Hamilton begins the penultimate Federalist paper by acknowledging that there are some objections to the Constitution that have not yet been discussed. The most important of the remaining objections is that the Constitution does not contain a bill of rights. It has already been pointed out that several state constitutions do not contain bills of rights, including New York State. Oddly, New York citizens who oppose the federal constitution on the ground that it does into contain a bill of rights have tremendous admiration for their state constitution. These citizens claim that the state constitution does not need a separate bill of rights because the guarantee of individual rights is written into the constitution itself. The same is true of the federal constitution.
As was previously shown, many safeguards against the abuse of power are built into the structure of the national government, such as the separation of powers and checks and balances. In this paper, Hamilton contends that he will examine six provisions designed to protect individual liberties. First, to protect the people against executive and judicial abuse of power, the Constitution provides the power to impeach. Second, the writ of habeas corpus (the right of a person arrested to imprisoned to be informed of the charges against him) shall not be suspended, "unless, when in cases of rebellion or invasion the public safety may require it." Next, Bills of attainder and ex-post-facto laws are prohibited. The great English jurist, Blackstone, believed that prohibiting these types of laws were the two most fundamental individual rights. Fourth, the Constitution states "no title of nobility should be granted by the United States." Hamilton writes that the importance of prohibiting titles of nobility is paramount; if such titles were granted, the very foundation of republican government would be undermined. Fifth, the Constitution guarantees the right to trial by jury in all criminal cases and sixth, treason is very carefully defined in the Constitution. The Constitution supports the distinction between political dissent and treason, it does all it can to prevent working a hardship on the traitor's family.
Originally, bills of rights were agreements between kings and their subjects concerning the rights of the people. Kings limited their own power, either under pressure or voluntarily, acknowledging that they were not all-powerful. The best example is the Magna Carta, the charter of English liberties that the barons forcibly obtained from King John in 1215. But one must remember that the proposed Constitution has no force unless the people approve it; there is no need to grant them specific rights. The Preamble of the Constitution is a better recognition of popular rights than all the bills of rights put together. The Constitution is concerned with general political interest and rights, not with specific and minute details of every right. Hamilton argues that a bill of rights would not only be unnecessary, but dangerous. A bill of rights would, for instance, attempt to limit certain governmental powers which are not even granted.
Another objection to the Constitution is that the national government will be so far away from the states and the people that the latter will be ignorant of what is going on. The counties in opposition to state governments can make the same argument. There are ways of knowing what the state governments are up to, just as there are ways of knowing what is happening in the nation's capitol; we can evaluate the laws that are passed, correspond with our representatives, read newspaper reports, etc. If this were not so, there would be no division of governmental power whatsoever in a republican form of government. Not only will the people be able to take stock of the national government, the states will act as sentinels or guards; they will keep a watchful eye over all the branches of the national government. This is so because the state and national governments will be rivals for power. Actually, the people will be more fully informed concerning the conduct of their national representative than they are, at present, of the state representatives.
There are many curious and extraordinary objections to the Constitution, but one of the strangest, this paper suggests, has to do with debts owed by the states to the United States. Some people have gone so far as to suggest that the Constitution removes the obligations of the states to pay their debts. This claim is ridiculous. Last, there has been an objection concerning the expense of the proposed government. When we consider that most Americans are convinced that Union is vital to their political happiness, that is cannot be preserved under the present system, that new and broad powers ought to be granted to the national government, the question of added dispense seems superficial. Good government is far too important to allow expense to interfere. Undeniably, there will be some added expense, but there will be some savings as well. All in all, Hamilton believes that this is an extremely weak argument.
Analysis
It is extremely interesting and telling that Hamilton wrote this essay, not Madison, and shows the internal inconsistencies between the two authors. While Alexander Hamilton writes in this essay of the lack of a need for a Bill of Rights and argues not that the Constitution will eventually have the ideals that Americans presently feel our fundamental, but instead, that they are unnecessary and would actually be hurtful to the Constitution. That his coauthor was James Madison, considered the father of the Bill of Rights, is an ironic twist of fate and if Madison and not Hamilton had written this segment of the Federalist Papers, it would have been far different.
This paper also shows something on the nature of government that Hamilton desired. Free government being an ideal, Hamilton concedes that the plan of the convention is a compound as much as the errors and prejudices, as of the sense and wisdom, of the delegates, a compromise of many dissimilar interest and inclinations. It has not claim to absolute perfection. Not expecting "to see a perfect work from imperfect man," (Federalist 85), Hamilton has praise for the Constitution. The system it establishes, "thought it may not be perfect in every part, is, on the whole, a good one; it is the best that present views ad circumstances of the country will permit."
The entire change that was effected by the Constitution consists in the creation of the Union. Not being ratified, as were the Articles, merely by the "several legislatures," but "by the PEOPLE" of America, irrespective of state boundaries, the Constitution transforms a league under international law into a nation. More specifically, the radial alterations of the Articles of Confederation mean to Hamilton the grant of "new and extensive powers . . . to the national head, and . . . a different organization of the federal government a single body being an unsafe depository of such ample authorities." The Constitution, while concentrating power in the federal head as a remedy against democratic tyranny in the states, diminishes the probability of too much democracy on the national level by taking power away from Congress. The achievement of free government in the Constitution thus boils down to a restriction of popular government in favor of the protection of the individual's rights. It is brought about mainly by two factors: the creation of a stronger national government and the dethronement of an all-powerful legislature.
