Antifederalist No. 84 

ON THE LACK OF A BILL OF RIGHTS 

By "BRUTUS" 



     When a building is to be erected which is intended to stand 
for ages, the foundation should be firmly laid.  The Constitution 
proposed to your acceptance is designed, not for yourselves 
alone, but for generations yet unborn.  The principles, 
therefore, upon which the social compact is founded, ought to 
have been clearly and precisely stated, and the most express and 
full declaration of rights to have been made.  But on this 
subject there is almost an entire silence. 
     If we may collect the sentiments of the people of America, 
from their own most solemn declarations, they hold this truth as 
self-evident, that all men are by nature free.  No one man, 
therefore, or any class of men, have a right, by the law of 
nature, or of God, to assume or exercise authority over their 
fellows. The origin of society, then, is to be sought, not in any 
natural right which one man has to exercise authority over 
another, but in the united consent of those who associate.  The 
mutual wants of men at first dictated the propriety of forming 
societies: and when they were established, protection and defense 
pointed out the necessity of instituting government.  In a state 
of nature every individual pursues his own interest; in this 
pursuit it frequently happened, that the possessions or 
enjoyments of one were sacrificed to the views and designs of 
another; thus the weak were a prey to the strong, the simple and 
unwary were subject to impositions from those who were more 
crafty and designing.  In this state of things, every individual 
was insecure; common interest, therefore, directed that 
government should be established, in which the force of the whole 
community should be collected, and under such directions, as to 
protect and defend every one who composed it.  The common good, 
therefore, is the end of civil government, and common consent, 
the foundation on which it is established.  To effect this end, 
it was necessary that a certain portion of natural liberty should 
be surrendered, in order that what remained should be preserved.  
How great a proportion of natural freedom is necessary to be 
yielded by individuals, when they submit to government, I shall 
not inquire.  So much, however, must be given, as will be 
sufficient to enable those to whom the administration of the 
government is committed, to establish laws for the promoting the 
happiness of the community, and to carry those laws into effect.  
But it is not necessary, for this purpose, that individuals 
should relinquish all their natural rights.  Some are of such a 
nature that they cannot be surrendered. Of this kind are the 
rights of conscience, the right of enjoying and defending life, 
etc.  Others are not necessary to be resigned in order to attain 
the end for which government is instituted; these therefore ought 
not to be given up.  To surrender them, would counteract the very 
end of government, to wit, the common good.  From these 
observations it appears, that in forming a government on its true 
principles, the foundation should be laid in the manner I before 
stated, by expressly reserving to the people such of their 
essential rights as are not necessary to be parted with.  The 
same reasons which at first induced mankind to associate and 
institute government, will operate to influence them to observe 
this precaution.  If they had been disposed to conform themselves 
to the rule of immutable righteousness, government would not have 
been requisite.  It was because one part exercised fraud, 
oppression and violence, on the other, that men came together, 
and agreed that certain rules should be formed to regulate the 
conduct of all, and the power of the whole community lodged in 
the hands of rulers to enforce an obedience to them.  But rulers 
have the same propensities as other men; they are as likely to 
use the power with which they are vested, for private purposes, 
and to the injury and oppression of those over whom they are 
placed, as individuals in a state of nature are to injure and 
oppress one another.  It is therefore as proper that bounds 
should be set to their authority, as that government should have 
at first been instituted to restrain private injuries. 
     This principle, which seems so evidently founded in the 
reason and nature of things, is confirmed by universal 
experience.  Those who have governed, have been found in all ages 
ever active to enlarge their powers and abridge the public 
liberty.  This has induced the people in all countries, where any 
sense of freedom remained, to fix barriers against the 
encroachments of their rulers. The country from which we have 
derived our origin, is an eminent example of this. Their magna 
charta and bill of rights have long been the boast, as well as 
the security of that nation.  I need say no more, I presume, to 
an American, than that this principle is a fundamental one, in 
all the Constitutions of our own States; there is not one of them 
but what is either founded on a declaration or bill of rights, or 
has certain express reservation of rights interwoven in the body 
of them. From this it appears, that at a time when the pulse of 
liberty beat high, and when an appeal was made to the people to 
form Constitutions for the government of themselves, it was their 
universal sense, that such declarations should make a part of 
their frames of government.  It is, therefore, the more 
astonishing, that this grand security to the rights of the people 
is not to be found in this Constitution. 
