# Federalist No. 84: Against the Bill of Rights Published in late May 1788, Federalist No. 84 is [[Alexander Hamilton]]'s argument *against* including a bill of rights in the Constitution — an argument that lost the political fight (the [[Bill of Rights]] was ratified in 1791) but won an important intellectual concession (the [[Ninth Amendment]]). The essay reveals a fundamental tension in constitutional interpretation that persists to this day and exposes a central contradiction in modern conservative legal thought. ## The Argument Hamilton's case against a bill of rights rests on a structural insight about the nature of the Constitution. The Constitution creates a government of *enumerated powers* — the federal government can only do what the Constitution specifically authorizes it to do. Everything else is off-limits. Given this structure, Hamilton argues, a bill of rights is not only unnecessary but *dangerous*. The core argument: **"Why declare that things shall not be done which there is no power to do?"** If the Constitution does not grant the federal government power over the press, why include an amendment saying "Congress shall make no law... abridging the freedom of the press"? Such an amendment *implies* that the government would otherwise have that power — and thus inadvertently expands the scope of governmental authority by suggesting it possesses powers it was never granted. Hamilton puts it sharply: bills of rights "would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?" The danger is that a bill of rights converts a government of limited, enumerated powers into a government of *general* powers limited only by specific prohibitions. Hamilton also argues that the Constitution already contains structural protections equivalent to a bill of rights: the prohibition on suspension of habeas corpus, the prohibition on bills of attainder and ex post facto laws, the requirement of jury trial in criminal cases. These protections, embedded in the structure of the Constitution itself, serve the same function as a bill of rights without the dangerous implication of general governmental power. ## The Ninth Amendment Compromise Hamilton lost the political argument — the Anti-Federalists made the absence of a bill of rights a rallying point, and [[James Madison]] ultimately drafted and shepherded the first ten amendments through Congress. But Hamilton's intellectual argument produced the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Ninth Amendment is Hamilton's compromise position rendered as constitutional text. It says: yes, we have enumerated certain rights, but that enumeration does not imply the government has power over unenumerated rights. The Ninth Amendment exists *because* Hamilton identified the danger of enumeration — and Madison agreed the danger was real enough to require an explicit textual response. The Ninth Amendment is also one of the most neglected provisions in constitutional law. Conservative jurists who claim to follow the text have largely ignored an amendment that was specifically designed to prevent the interpretive error they routinely commit: treating the Bill of Rights as an exhaustive list of protected rights rather than illustrative examples. ## The RWKB Angle ### The Federalist Society Paradox The central irony: the [[Federalist Society]] fetishizes both the Federalist Papers *and* the Bill of Rights, apparently unaware that one of the Federalist Papers' most prominent arguments was *against* the Bill of Rights. The Federalist Society's project depends on claiming the authority of Hamilton and Madison as "original" interpreters of the Constitution while ignoring what Hamilton and Madison actually argued when they disagreed with each other or with modern conservative positions. Hamilton's No. 84 is particularly inconvenient because it reveals that the Framers themselves disagreed about fundamental questions of constitutional design. There was no single "original meaning" on the question of whether the Constitution needed a bill of rights — Hamilton said no, the Anti-Federalists said yes, and Madison changed his mind. [[Originalism]] as an interpretive methodology has to paper over this kind of foundational disagreement to maintain the fiction of a recoverable, unified original meaning. ### The Enumerated Powers Argument and Modern Government Hamilton's structural argument — that the federal government possesses only enumerated powers and therefore a bill of rights is superfluous — has been overtaken by two centuries of constitutional development. The [[Commerce Clause]], the Necessary and Proper Clause, the Spending Clause, and the war powers have expanded federal authority far beyond what Hamilton could have imagined. In this expanded-powers environment, the Bill of Rights serves exactly the protective function the Anti-Federalists argued it would need to serve. Modern conservatives selectively deploy Hamilton's enumerated-powers argument. They invoke it to challenge federal regulatory authority (the administrative state, environmental regulation, labor law) but abandon it when the federal government exercises power they approve of (immigration enforcement, military spending, drug prohibition). The selective deployment reveals that the argument is instrumental rather than principled — a tool for achieving preferred policy outcomes, not a genuine commitment to constitutional structure. ### The Ninth Amendment Black Hole The Ninth Amendment — Hamilton's intellectual legacy in the Bill of Rights — remains the most underdeveloped provision in constitutional law. Conservative jurists treat it as a dead letter, despite its clear textual instruction that enumerated rights do not exhaust the people's rights. When the Supreme Court recognized unenumerated rights (privacy in *Griswold v. Connecticut*, reproductive autonomy in *[[Roe v. Wade]]*), conservative legal theory attacked the recognition as judicial overreach — ignoring that the Ninth Amendment explicitly contemplates rights beyond those enumerated. The Ninth Amendment is the textual proof that Hamilton's argument in No. 84 was taken seriously by the founding generation. Ignoring it while claiming to follow the Founders' intent is a contradiction that modern [[Originalism]] has never resolved. ## See Also - [[Federalist Papers]] — MOC for the collection - [[Anti-Federalist Papers]] — The opposition whose demand produced the Bill of Rights - [[Alexander Hamilton]] — Author - [[James Madison]] — Drafted the Bill of Rights in response to Anti-Federalist pressure - [[Federalist Society]] — Organization that venerates both this essay's authors and the Bill of Rights they argued against - [[Originalism]] — Interpretive methodology that must paper over the Framers' own disagreements - [[Consent of the Governed]] — The legitimacy principle underlying the enumerated-powers structure - [[Checks and Balances]] — The structural protections Hamilton argued were sufficient without a bill of rights