Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous

Here is a paradox worth a whole afternoon. The most famous argument against a bill of rights was written by one of the men most responsible for getting the Constitution that now carries one. Alexander Hamilton told New York that a list of rights would be not only unnecessary but dangerous, and within three years the country adopted ten amendments anyway. So was Hamilton wrong? Let me argue that he was right about the danger, wrong about the cure, and that the Ninth Amendment is the proof that the First Congress read him carefully.

This is not an antiquarian quarrel. Every time a federal official says "show me where the Constitution says you have that right," he is making precisely the move Hamilton feared. And every time a citizen answers "show me where the Constitution gives you that power," he is making Hamilton's argument for him.

The setting in 1788

Federalist 84 is one of the last papers in the series, published in 1788 while the ratification fight was still raging in New York and Virginia. The Anti-Federalists had found their best weapon. The Philadelphia Convention had produced a charter with no declaration of rights, and George Mason, who had written Virginia's Declaration of Rights in 1776, refused to sign partly for that reason. The objection was simple, emotional and effective: a powerful new government, and nothing written down to stop it from trampling the press, the jury, or the conscience. (We cover Mason's refusal in George Mason Refused to Sign, and His Objections Became the Bill of Rights.)

Hamilton's answer has two halves. First, the Constitution already protects the rights that matter most against a national government. Second, adding a general list would be worse than useless. He builds both halves with care, and he deserves to be read in his own words.

What the original text already protected

Hamilton opens by reminding readers that the document they were attacking contained rights provisions already. He walks through them, and it is worth walking with him, because most civics classes skip straight to the amendments as though the 1787 text were a blank check.

• Habeas corpus. Article I, Section 9: "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."
• Attainders and ex post facto laws. The same section: "No Bill of Attainder or ex post facto Law shall be passed." Section 10 applies the same rule to the states.
• Titles of nobility. "No Title of Nobility shall be granted by the United States."
• Criminal juries. Article III, Section 2: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."
• Treason. Article III, Section 3 defines the crime narrowly and demands two witnesses to the same overt act or a confession in open court.
• Religious tests. Article VI: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Hamilton singles out two for praise. On arbitrary punishment he writes:

The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.

And on titles of nobility, which a modern reader might think of as a quaint ban on dukes, he is emphatic: the prohibition "may truly be denominated the corner-stone of republican government." He meant it. A republic dies when a hereditary class stands above the law, and the Framers wrote that conviction into the frame itself. (Washington's generation fought over titles in the very first Congress; see The Founders Fought About Titles, and His Highness Lost to Mr. President.)

The habeas clause is the older and harder of the two. It is the oldest liberty in the document, and every war has tested it, as Habeas Corpus Is the Oldest Liberty in the Constitution, and War Tests It shows. Hamilton's point is not that these provisions are complete. It is that the critics were wrong to say the Constitution had no rights in it.

The argument that a bill of rights is dangerous

Now the heart of the paper. Here is the passage, exactly:

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?

Then the example that every student should memorize:

Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Let me set the argument out in numbered premises, because it is tighter than its reputation.

1. The national government has only the powers the Constitution grants. Everything else stays with the states or the people.
2. No clause grants Congress a power over the press.
3. A clause saying "Congress shall not restrain the press" is therefore an exception to a power that does not exist.
4. A careful lawyer reading that exception will reason backward: you do not forbid what is impossible, so the drafters must have assumed a power over the press existed, limited only by this one rule.
5. Therefore a bill of rights hands the government's lawyers a "colorable pretext," a plausible-sounding argument, for powers the people never delegated.

That is not a debating trick. It is a standard rule of legal interpretation: the expression of one thing implies the exclusion of others. Lawyers in 1788 knew it by its Latin name, and judges still use it. Hamilton was warning that the people's own protective list could be turned into a map of where the government may go.

He adds a second, historical point. Bills of rights, he says, "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." Magna Carta, the Petition of Right, the English Bill of Rights of 1689: each was a bargain wrung from a monarch who claimed everything by default. An American government built by the people, holding only what the people lent it, does not need such a bargain. In his phrase, "Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations."

And a third point, which is the one conservatives should frame and hang on the wall. The Constitution, he says, "is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS." Structure is the protection. Enumerated powers, separated branches, two houses, elections, the veto, independent judges: these guard liberty before any list does. We make that argument at length in Structure Protects Minorities Before the Bill of Rights Ever Does.

The press passage, and why Hamilton doubted parchment

The most modern part of Federalist 84 is a footnote-length aside on the press. Hamilton asks what a declaration that the press shall be "inviolably preserved" would actually accomplish. Who can define the liberty of the press precisely enough to stop a determined legislature? His answer is sobering: the security of the press, "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."

That is the conservative insight in one sentence. Parchment does not defend itself. A free people does. The Soviet constitution of 1936 promised freedom of speech, of the press and of assembly on paper, and it was not worth the ink, which we take up in Bills of Rights Alone Never Saved a Republic, Ask the Soviet Constitution. A list of rights in the hands of a people who no longer believe in them is a museum exhibit.

The strongest objection, answered

Now let me give the other side its best shot, because the Anti-Federalists had a real one.

The objection. Hamilton's premise two, that Congress has no power over the press, was naive. The Necessary and Proper Clause lets Congress make all laws "necessary and proper for carrying into Execution" its powers. A government that can tax, regulate commerce, run the post office and raise armies can always find a link between those powers and a newspaper. Enumeration without a list of rights is a promise that depends on the good faith of the people holding power. Write it down.

