Justice Scalia on the Federalists’ view of the Bill of Rightsįederalist No. It would suggest, in other words, that the government has a great deal of power that is nowhere granted to it in the Constitution. Thus, Hamilton argues in Federalist 84 that to include a bill of rights would suggest, by implication, that if the bill of rights were not there, the government would be permitted to infringe on those rights. For this reason, the Constitution seeks to be clear about which specific powers the government does have, on the understanding that it does not have any powers beyond these. In general, then, the Constitution as understood by the Federalist does not primarily aim at articulating the legal rights of individuals but at limiting the government’s ability to exceed the narrow boundaries of the powers that are entrusted to it. As the number of narrow and frequently selfish interest groups multiplies, it becomes more difficult for any one of them to dominate an election or to seize control over any part of the government. Similarly, by enlarging the representatives’ districts and the total number of representatives, the Constitution uses the dangerous narrow-minded tendencies of political actors against themselves. As each branch jealously prevents the other branches from usurping any power not lawfully granted to it, the whole government is kept within its limited mandate. By granting each branch of government a certain limited power over other branches, the Constitution channels the ambition of office-holders, which normally causes them to abuse their power and exceed their lawful limits, toward guarding their powers against the illegitimate expansion of the other branches of government. The two most famous examples of this kind of institutional thinking in the Federalist are its defense of checks and balances and its defense of the large republic as a measure against majority faction. These arguments reflect a consistent theme in the The Federalist that the principal means of protecting the liberty of the individual are institutions of government designed in such a manner as to limit and frustrate its power to infringe on such liberties. 84, Alexander Hamilton, under the pseudonym “Publius,” argues that a bill of rights is not only unnecessary in a well designed constitution but is even dangerous. 84) offers a defense of the Constitutional Convention’s unpopular decision to omit a bill of rights, and therefore not to recognize explicitly the freedom of speech or press. The second to last essay in the Federalist (No. The Federalist stands as the most comprehensive and systematic articulation by the Founders of the reasoning behind the design of the United States Constitution. The Federalist is the title given to a series of essays by Alexander Hamilton, James Madison, and John Jay defending the Constitution to New Yorkers in an effort to promote its ratification.
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