Why The Framers Thought the Bill of Rights Was A TERRIBLE Idea, And Refused To Place It In The Constitution

The Bill of Rights lists VERY FEW RIGHTS,and creates the impression that those are ALL OF THE RIGHTS. Before the Bill of Rights, (which came THREE AND ONE HALF YEARS AFTER THE CONSTITUTION) we had one billion rights, INCLUDING ALL OF THE RIGHTS LISTED IN THE BILL OF RIGHTS, and the federal government had a few powers. AFTER the Bill of Rights, the federal government has one billon powers, and we have a few rights.

Almost every human being on planet Earth reads the BOR this way: The Department of Education is Constitutional because the BOR does not prohibit it.

Read the BOR: it’s legal (according to at least half the people on this website) for Trump to take your bump stocks, because the BOR does not prohibit this.

Read the BOR: it’s legal to send 8 million of your dollars to Sri Lanka to teach journalists not to offend LGBTQ people, because the BOR does not prohibit this.

Read the BOR: it’s legal to set up Medicaid, Medicare, Social Security, Welfare, the Dept. of Commerce, HHS, Dept. of Labor, etc. etc. etc., because the BOR does not prohibit this.

NOW, READ THE ENUMERATION. The original, BETTER bill of rights, the bill of rights preferred by the Framers of the Constitution.

Read the Enumeration and it’s unconstitutional for Trump to take your bump stocks because the Enumeration does not allow it.

Read the Enumeration and it’s unconstitutional for your dollars to go to Sri Lanka to teach journalists not to offend LGBTQ people, because the Enumeration does not allow it.

Read the Enumeration and it’s unconstitutional to set up Medicaid, Medicare, Social Security, Welfare, the Dept. of Commerce, HHS, Dept. of Labor, etc. etc. etc., because the Enumeration does not allow it.

Now, read the words on the Framers themselves on why the BOR is a very bad idea, and why they REFUSED to place it in the Constitution.

In a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution, is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated, is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete. On the other hand, an implied enumeration of the powers of government, reserves all implied power to the people; and, by that means the constitution becomes incomplete; but of the two it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government, is neither so dangerous, nor important, as an omission in the enumeration of the rights of the people. — James Wilson

A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house (the Convention), with the greatest indignation….In a government possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous and dangerous. — James Wilson

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow, by implication, that those rights that were not placed in that enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. — James Madison

I go further, and affirm, that bills of rights, in the sense and to the extent they are contended 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 afford a colourable pretext to claim more than were 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? –Alexander Hamilton

The whole plan of government [of the Constitution] is nothing more than a bill of rights. It has already been incontrovertibly shown that on the present occasion a bill of rights was totally unnecessary, and that it might be accompanied with some inconveniency and danger, if there was any defect in the attempt to enumerate the privileges of the people. -- Justice Thomas McKean, delegate to the Pennsylvania ratifying convention.

McKean also asks (rhetorically and brilliantly), if a person wants to sell 250 of his 1,000 acres, is it necessary to “reserve” the other 750? In other words, when you show up at my house to buy my car, do I have to attach to the bill of sale a document listing all the many thousands of my other possessions that I am not selling to you? Enumerate all the rights of men! I am sure, sir, that no gentleman in the late convention would have attempted such a thing. – James Wilson

The “solution” of the 9th and 10th was the worst solution of all time. Seriously, how many people on this forum said the bump stock ban was illegal because of the 9th and 10th amendments? ZERO.

Sadly the 9th and 10th are unknown, unloved, forgotten, and UNENFORCED.

We know that with or without a bill of rights, the subject of our liberties time and time and time again over the last 200+ years has been the catalyst of heated and intense controversy, litigation, legislation, and even armed conflict. With or without a bill of rights, the questions of just what our constitutional rights are, where in that document they are found, and how they are protected would, therefore, be extremely familiar to all Americans—every bit as familiar as the Bill of Rights.

If, from day one, and stretching 200+ years into the future, you had never once found your rights other than in the Enumeration, then you’d be very unlikely ever to forget the Enumeration. Is the Bill of Rights in any danger of being forgotten? If Congress were tomorrow to propose to abolish several newspapers because Congress found them offensive, how likely is it that the people would somehow forget the Bill of Rights and think the proposal legal and constitutional?

