Papers 84-85: Bill of Rights and Conclusion

Hamilton announces that he will address miscellaneous objections to the Constitution that were not covered in previous papers, committing to brevity by covering all points in a single paper.

The primary remaining objection is that the Constitution contains no bill of rights, despite many state constitutions having them.

Hamilton notes that New York's constitution lacks a bill of rights prefixed to it, yet contains various rights provisions throughout and incorporates British common law, supporting his argument that the federal Constitution need not have a separate bill of rights.

Hamilton catalogs specific protections in the Constitution regarding impeachment, habeas corpus, bills of attainder, ex post facto laws, titles of nobility, jury trial, and treason, demonstrating that it contains substantive rights protections.

Hamilton argues that the rights protections in the Constitution are equal or superior to those in New York's constitution, particularly highlighting the importance of habeas corpus and prohibition of titles of nobility as safeguards against tyranny.

Hamilton invokes Blackstone's authority to establish that arbitrary imprisonment is the most dangerous engine of tyranny, and that habeas corpus is the bulwark against it.

Hamilton asserts that the prohibition of nobility is the fundamental protection for republican government, as long as titles are excluded the government cannot become despotic.

Hamilton contends that common and statute law are subject to legislative repeal and therefore lack constitutional sanction, so they cannot constitute a bill of rights which must limit government power itself.

Hamilton traces the historical origin of bills of rights as agreements between monarchs and subjects limiting royal prerogative, arguing that this model is inapplicable to a constitution founded on popular sovereignty.

Hamilton argues that the Constitution's preamble asserting popular sovereignty and establishment provides a better recognition of rights than formal bills of rights, since the people retain all rights and need no special reservations.

Hamilton contends that detailed enumeration of private rights is inappropriate for a Constitution that merely regulates general political interests, unlike state constitutions that regulate personal concerns.

Hamilton argues that bills of rights would be dangerous because exceptions to powers not granted could imply that such powers exist, giving plausible pretense for claiming broader authority.

Hamilton uses press liberty as a concrete example, arguing that declaring it inviolable without defining it provides a pretext for claims that regulating power was intended to be granted.

Hamilton observes that press liberty in New York has no declaration in its constitution, and that declarations about press liberty are meaningless without definition; its security depends ultimately on public opinion and the spirit of the people and government.

Hamilton redefines the issue by asserting that the Constitution itself, in its entirety, functions as a bill of rights by declaring political privileges and defining immunities and procedures related to personal concerns.

Hamilton identifies another objection: that the national government will be too remote from many states for constituents to have proper knowledge of their representatives' conduct.

Hamilton argues that if the distance objection were valid, it would prove there should be no general government at all, which refutes the objection since all parties agree some general government is necessary.

Hamilton contends that the distance objection rests on a palpable illusion, demonstrating that people far from government seats already rely on information from intelligent intermediaries rather than personal observation for judging state representatives.

Hamilton argues that the same sources of information available for state government oversight would apply to national representatives, and state governments themselves will serve as sentinels monitoring national officials.

Hamilton notes that those living at the capital will share common interests in general liberty and prosperity with distant citizens and will help sound alarms against abuse, and newspapers will rapidly spread information.

Hamilton identifies an extraordinary and colorable objection claiming the Constitution tacitly relinquishes the nation's debts, which he dismisses as entirely without foundation and born of ignorance or dishonesty.

Hamilton identifies the final significant objection: that the new government would greatly increase public expense, which he claims deserves no weight regardless.

Hamilton notes that Americans generally recognize Union as essential to political happiness, and agreement exists on need for radical alterations and expanded national powers, which concedes that expense questions must be set aside.

Hamilton demonstrates that the legislature's initial size of sixty-five persons equals the existing Congress size and must increase with population, arguing that any smaller number would be unsafe.

Hamilton argues that principal administrative departments will be the same under the new government as the old, and ambassadors will only become more respectable.