That is a fair statement, and history gave it fierce support. In 1798, only seven years after the First Amendment was ratified, a Federalist Congress passed the Sedition Act, making it a crime to publish false, scandalous and malicious writing against the government, Congress or the President with intent to bring them into contempt. Its defenders argued that the power to punish seditious libel was implied, and that the First Amendment only barred licensing in advance. Congressman Matthew Lyon of Vermont was convicted and won reelection while in jail. (The story is in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell.)

So Hamilton's own party found a power over the press that he said did not exist. Score one for the Anti-Federalists.

The answer. Three points.

1. The Sedition Act proves the danger cuts both ways. Congress passed it with a First Amendment on the books. If a written guarantee could not stop it, the claim that a list of rights is a sufficient defense fails just as surely as Hamilton's claim that enumeration was. What stopped the Sedition Act was the election of 1800, public revulsion, and the act's own expiration on March 3, 1801. That is Hamilton's "general spirit of the people" doing its work.
2. The amendments that followed were drafted with his warning in view. The First Amendment does not say "the liberty of the press is protected." It says "Congress shall make no law." It is a limit on a branch, not a grant of a right by the government, which is exactly how you write a restriction without conceding a power.
3. The Ninth Amendment answers premise five directly. Which brings us to the most important sentence the First Congress ever wrote about rights.

Madison read Hamilton and wrote the Ninth Amendment

On June 8, 1789, James Madison rose in the House to propose amendments. He took up this very objection, calling it "one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system," and then promising that it could be guarded against. The guard became the Ninth Amendment, ratified in 1791:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Read it next to Hamilton's premise four. Hamilton said a list would be read as the whole of the people's rights. The Ninth Amendment says, in so many words, do not read it that way. Its companion, the Tenth, says the government's powers are only those delegated. Between them, the two amendments restate Hamilton's own theory as a rule of construction. Madison did not reject Hamilton; he answered him by writing his principle into the text. (Madison's change of heart is the subject of Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach.)

What later history says about the warning

Did the Ninth Amendment work? Partly, and the partial failure is Hamilton's vindication.

Courts largely ignored the Ninth Amendment for most of American history. Lawyers and judges came to treat the Bill of Rights as the main catalogue of protected liberties, and a right not on the list often found itself asking for permission. That is precisely the inversion Hamilton predicted: the list became the boundary of liberty rather than a sample of it.

At the other extreme, when the Court decided Griswold v. Connecticut in 1965, a concurring opinion leaned on the Ninth Amendment to support an unwritten right, and the Ninth became, for some, a warrant for judges to discover new rights at will. Neither reading is right. We argue the middle course in The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter: the Ninth tells you not to shrink the people's liberty because a right is unlisted, and it tells you nothing about which branch decides. In a republic, that answer is usually the people through their states.

The second half of the inversion is the one that should worry us more. Look at how a modern regulator reasons. Congress passes a broad statute. An agency claims a power under it. The citizen objects, and the reply is: which right on the list are you invoking? The burden has shifted from the government to prove its power to the citizen to prove his right. Hamilton saw that coming in 1788. The Supreme Court's turn in Loper Bright Enterprises v. Raimondo (2024), ending Chevron deference, and West Virginia v. EPA (2022), insisting that major questions belong to Congress, are steps back toward his order of operations: first ask whether the power was granted. (The principle that federal powers are "few and defined" is set out in Few and Defined, the Promise About Federal Power in Madison's Federalist 45.)

Who won the argument

Let me give the verdict plainly.

Hamilton lost the vote. The country wanted a bill of rights, Madison delivered one, and Americans have been grateful ever since. A people that can quote the First Amendment from memory has a tool for resisting power that an abstract theory of enumeration cannot match. The Anti-Federalists were right that ordinary citizens need something they can point to.

But Hamilton won the logic. His warning about implied powers proved real, his doubt about parchment proved real, and the only reason his warning did not swallow the whole system is that Madison answered it with the Ninth and Tenth Amendments. The best reading of the Founding is not Hamilton versus the Bill of Rights. It is Hamilton's structure plus the Bill of Rights, read through the Ninth and Tenth, defended by a people who still care. Take away any one of those and the others weaken.

And here is the part we should say without hedging: the Constitution's first line of defense is still the one Hamilton named. Government has only the powers granted. When a citizen hears a regulator ask "where is your right to do that?", the correct reply is Hamilton's, and it is older than the amendments: "Where is your power to stop me?"

The case in brief

1. Federalist 84 argued that a bill of rights would list exceptions to powers never granted, and so hand officials a pretext to claim those powers.
2. The 1787 text already protected habeas corpus, criminal juries and the ban on attainders, ex post facto laws, titles of nobility and religious tests.
3. The Sedition Act of 1798 showed both sides were partly right: implied powers were real, and parchment alone did not stop them.
4. Madison answered Hamilton with the Ninth and Tenth Amendments, writing his principle of enumerated powers into the text.
5. The right question is still Hamilton's: before asking what right you hold, ask what power the government was given.

What you can do: read Article I, Section 9 and the Ninth Amendment aloud with your family on the Constitution page, then ask your representative's office which enumerated power supports the next bill it votes on.