Federalist 84 Explained | What are Some Arguments Against the Bill of Rights?

0:05 Hello and welcome back to another Bill of Rights Institute Close Read. Today we’re continuing our journey looking at the Federalist papers, and we’re going to look specifically at Federalist number 84. Let’s check it out. Federalist 84 is an interesting Federalist paper. So whereas before Publius was talking about sort of large arguments about how the constitutional system comes together

0:27 to create a republican government and how the powers are balanced and how we elect different branches of government, here in 84, he’s only responding to concerns that people have with the Federalist papers or with the way that the constitution is being presented. So really what we’re going to focus in on today are what the constitutional arguments contained within Federalist 84 are really all about.

0:49 And there’s a few different concerns that were raised that Publius is responding to, but the one that we’re going to focus the most time on is about the Bill of Rights. And in this paper, Publius argues against the inclusion of a Bill of Rights in the constitution, which is pretty interesting and not something that you typically think about when you think about the constitution as a whole. So with that, let’s get a little bit of a historical background.

1:12 So again, we’re talking about the Federalist papers. These papers were written during the ratification debates between 1787 and 1788 when the country was debating whether or not to adopt the new constitution that had been drafted in Philadelphia and sent out to the states in September of 1787. They were written by three different men who all go under the same name, Publius.

1:34 And so when we think about their arguments, we shouldn’t think about the individuals so much as we’re thinking about Publius and who he was representing, the arguments of these gentlemen within the constitution or about the constitution. Those three were James Madison, Alexander Hamilton, and John Jay. So as I talked about in my video on the summary of the Federalist papers, publish talkeds about his argument

1:55 that he’s going to go through and all of his complexities and for this paper in particular with the very end of this point number four, which is the conformity of the proposed constitution to the true principles of republican government. So here Publius, this is coming to the end of his conversation about why the constitution that is being proposed to the states adheres to a republican form of government, which is what the country

2:17 nationally was really wanting to put in place. And so now let’s dive into the paper itself. Now we’re only looking at segments of the paper. I’m not going to go through the entire thing, but this should be enough to give us a gist of the argument. If you do want to look at the whole paper, which I encourage you to do, you can do that. There’s lots of different resources online both on the Bill of Rights website. Also, Avalon has the entirety of the Federalist papers, but for the sake of today.

2:40 We’re just looking at exercise. So first excerpt here Publius is laying out, as I just mentioned, he says in the course of ongoing review of constitution, I’ve taken notice of and endeavored to answer most of the objections which have appeared against it. However, there remains a couple that I haven’t looked at yet. So we’re going to look at a couple of those. And again, the big one that he’s going to talk about are those who are advocating in favor of a Bill of Rights.

3:04 So if you remember my last video we just released was talking about one of the Anti- Federalist papers, those Anti-Federalists, one of their strongest calls that was getting the most purchased popular lead in sort of public opinion was this idea that the constitution did not contain a Bill of Rights. People were really concerned about this and eventually those Bill of Rights do get adopted.

3:24 And in fact, as part of the deal that gets made for ratifying the constitution, there’s this promise made that there will be a delivery passed by the first congress as soon as it happens. But before that, Publius is going to argue against including it at all. And his argument for it is pretty interesting. So here he goes on to state exactly what I was just talking about, the most considerable of the remaining

3:47 objections is that this plan, the convention, has no Bill of Rights. And it says here that this is important, that we don’t have this Bill of Rights, that a Bill of Rights is something that these advocates are saying it’s going to undermine the entirety of the constitution and open up the system of government for corruption because these rights aren’t called out.

4:08 And I think it’s important to also think about here, why are we talking about this at all? Look, we know the Bill of Rights gets passed, so why do we care about what Publius’ arguments were against the adoption of the Bill of Rights? Well, it’s important to understand both where the ratification debate was coming down, why it was they opposed it in the first place, and it’s also always important in history to keep in mind different alternative

4:28 paths that could have been taken because it can help us better understand how we got to where we are today, but also can bring up interesting ways of reflecting on our government living in the constitutional republic. Our government is something that we are constantly creating generation over generation to best reflect how we are living today. And so sometimes in these older arguments, you can find interesting things where you say, hey, well maybe we could improve

4:51 on something or maybe we should rethink something because of what I’ve learned in these arguments, or better yet, hey, now I know that the Bill of Rights is absolutely right because Publius’ arguments are terrible. Maybe that’s your position. But no matter what position you take thinking through these things, can be really important towards civic activity for reflecting on and understanding our government, not in a way where we just accept it as it

5:11 is, but where we’re productively critical about it. We’re thinking about it, we’re engaging with it, and we’re deciding for ourselves whether or not we think it’s a great system or whether or not we think it’s a system that needs some improvement. So with that, let’s look a little bit more deeply into what it is that Publis is arguing for when he talks about these Bills of Rights.