    It has been said, in answer to this objection, that such 
declarations of rights, however requisite they might be in the 
Constitutions of the States, are not necessary in the general 
Constitution, because, "in the former case, every thing which is 
not reserved is given; but in the latter, the reverse of the 
proposition prevails, and every thing which is not given is 
reserved." It requires but little attention to discover, that 
this mode of reasoning is rather specious than solid. The powers, 
rights and authority, granted to the general government by this 
Constitution, are as complete, with respect to every object to 
which they extend, as that of any State government-it reaches to 
every thing which concerns human happiness-life, liberty, and 
property are under its control.  There is the same reason, 
therefore, that the exercise of power, in this case, should be 
restrained within proper limits, as in that of the State 
governments.  To set this matter in a clear light, permit me to 
instance some of the articles of the bills of rights of the 
individual States, and apply them to the case in question. 
     For the security of life, in criminal prosecutions, the 
bills of rights of most of the States have declared, that no man 
shall be held to answer for a crime until he is made fully 
acquainted with the charge brought against him; he shall not be 
compelled to accuse, or furnish evidence against himself-the 
witnesses against him shall be brought face to face, and he shall 
be fully heard by himself or counsel.  That it is essential to 
the security of life and liberty, that trial of facts be in the 
vicinity where they happen.  Are not provisions of this kind as 
necessary in the general government, as in that of a particular 
State?  The powers vested in the new Congress extend in many 
cases to life; they are authorized to provide for the punishment 
of a variety of capital crimes, and no restraint is laid upon 
them in its exercise, save only, that "the trial of all crimes, 
except in cases of impeachment, shall be by jury; and such trial 
shall be in the State where the said crimes shall have been 
committed." No man is secure of a trial in the county where he is 
charged to have committed a crime; he may be brought from Niagara 
to New York, or carried from Kentucky to Richmond for trial for 
an offense supposed to be committed.  What security is there, 
that a man shall be furnished with a full and plain description 
of the charges against him? That he shall be allowed to produce 
all proof he can in his favor?  That he shall see the witnesses 
against him face to face, or that he shall be fully heard in his 
own defense by himself or counsel? 
     For the security of liberty it has been declared, "that 
excessive bail should not be required, nor excessive fines 
imposed, nor cruel or unusual punishments inflicted.  That all 
warrants, without oath or affirmation, to search suspected 
places, or seize any person, his papers or property, are grievous 
and oppressive." 
     These provisions are as necessary under the general 
government as under that of the individual States; for the power 
of the former is as complete to the purpose of requiring bail, 
imposing fines, inflicting punishments, granting search warrants, 
and seizing persons, papers, or property, in certain cases, as 
the other. 
     For the purpose of securing the property of the citizens, it 
is declared by all the States, "that in all controversies at law, 
respecting property, the ancient mode of trial by jury is one of 
the best securities of the rights of the people, and ought to 
remain sacred and inviolable." 
     Does not the same necessity exist of reserving this right 
under their national compact, as in that of the States?  Yet 
nothing is said respecting it.  In the bills of rights of the 
States it is declared, that a well regulated militia is the 
proper and natural defense of a free government; that as standing 
armies in time of peace are dangerous, they are not to be kept 
up, and that the military should be kept under strict 
subordination to, and controlled by, the civil power. 
      The same security is as necessary in this Constitution, and 
much more so; for the general government will have the sole power 
to raise and to pay armies, and are under no control in the 
exercise of it; yet nothing of this is to be found in this new 
system. 
