On a Section of Alexander Hamilton’s Federalist 84 (Part 2): What is a Proper Sense of Right?

Part 1 – Part 2 – Federalist 84 itself

Paragraph 7. Hamilton notes that even though the State constitution talks about “common law” and precedent, the legislature in New York holds ultimate sway, and perhaps New Yorkers have fewer rights than they think they have.

Paragraph 8. The first step in arguing that a “bill of rights = nonsense” is set forth:

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince….It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

So a Bill of Rights is only useful to a people dealing with a prince, for to declare one’s “rights” against a popular government is to declare that one has “rights” against oneself. The issue of a Bill of Rights is about how seriously one wants to take self-government: if one cares nothing for self-government, one will harp incessantly about one’s “rights” instead of actually paying attention to the workings of government, where self-rule is manifest.

Paragraph 9. Hamilton implicitly says that if you want a government that meddles in every single affair, by all means spell out tons and tons of rights and tell the government all the private realms it is welcome to legislate, snoop and prosecute over. The Constitution is meant merely “to regulate the general political interests of the nation.”

Paragraph 10. Hamilton explicitly says that if you want a government that meddles in every single affair, by all means spell out tons and tons of rights and tell the government all the private realms it is welcome to legislate, snoop and prosecute over: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

Paragraph 10 – 11. The “liberty of the press” is provided as an example of an absolutely useless and dangerous right: “I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

The vagueness of such a formulation of right results in this line of questioning:

“What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.”

I have to say that I’ve actually never considered until recently how meaningless things like “freedom of speech” are in practice until I saw people go crazy as if their right to say anything would be taken away if someone speaking truly dangerous things were censored. Ultimately, our Bill of Rights is meaningful mainly because it is a statement of value – we value speech, the press, religious freedom, etc. There are protections such as the 4th and 5th amendments which are more formal, but the 1st seems to be more about what we’re aiming for than what we can actually protect.

I’ll leave it up to you to define liberty of the press. I personally think Hamilton got this correct – the absence of such a “right” doesn’t mean state-owned media and one party rule. But the presence of such a declaration does mean, weirdly enough, that government has yet another interest to specially protect or over-regulate depending on its mood.

And thus ends this commentary. There’s far more in Federalist 84 to explore and think about, but I’ve ranted plenty.

1 Comment

  1. As always, thanks for your comments over at my blog – but I have to say, I think you’re grossly underestimating yourself with regards to the effort that you’re putting on this blog! The amount of work that you put in always shows.

    Although I’m done collecting for Study #1, I still have to analyse that data, then use it to form Study #2! BAH. But for the sake of my thesis and my brain, I quietly repress thoughts of the next phase… ;)

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