Without a bill of rights, however, Americans long, long ago, would have been forced to know something of the context of the creation and ratification of the Constitution, and something of the thoughts of the men who wrote it.

Therefore, without a bill of rights, but with better than 200 years of history behind us, every schoolchild would be able to recite with complete confidence a vague yet true statement to the effect that “We have lots of rights. The federal government’s rights are few and defined, and they are chiefly found in our Constitution in Article I, Section VIII. A new federal government proposal to regulate the press because of, say, a recent spate of “fake news” is not one of the powers granted the federal government. The proposal is, therefore, illegal.”

Instead of memorizing simply “freedom of speech, religion, and press” and nothing else, we would have memorized a few words to sum up James Madison below in Federalist 45.
The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.
The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments in times of peace and security.

Yeah, the Framers handled that argument, too... See their quotations below.

Attacks on the notion that the Constitution significantly constrains federal government jurisdiction these days usually focus on the “general welfare” and “necessary and proper” clauses. These clauses, say the ignorant and those who know better but are desperate to expand federal authority, are said to empower the federal government to do damn near anything it wants, at any time it wants, for any reason it wants.

This is an extraordinary claim, even an unbelievable one, given that the men who wrote the Constitution were confronted with that exact accusation and responded quite forcefully and convincingly that these clauses absolutely did not confer any grant of power to the government.

They even said so in The Federalist Papers, which was not, as noted earlier, an obscure body of work, making it mind-boggling that people, especially federal authorities of all stripes, elected or otherwise, can actually get away with claiming such a grant exists. Before reading the Framers’ words on these clauses, however, we might just want to point out that logical reasoning alone can deflate the idea that these clauses are as powerful as some might have us believe.

First, recall once more the context in which the Constitution was ratified. Again, we ask the question: Would the people ever have ratified a document that gave virtually unlimited power to a distant federal government after having just fought a war to rid themselves of such a government? It seems unlikely. Would the Framers have even thought to create such a government? Did they possess some secret, heretofore undiscovered desire for an all-powerful central government?

Second, because such a broad reading of these clauses would indeed establish a government almost unlimited in power, what could possibly be the reason for the rest of the Constitution? Why write a 4,600-word constitution, just to insert a clause at about one-third of the way in, that says, essentially, “This government is to have unlimited powers. You may thus ignore every word that has come before and every word that shall follow this clause.”? Why did the Framers spend a long, arduous summer locked in secret debate simply to write a document that could be summed up in a few paragraphs? What could possibly be the purpose of all these checks and balances we’ve discussed if government was to be unlimited in scope, power, and jurisdiction?

Enough theorizing; let us see what the Framers had to say.

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them.[ ] To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
— James Madison

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one.
— James Madison

Thomas Jefferson’s view was the same, saying Congress does not have “unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated.”

In Federalist 41, yet another promise to the people that the federal government was to be limited, Madison again makes the case against the totalitarian reading of the general welfare clause. Madison answers the critics who fear that the general welfare clause “amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defense or general welfare,” critics who fear, in short, that the clause will be precisely what so many people today want it to be.

Had no other enumeration or definition of the powers of the congress been found in the constitution, than the general expressions just cited, the authors of the objection might have had some colour for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what colour can the objection have, when a specification [the enumeration again] of the objects alluded to by these general terms, immediately follows; and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which, as we are reduced to the dilemma of charging either on the authors of the objection, or on the authors of the constitution, we must take the liberty of supposing, had not its origin with the latter.

In Federalist 33, we find much the same thing on the necessary and proper clause. Again, we see the promise repeated: the federal government is to be limited in scope and to have jurisdiction over only those things found in the Enumeration.

These two clauses [the other clause he speaks of is the supremacy clause] have been the sources of much virulent invective, and petulant declamation, against the proposed constitution. They have been held up to the people in all the exaggerated colours of misrepresentation; as the pernicious engines by which their local governments were to be destroyed, and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamour, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence, that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, withoutt emotions that disturb its equanimity.

What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the means to execute a LEGISLATIVE power, but LAWS? What is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws?

This simple train of inquiry furnishes us at once with a test of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes, must be a power to pass all laws necessary and proper for the execution of that power: and what does the unfortunate and calumniated provision in question do, more than declare the same truth; to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? I have applied these observations thus particularly to the power of taxation; because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the union. But the same process will lead to the same result, in relation to all other powers declared in the constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers, upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

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