     I might proceed to instance a number of other rights, which 
were as necessary to be reserved, such as, that elections should 
be free, that the liberty of the press should be held sacred; but 
the instances adduced are sufficient to prove that this argument 
is without foundation. Besides, it is evident that the reason 
here assigned was not the true one, why the framers of this 
Constitution omitted a bill of rights; if it had been, they would 
not have made certain reservations, while they totally omitted 
others of more importance.  We find they have, in the ninth 
section of the first article declared, that the writ of habeas 
corpus shall not be suspended, unless in cases of rebellion,-that 
no bill of attainder, or ex post facto law, shall be passed,-that 
no title of nobility shall be granted by the United States, etc.  
If every thing which is not given is reserved, what propriety is 
there in these exceptions? Does this Constitution any where grant 
the power of suspending the habeas corpus, to make ex post facto 
laws, pass bills of attainder, or grant titles of nobility? It 
certainly does not in express terms. The only answer that can be 
given is, that these are implied in the general powers granted.  
With equal truth it may be said, that all the powers which the 
bills of rights guard against the abuse of, are contained or 
implied in the general ones granted by this Constitution. 
     So far is it from being true, that a bill of rights is less 
necessary in the general Constitution than in those of the 
States, the contrary is evidently the fact.  This system, if it 
is possible for the people of America to accede to it, will be an 
original compact; and being the last wilt, in the nature of 
things, vacate every former agreement inconsistent with it.  For 
it being a plan of government received and ratified by the whole 
people, all other forms which are in existence at the time of its 
adoption, must yield to it.  This is expressed in positive and 
unequivocal terms in the sixth article: "That this Constitution, 
and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme 
law of the land; and the judges in every State shall be bound 
thereby, any thing in the Constitution, or laws of any State, to 
the contrary notwithstanding." 
     "The senators and representatives before-mentioned, and the 
members of the several State legislatures, and all executive and 
judicial officers, both of the United States, and of the several 
States, shall be bound, by oath or affirmation, to support this 
Constitution." 
      It is therefore not only necessarily implied thereby, but 
positively expressed, that the different State Constitutions are 
repealed and entirely done away, so far as they are inconsistent 
with this, with the laws which shall be made in pursuance 
thereof, or with treaties made, or which shall be made, under the 
authority of the United States.  Of what avail will the 
Constitutions of the respective States be to preserve the rights 
of its citizens? Should they be pled, the answer would be, the 
Constitution of the United States, and the laws made in pursuance 
thereof, is the supreme law, and all legislatures and judicial 
officers, whether of the General or State governments, are bound 
by oath to support it.  No privilege, reserved by the bills of 
rights, or secured by the State governments, can limit the power 
granted by this, or restrain any laws made in pursuance of it.  
It stands, therefore, on its own bottom, and must receive a 
construction by itself, without any reference to any other.  And 
hence it was of the highest importance, that the most precise and 
express declarations and reservations of rights should have been 
made. 
     This will appear the more necessary, when it is considered, 
that not only the Constitution and laws made in pursuance 
thereof, but alt treaties made, under the authority of the United 
States, are the supreme law of the land, and supersede the 
Constitutions of all the States.  The power to make treaties, is 
vested in the president, by and with the advice and consent of 
two-thirds of the senate.  I do not find any limitation or 
restriction to the exercise of this power.  The most important 
article in any Constitution may therefore be repealed, even 
without a legislative act.  Ought not a government, vested with 
such extensive and indefinite authority, to have been restricted 
by a declaration of rights?  It certainly ought. 
     So clear a point is this, that I cannot help suspecting that 
persons who attempt to persuade people that such reservations 
were less necessary under this Constitution than under those of 
the States, are wilfully endeavoring to deceive, and to lead you 
into an absolute state of vassalage. 
                         BRUTUS