5:33 It’s important to remember, too, that he’s publishing these in the State of New York. And essentially what Publius says here is, hey, it’s great that they’re calling for this Bill of Rights thing and all, but just so you know, New York itself doesn’t have a Bill of Rights. So where’s this argument coming from? Which is kind of funny if you think about it. Here they are advocating on behalf of the national governments,

5:53 the states themselves, this state in particular doesn’t have one. Not only he then goes on to say, and this is an interesting sort of rhetorical flourish, but New York doesn’t have one for specific purposes. So New York says they don’t need one essentially because their Constitution is pretty great, and so they don’t have a need to reserve these other rights. And because they’ve adopted British Columbia,

6:14 which protects true tradition, a lot of the rights that would be protected in a Bill of Rights and so Publius seizes upon that says, hey, that’s great, because just so you know, this Constitution is also pretty great. And he details here in this paragraph all of the ways that the Constitution already protects the kinds of things that people

6:35 are going to want protected in a Bill of Rights. So he points up civic clauses in the Constitution. Article one, section three, clause seven, judgment case of impeachment. Section nine, talking about the writ of habeas corpus, which is really important, talks about clause seven, no titles of nobility. He goes to and delineates all of these in order to say, look, you’re saying New York,

6:56 you don’t have a Bill of Rights because your Constitution is pretty great. This new constitutional system is also already protecting all those things. So honestly, we don’t need it. And not only that, he says, but the Constitution itself is also coming from this British Commonwealth tradition, just like you, the State of New York said, so we don’t really need it either. And he says,

7:17 but keeping in mind that the common law tradition isn’t the best safeguard for this because legislation can always change. You could pass new laws, things shift. What is a good safeguard is the Constitution. And by the way, this Constitution, the constitutional system that’s being proposed, is already so strong that we’re not going to need this Bill of Rights.

7:37 So then he takes a step back. He says, all right, so we have this great constitution. We have this common law tradition. We should be able to protect things. But let’s take a step back. We’re going to talk seriously and consider seriously what this Bill of Rights is. Let’s think about what it actually is. What does the Bill of Rights do that is so important that it’s included? And here he goes through and lists out a lot of documents that you may have

7:59 encountered in your classes as sort of the English tradition of rights, right? So he talks about the Magna Carta, he talks about the Petition of Rights, he talks about the English Bill of Rights. All of these he says, were great and important and lay a foundation for rights. But it’s important to keep in mind that they were done in a relationship that was a king and his subjects.

8:20 They were reserving privileges from the king by the people. And what he says here is really powerful when he essentially says is that was great for a monarachical system. But what we have here in the United States is not that kind of relationship. There are no subjects here. What we have are just citizens who are governing over each other.

8:42 And his final sentence here is really powerful. He says here in the strictness, the people surrender nothing and as they retain everything, they have no particular reservations. In other words, we don’t need to reserve specific rights because we contain them all. And the only way that we would lose them is if we were to vote for legislation or legislators that would take them away.

9:04 And then he quotes the Preamble which is 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

9:25 in a treatise of ethics than in the Constitution of government. So he says, look, we have this already paid and it’s we the people that have established the Constitution. We contain all these rights. We don’t have to reserve them to ourselves. We don’t have to keep them from anyone. The government is ours because we are self governing individuals. And not only are we saying that because

9:45 bills of rights are often just saying things to make it sound nice, but this is in actuality how it’s actually going to be protected. It’s not just speaking that these rights exist. We know that they exist. They’re ours. We have lost them, so we’re protecting them. Now, is that a strong argument against the Bill of Rights? That’s up to you to decide. But it is actually at least an interesting thing to think about.

10:05 Whether or not he is right in talking about the relationship between the way the federal government has been constructed and how it is these rights were being reserved when it comes to monitoring. But he’s not done. So he goes further. I go further and affirm that bills of rights in this sense and in the extent which they are intended for,

10:26 are not only unnecessary for the proposed constitution, but could be dangerous. Not only do we not need a Bill of Rights, because again, the constitution is pretty great. And that we have the English common law tradition, and that we reserved all these rights to ourselves. We’ve reserved all these rights to ourselves. We haven’t given anything up.

