A fiasco best left in the US

The Australian ^ | January 11, 2006 | Eddy Gisonda

[muawiyah]

Random choice is an option.

[muawiyah]

Hamilton and Jefferson were arguing "straw men". Fact was the Constitution could not get adopted without a Bill of Rights.

Numerous clever and learned analysts have pointed to the fact that the Bill of Right focuses almost exclusively on abuses best known to have occurred in the reign of Louis XIV.

Obviously the targeted audience were the hundreds of thousands of descendants of French Huguenots then living in the United States.

[TChris]

Alexander Hamilton was an elitist, who didn't really care about the rights of the average citizen, so that would be his view. Instead, I'm with Jefferson on this one; a Bill of Rights was necessary to draw a line that governments couldn't cross. Without it, the U.S. would probably look similar to Europe with its disdain for individual rights. Some of European laws, especially the ones banning "hate speech" and individual religious expression, would be struck down as unconstitutional in America.

From what I've read of Hamilton, I'd have to disagree. His argument was that the federal government should be so limited in authority and power by the Constitution that specifying protected rights would be redundant and unnecessary. If the Constitution does not grant the government authority to regulate speech and press, then there is no need to explicitly protect them from the government, because they are restricted from anything outside their Constitutional authority.

The Constitution was created with the attitude of "The government may not do anything except what we explicitly give it authority to do." The Bill of Rights takes the opposite approach: "Here is a list of things the government cannot do.", which necessarily implies that anything not on that list of prohibitions is fair game.

I tend to agree with Hamilton's approach. The default position of the Federal Government should be, "That's none of our business." Only those powers granted by the Constitution should be ever entertained by our elected representation in Washington. Everything else is strictly off limits, specifically granted to the states for their consideration.

[NZerFromHK]

I can tell you that in much of the non-US world, this point will be pretty much ignored. The term Republic has now evolved to a usage that referes to "any country that the head of state is not a hereditary ruler."

[Billthedrill]

You are correct. The Bill of Rights has nearly nothing to do with this issue. The relation of the judicial branch to the overall federal government is dealt with in Article III of the main body of the Constitution, and it was Marbury v. Madison that expanded that to what is essentially a judicial veto on the activities of the legislative branch.

Whether the Constitution even needed a Bill of Rights was controversial then and remains so. The idea that without one the Constitution's fairly basic provisions could be expanded to cover the areas under the protection of the Bill of Rights was balanced by the view that such a Bill would tend to be interpreted as a limitation of the rights of the people to those areas. I think that both sides had a point.

[Clemenza]

Well, if the non-U.S. world does not understand that we are not a Democracy, then they are in line with the 70% of our population that doesn't understand our system of government.

Democracy = Mob rule, ie two wolves and a sheep voting on what's for dinner.

[NZerFromHK]

From my conversations with them, their attitude seem to be "We don't know and we don't care.". It's quite tragic.

[Accygirl]

Hamilton actually believed in a fairly robust national government, especially in the economy.

Moreover, I believe that the Bill of Rights protects Americans from the state and local governments more than the federal government. While a strict interpretation of the Constitution would limit what Congress could do, it would also pass much of that power onto states and ultimately to local jurisdiction. State/ municipal governments could pass all the laws they wanted to limit freedom of speech/ religion (especially under the guise of public safety/ nuisance laws/ aesthetics), and there would be no possible recourse in the federal courts.