of Rights should not have been necessary

And it is sad that it turned out to be. From Charles Cooke's Why the American Bill of Rights Would Never Pass Today:

As James Madison recorded in Federalist 45, “the powers delegated by the proposed Constitution to the federal government are few and defined.” In other words, what it was not clearly permitted to do, it could not do. That being so, a Bill of Rights made little sense, for, if the federal government had been accorded the opportunity to do only a certain number of things, listing what it could not do was superfluous. Underscoring this point, Alexander Hamilton submitted in Federalist 84 that a list of specific prohibitions would represent “various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” “Why declare,” Hamilton asked, “that things shall not be done which there is no power to do?”

Posted by The Barrister in Politics at 14:34 | Comments (5) | Trackbacks (0)

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We can't replay history and see if not specifying the freedoms in the Bill of Rights would have led to a stricter understanding of enumerated powers. It's plausible, but I see larger, surrounding cultural events as greater drivers of change over the last 200 years.

#1 Assistant Village Idiot (Link) on 2015-05-04 14:53 (Reply)

Hamilton was being disingenuous at best. The father of the 'implied powers' doctrine.

#2 Tom C on 2015-05-04 14:56 (Reply)

It wasn't necessary, but likely wouldn't have changed history had it not been added.

People in power seek to expand that power, it's a natural event.

But there is more than one way to say things. Obama was on the radio, at some point prior to his Senate run, and commenting that the interesting thing about the Constitution is that it never actually told government what it COULD do - as if asking that question was meaningful for a limiting document.

That's the essential problem with a dangerous man like him. Seeing that the Constitution didn't enumerate much about what government COULD do - he now seeks to expand what it CAN DO, because there is no language specifically spelling out that he's not allowed to do that.

It would have been nice to have had foresight which would have allowed the Founders to say there is no right or reason to expand beyond that which is enumerated here in a more meaningful way than they did. Clearly, WE understand it's a limiting document and the government is too large - but many people just assume we can't get along without it any more unless it's this large.

It's not true. But people oddly think it is. That's what people like Obama count on.

#3 Bulldog on 2015-05-04 16:22 (Reply)

Yeah, yeah, yeah. But we see such rights were not enumerated in the English Bill of Rights and they are fast on their way to doing away with the last of them already most have been usurped.

Magna Carta, the English Bill of Rights, the American Bill of Rights were all attempts to deal with usurpation of the ancient liberties of English speaking peoples by the executive and the government. It took longer this time but we are again seeing the usurpation. Is it time for another civil war to reset?

#4 JK Brown on 2015-05-04 16:53 (Reply)

the first part of that article is just more hand wringing, another strawman, totally pointless.

the second part misses the point of why the BoR is needed. the 14th amendment incorporates rights protected by the BoR against the states. while the federal government is limited to specific enumerations of power, state governments are governments of general jurisdiction.

without the BoR, there's no effective protection of these rights against state (non-federal) legislation. you could have states that license newspapers, set up official churches, ban all firearms; civil rights and due process would mean anything and nothing at all.

#5 Brian Williams' Imagination on 2015-05-04 20:59 (Reply)

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Monday, May 4. 2015

The American Bill of Rights should not have been necessary