On a Section of Alexander Hamilton’s Federalist 84 (Part 1): What exactly is the purpose of a Bill of Rights?

A copy of Federalist 84 for your convenience. My apologies for the length of this – it got out of hand pretty quickly and I thought there was enough here that was important so I published it anyway.

Part 1 – Part 2

Paragraphs 1 & 2. Hamilton notes in dealing with “miscellaneous points” regarding his review of the proposed Constitution that “the most considerable of the remaining objections is that the plan of the convention contains no bill of rights.” He finds it curious that the citizens of New York, the state which The Federalist Papers are meant to persuade, are such “intemperate partisans” in their clamor for a bill of rights given that the constitution of the State of New York lacks one too.

However, those “partisans” claim that the State constitution contains within it “various provisions in favor of particular privileges and rights, which, in substance amount to the same thing.” Further, the State constitution “adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.”

What I find funny about the opening is the “zeal” which Hamilton identifies. People feel there is something so fundamental about declaring rights expressly that they can miss in crucial ways that they fail to operate under laws that don’t declare rights expressly. One has to wonder whether the same temperament which worries about the state of museums in the midst of a war zone also operated during the Founding. I suspect at times that the want to declare a right can take precedence over actually trying to understand which issues or values matter more than others.

Paragraphs 3 – 6. Hamilton says that the Constitution has plenty of provisions similar to that of New York. To replicate the 4th paragraph in full:

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 — “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2 — “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3 — “No bill of attainder or ex-post-facto law shall be passed.” Clause 7 — “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3 — “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3, of the same article — “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section — “The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

So what is the character of these provisions?

We first note well that Hamilton begins with punishment for impeachment, and separates the offense one can be impeached for from legal offenses. Perhaps there is an implicit argument here for the incessant rhetoric we hear from politicians campaigning for office, that there is “politics as usual” and then something different, i.e. “bipartisanship” or “getting things done” or whatever. The immediate sense of the distinction between impeachable offenses and legal offenses, though, is that there is merely dual protection: the impeached party is protected against the unlimited wrath of the few or the many in the impeachment process, and the few and the many are protected via law if the impeached party was indeed so dangerous. The sense of the Constitution, the foundational legal sense, is unambiguous: security is the first object of politics, and any other ideas one might have about politics and law are mere blather.

Article 1, Section 9 contains what is known as the “little Bill of Rights:”

  • clause 2: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
  • clause 3: “No bill of attainder or ex-post-facto law shall be passed.”
  • clause 7: “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”

What we note secondly is that the logic of formal protections for one’s freedom is being followed thoroughly. Hamilton calls these particular protections “greater securities to liberty and republicanism than any it [the New York constitution] contains.” Why is this the case? The quoting of Blackstone in the paper explains all:

“To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British
Constitution.”

The formal protection is in what habeas corpus prevents: “secrecy,” an advantage the Executive can rely on (cf. Federalist 70!), is for the most part a problem because it fails to sound an “alarm” that liberty generally is in danger. The prevention of bills of attainder and ex post facto laws also represent a mechanistic attempt to protect rights from the encroachments of the legislature. The idea is that any attempt of the legislature to override these provisions would sound an alarm. Obviously, they exist so that majority tyranny cannot be practiced so directly either.

I don’t think anything needs to be said about nobility, although it is curious that the prevention of titles of nobility is the center of this listing of protections. The list only covers Article 1 (Congress) and Article 3 (Judiciary). It is as if a rejection of nobility is for protecting the structure of the Executive.

A guarantee of trial by jury, a strict definition of treason, and a limit to the punishment for treason all come under a discussion of the Judiciary. “Trial by jury” we understand from Montesquieu to be the refined but full expression of the popular will: any of one’s peers can be picked, execute judgment, and disappear back into the masses without their fearing reprisal or a violation of equality.

In fact, what the guarantees concerning “treason” demonstrate, just like the provisions restraining Congress above and concept of trial by jury, is that equality – not nobility – is what “rights” must aim at establishing. When different actors claim special rights, there must be very compelling justification to guarantee these rights. A case in point, for example, is the “liberty of the press,” which Hamilton discusses and we will consider in a future post.

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