Federalist 84
– Federalist No. 84 is notable for presenting the idea that a Bill of Rights was not necessary for the new Constitution. The constitution, as originally written, did not specifically enumerate or protect the rights of the people. Many Americans at the time opposed the inclusion of a bill of rights: if such a bill were created, they feared, this might later be interpreted as a list of the only rights that people had.
– The Federal gov’t is supposed to be a gov’t of limited means. By saying certain rights could not be violated by the Federal gov’t you are actually implying to them more power than they actually had.
– Rigid formalism- Don’t need bill of rights b/c the gov’t was going to exercise very limited power.
Leonard W. Levy, Origins of the Bill of Rights (Argument for and against bill of rights amidst the founders.)
– Jefferson’s defense of a Bill of Rights, “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” p.9
o Jefferson and Adams in Europe were much closer to popular opinion than the Framers of the Constitution, who had worked secretly for almost four months and, with their supporters, became locked into a position that defied logic and experience.
o To include some rights may be interpreted as the exclusion of all others.
o Patrick Henry cleverly observed that the “fair implication” of the Federalist argument against a bill of rights was that the government could do anything not forbidden by the Constitution. p.12
– IN favor of a bill of rights (James Winthrop)- serves to secure the minority from the tyranny of the majority. A bill of rights is therefore as necessary to defend an individual against the majority in a republic as against a king in a monarchy.
o Single most issue that united Anti-Federalists was the lack of a bill of rights.
drafted the provision?)
§ 2) Should the relevant psychological state be considered? (Are we interested in what a legislature hoped the provision would do? What he feared it would do? )
§ 3) What combination of original intentions is controlling? (Must we find that a majority of the relevant persons held the same “understanding”?
§ 4) Are we interested in the abstract or the concrete intentions? (Are we interested in the framers view of equality generally or in their specific view of racial segregation in schools?)
o Non-originalist approaches
§ Natural Law
§ Moral arguments and the search for integrity
§ Tradition
§ The common law and the consensus
§ Representation – reinforcement
INCORPORATION: The Application of the Bill of Rights to the States
