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Defending the Constitution
no such authority would merely make explicit what was already implicit
in the Constitution, with excess verbiage that simply stated what was already obvious.
To this, Hamilton added other objections. First, the Constitution already contained specific guarantees of liberty. ‘‘The establishment of the
writ of habeas corpus, the prohibition of ex post facto laws and of titles of
nobility,’’ he asserted, ‘‘are perhaps greater securities to liberty and republicanism’’ than any provided by his own Constitution of New York.
Second, a bill of rights does not properly belong in this kind of Constitution. Such bills of rights are ordinarily stipulations between kings and
their subjects, ‘‘reservations of rights not surrendered to the prince’’—as
seen in the Magna Charta, the Petition of Right, and the English Bill of
Rights of 1688. Hence, Hamilton argued,‘‘they have no application to constitutions professedly founded upon the power of the people’’ because ‘‘in
strictness, the people surrender nothing, and as they retain everything,
they have no need of particular reservations.’’ The Preamble of the Constitution, he believed, ‘‘is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of
our State bills of rights, and which would sound much better in a treatise
of ethics than in a constitution of government.’’
Third, said Hamilton, a bill of rights might even be dangerous. By listing freedoms that the Federal government could not deny, the government, by implication, would be free to deny those rights that had not
been included. A bill of rights, he reasoned, ‘‘would contain various exceptions to powers which are not granted; and on this very account,
would afford a colorable pretext to claim more than was 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?’’
Fourth, there was no clear understanding concerning the precise meaning of the liberties claimed, and the standards varied from State to State.
‘‘What signifies a declaration that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?’’ If freedom of the press is to be enjoyed, Hamilton argued, it will be because of