Hamilton contends that revenue officers under the new system will replace state officers rather than create an increase, so there should be no net increase in expense.

Hamilton identifies federal judges as the chief additional expense, but argues this will be modest and not materially consequential under any reasonable plan.

Hamilton notes that since Congress already has a president, the President of the United States will not create substantial additional expense beyond what already exists.

Hamilton argues that the President taking over much of Congress's business, including foreign negotiations, will allow for temporary rather than constant legislative sessions, creating considerable savings.

Hamilton demonstrates that since two thousand state legislators currently handle United States business alongside Congress, consolidating this work into sixty-five national legislators will produce massive savings from reduced state session time.

Hamilton concludes that additional expenses are fewer than imagined, offset by significant savings, and that a less expensive government would be inadequate to the Union's purposes.

Hamilton notes that two remaining topics (analogy to state constitution and security to liberty/property) have been exhausted in prior discussion, so he will not repeat but instead address remaining points.

Hamilton demonstrates that alleged defects in the federal Constitution (re-eligible executive, lack of council, no bill of rights, no press liberty provision) are equally present in New York's constitution, exposing the insincerity of critics.

Hamilton catalogs the protections derived from adopting the Constitution: restraint of local factions, prevention of foreign intrigue, prevention of military establishments, guaranty of republican form, exclusion of nobility, and prevention of state government practices harmful to property and credit.

Hamilton declares he has completed his assigned task, claiming to have addressed readers' judgments with restraint while avoiding the distemper characteristic of political disputes, though sometimes provoked by opponents' conduct.

Hamilton asks readers to judge whether the Constitution has been vindicated from criticism and is worthy of adoption, and insists each citizen bears an inescapable duty to decide according to conscience and in the nation's interest rather than partial motives.

Hamilton declares complete confidence in his arguments for the Constitution and inability to discern real force in objections against it, asserting it is the best system the nation's circumstances permit.

Hamilton addresses the objection that concessions about imperfection are used to argue the Constitution should be amended before adoption, which he calls plausible but unfounded.

Hamilton argues that critics have misrepresented modest concessions about imperfection as admissions that the Constitution is radically defective, when advocates simply claim it is good and best available.

Hamilton contends it would be extreme imprudence to delay establishment by seeking perfection through successive experiments, noting that no imperfect man creates perfect work and collective bodies necessarily compound errors with wisdom.

Hamilton cites an excellent pamphlet demonstrating the utter improbability that a new convention could meet under circumstances as favorable as the late one, making amendments through another convention impractical.

Hamilton demonstrates mathematically that it is far easier to amend the Constitution after adoption (nine states needed) than to achieve adoption with amendments beforehand (thirteen states needed).

Hamilton explains that accommodating thirteen states in an original constitution requires complex compromises where majorities shift on different questions, multiplying difficulties in achieving consensus.

Hamilton argues that amendments, once the Constitution is established, would be single propositions without need for cross-issue compromise, allowing nine or ten states to effect change decisively.

Hamilton refutes the objection that national rulers will resist amendments by invoking the Fifth Article which mandates Congress call a convention when two-thirds of state legislatures request it, leaving no discretion.

Hamilton contends that uniting two-thirds or three-fourths of state legislatures on amendments for general liberty will be far easier than on those affecting local interests, as state governments will resist national encroachment.

Hamilton asserts his amendment argument is one of the rare instances where political truth can be brought to mathematical proof, and those who see it correctly must agree to prior adoption as the best path to amendments.

Hamilton quotes Hume's observation that balancing a large state requires multiple judgments united, experience guiding, time perfecting, and feeling of inconveniences correcting, as counsel for moderation in seeking amendments.

Hamilton acknowledges his concern about prolonging the nation's precarious situation and risks of anarchy, civil war, state alienation, and military despotism, which he calls an awful spectacle.

Hamilton describes the establishment of a Constitution in peacetime by voluntary consent of a people as a prodigy that requires trembling anxiety and should not be jeopardized by recommencing the course.