The Supreme Court in a Free Society

By Alpheus Thomas Mason; William M. Beaney | Go to book overview

XIII
CIVIL LIBERTIES- CRIMINAL PROCEDURE

STATE CONSTITUTIONS ADOPTED in 1776 and in subsequent years invariably contained either a separate bill of rights or other provisions that achieved the same objective. The delegates at the Constitutional Convention of 1787, however, preoccupied with the difficult task of infusing power into the new government, thought the inclusion of a bill of rights both unwise and unnecessary. In The Federalist, No. 84, Hamilton summarized two arguments that Madison, Charles Pinckney, James Wilson, and other supporters of the Constitution had repeated endlessly: first, because the new government's powers were enumerated, no need existed for reciting prohibitions; second, any attempt to list rights was dangerous since omissions might seem deliberate. To Hamilton, "the Constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights." Madison stated an additional reason for opposing a bill of rights: the fear that the force of contemporary public opinion would compel an excessively narrow definition of religious and other freedoms.

Jefferson, in a letter to Madison from France, took a different

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