10:48 But not only that, adopting a bill of rights would actually be dangerous. He says it would be dangerous because it opens up the opportunity that action that was otherwise not even contemplated could now be permissible. And so he uses the example of freedom of the press, which was something that was being talked about as one of these things that needs to be preserved in a Bill of Rights. And he says, on the subject of freedom

11:09 of the press, on the liberty of the press, as he calls it, much has been said I cannot forbear adding a remark or two. I infer that it’s 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. And here, after all, is as is intimated upon another occasion,

11:33 must receive for the solid basis of all the rights. All right, what’s he saying? Essentially what he’s saying here is that having a Bill of Rights could open the door for another kind of government, whereas in our form of government, things are reserved to the people, except for the explicit things are given out in the government. If you suddenly start making this idea that you have to reserve something,

11:56 you can’t violate, say, the freedom of the press, while Publius’ argument here is the constitution doesn’t say you can regulate the press, so why would you be able to, now that you have a right saying that they can’t prohibit it? Well, maybe there’s some more regulations that could happen that you weren’t thinking about before. There’s sort of some assumed powers that you weren’t allowing for. That’s what a bill of rights might open up.

12:17 But not only that, he says the ultimate way that we protect all of these things is through the people. The people reserve all the powers, and it’s up to them to determine whether or not they’re going to allow a government to trample on the rights of other people in the system. And it doesn’t matter what kind of protections you have in the constitution. If that is not protected, if the people don’t want to defend it,

12:39 then it’s not going to be defended, no matter how many provisions we have in the name of trying to defend it or how many legal documents we have. And of course, you can see that happened in american history. Of course, the Bill of Rights does pass, as we mentioned before, and then immediately in the 1790s, you have the alien and sedition act, which makes certain statements about the government illegal people get arrested because of this.

13:01 So again, at the time, that wasn’t considered to be unconstitutional, but it’s an example of what people were willing to tolerate. That kind of thing then. And it didn’t matter that there was an amendment preventing the government from violating the press because the legislation passed anyway, right? So you can see this tension that although these things are good, they’re beneficial,

13:23 they’re not the ultimate protector of these rights. The ultimate protector of the rights are the people themselves. And so then he finally makes his concluding statement about the Bill of Rights and he says, look again, thinking about what these are. Well, the constitution itself is already doing this. If you’re talking about trying to protect explicit rights and ensure that the people have the rights that are bestowed upon

13:47 them by nature, then look no further than our constitution. He has a line here that says the constitution itself is a Bill of Rights. It is there that you have all of the protections that you need from government intruding upon the people and you can only lay down sort of that basis and then hope or hope but believe in the people to jealously guard their rights and protect them.

14:11 That’s the best kind of system that’s going to work. Simply stating out listing rights isn’t going to advance those any further than the constitution is already doing. The constitution itself is the Bill of Rights are looking for is what Publius is arguing. So just to summarize that a lot really quickly, because I know that was a lot. Basically he says, look, states don’t even have these Bill of Rights.

14:31 So what are we talking about? Right? New York doesn’t have one. They seem to be fine. So why all of a sudden does the national government need one? Well, why doesn’t New York have one? Well, they claim they don’t need it because they have a great constitution and the British common law tradition. Well, hey, guess who has a great constitution? We do. So we’re good there. And we also inherited this British common

14:52 law tradition, so that’s going to protect it. What are Bill of Rights anyway? He goes on to say. So if we’re going to talk about Bill of Rights, then we’re going to talk about the way that they’ve operated well in the past they were with monarchies or this relationship between the king and its subjects that doesn’t exist anymore. The people reserve all their rights in a republic, so there’s no need to carve out these special exceptions.

15:12 They may have been good in those instances, but now it’s not needed in that same way. Not only do we not need one, but it could be dangerous. Having this list of rights may in fact imply that the government has powers that it doesn’t actually have. So that’s not only going to be not only do not need it, but it could be dangerous to have one. And finally, the constitution itself is

15:33 performing all of the tasks that you seem to be asking for a Bill of Rights to do. Right. It’s already built into the system. The system itself is going to be protecting the rights of individuals. We don’t need this other thing called a Bill of Rights in order to protect it, because we have this constitutional system that already exists, is going to strongly protect the rights of the people. So, again, it’s important to keep in mind, a, we’ve only looked at a couple

15:56 of excerpts here, so I encourage you to go take a look at Publius’ argument itself. And two, I work for the Bill of Rights Institute, so I’m not actually advocating against the Bill of Rights. But it is important again to keep in mind what Publius’ argument was, because it’s interesting in thinking about the relationship between people in the government and how ideally he thought it was going to work out versus how now it’s worked out about throughout

16:20 American history, which is an interesting kind of game to play. The Bill of Rights is something that’s appealed to a lot, particularly after incorporation to the 14th Amendment. Those bills of rights now apply directly to states in a lot of cases. Seeing how the court has used that to expand political and civil rights to individuals is an interesting one. Would it have happened different if we didn’t have Bill of Rights? Possibly, what that might have looked like?

