The Federalist Papers and the Bill of Rights
Slonim, Shlomo, Constitutional Commentary
Of all the complaints lodged by the Antifederalists in their campaign to defeat ratification of the Constitution, the failure to attach a bill of rights to the Constitution emerged as the leading and most formidable one. (1) This omission represented an Achilles' heel that might very well have doomed the process of ratification. (2) In the 1787 Constitutional Convention, it will be recalled, no one thought of the need for a bill of rights until Virginian delegate George Mason raised the issue just several days before the Convention was due to rise on September 17. "It would give great quiet to the people," he said. (3) Thereupon, Elbridge Gerry of Massachusetts submitted a proposal for adding a bill of rights to the Constitution which Mason seconded. The Convention unanimously rejected the proposal by a vote of 10 to 0, with one state absent. (4) Failure to heed Mason's counsel was to plague the Federalists throughout the ratification campaign.
Already in the first major confrontation over ratifying the Constitution, which took place in Pennsylvania several weeks after the close of the Constitutional Convention, the Seceders from the state Assembly called upon their electorate to consider whether the rights of citizens could be regarded as safe under a constitution which did not contain a bill of rights. (5) In the same state, Samuel Bryan, in his first essay on the topic, Centinel 1, published on October 5, 1787, declared that the absence of a bill of rights made it essential for a second constitutional convention to be held to rectify the errors and omissions of the first. (6)
In response to these charges, James Wilson, who contributed significantly to the drafting of the Constitution as a member of the Pennsylvania delegation to the Constitutional Convention, and who was a prominent legal scholar who would subsequently serve as a Justice on the original U.S. Supreme Court, enunciated a thesis which distinguished between a government of unlimited powers and one of enumerated and defined powers. The former, as illustrated by the state governments, were sovereign in their authority and had free rein to exercise any and all powers, but the latter, as illustrated by the federal government, could only exercise those powers which it disposed of under the Constitution. There was, therefore no fear that the federal government could threaten the rights of citizens in such matters as freedom of the press, freedom of religion etc., since it was powerless to operate in such spheres. Wilson explained:
There are two kinds of government; that where general power is intended to be given to the legislature and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given, than what is so enumerated, unless it results from the nature of the government itself.... [I]n a government like the proposed one, there can be no necessity for a bill of rights. For ... the people never part with their power.... [W]e are told, that there is no security for the rights of conscience. I ask ... what part of this system puts it in the power of Congress to attack those rights? When there is no power to attack, it is idle to prepare the means of defense. (7)
And Justice Thomas McKean of the Pennsylvania judiciary, likewise contended that a bill of rights was superfluous in the federal constitution:
[I]t 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. This system proposes a union of thirteen sovereign and independent states in order to give dignity and energy to the transaction of their common concerns. It would be idle, therefore to countenance the idea that any other powers were delegated to the general government than those specified in the Constitution itself. …