16:41 It’s an interesting thought process to go through. So I encourage you think about it, sort of wrestle with it, grapple with it. It’s an interesting counterfactual. So just really quickly, I want to touch on the other arguments that Publius is making here. He says, all right, so we got the Bill of Rights thing out of the way. What else is concerned? Well, one is the distance of people from the government, and he essentially says people are worried

17:03 that this government’s going to be national governments can be too far removed from people and they’re not going to know kind of what’s going on. Basically, he says, don’t worry about it. You’re going to know what’s going on because people are going to care about what’s happening to the national government, and the local people in the area are going to be reporting on that news. That news is going to be transmitted to the rest of the country. We’re going to be able to hold people accountable. It’s going to be fine.

17:23 This isn’t a worry that you actually need to have. And it’s not only that, but states are as big or big enough where communication starts getting tough, and yet no one is really worried about that. So, yeah, he says, don’t worry about it. The last objection he goes through in quite some detail is about growing expenses of the government,

17:43 that as the government grows, it’s going to be so expensive and prohibitively expensive, it’s going to be a problem. He basically delineates out, look, this isn’t a huge departure from the size of government that we had before, and so far as the legislature and the different federal offices that already existed. And honestly, this isn’t going to be a big deal either, so don’t worry about it. Neither of those arguments are quite as strong or convincing, I think, as his argument against the Bill of Rights.

18:07 I think that’s also why they don’t get as much attention from political scientists and historians. But they’re interesting nonetheless. Thinking about what it means in a representative government to actually hold your legislators accountable and what it means to be concerned about sort of the growing cost of government and governance are always important things to think about. So coming back to a big question what are the constitutional arguments going on?

18:30 Well, essentially what Publius is laying out here is an argument that the Constitution was built around this way that I mentioned in a couple of other Federalist videos talking about that there’s limited ends here to this government, but you got to have this unlimited means in order to execute those ends. And what this Bill of Rights would do is sort of change that relationship and it would be, hey, there’s these limited ends.

18:52 But also there are these things that the government can’t do when it comes to how it’s going to execute towards those ends. And that makes things complicated because all of a sudden, could that mean that there’s other ends that the government can work towards, say the regulation of the press that it wasn’t already delineated I was doing? Conversely, maybe there’s a need for the government in order to achieve safety and security.

19:14 Maybe it needs to limit something that might be protected by these Bill of Rights and now it can’t do that. So is that going to lead to ineffective government? That’s complicated, complicated question. But that’s the constitutional argument he’s making here on the Bill of Rights. He’s saying, look, it’s not needed, the Constitution’s protecting rights in a way that you think it needs to and that you’re calling for it to do.

19:35 And the constitutional system itself already exists in a way that having a Bill of Rights might complicate that relationship and we don’t want to do it. It could be dangerous, so let’s not. So thank you all again for joining me. I hope you got something out of that sort of fast march through Federalsit 84. It’s an interesting paper. I hope you’ll take some time to go back and read through it and think about it a little bit more.

19:57 It’s always important to think about Publius’ arguments, like I said, because we always should be reflecting and thinking about how our government is operating, whether it’s on a track that we think is sort of advancing liberty and our rights as we expect it to, or whether or not there are challenges going on. So that kind of thought is always important. I also hope that you just picked up some constitutional principles and ideas that you can take into other facets of learning about our government.

20:20 So thank you so much for joining. We’ll probably be doing more Federalist Papers, we’ll be doing more anti Federalist Papers, but we’ll also be doing some other documents as we move into the summer and then in the next fall as we continue our close reading of these documents from American history. So I hope you’ll like and subscribe. So you keep getting updates about these videos and also the videos of my colleagues, Mary, who does great visual primary source analysis, just like we’re doing here

20:44 with the written primary sources for my colleague Tony Williams, who has great conversations with scholars, as well as our Homework Help videos, which can help review all kinds of different Supreme Court cases or different issues for American history and government that can just help unpack some of these complex things that you may be learning about or maybe studying or just want to brush up on this as a citizen. So thank you so much for joining and we’ll see you next time.