The Federalists and the Bill of Rights

[Marci Hamilton]

Doug Laycock's statement that some of the Federalists believed the argument
that no bill of rights was necessary and some did not, and that Madison didn't
really believe it, is simply ahistorical.  Madison and Wilson, the foremost
framers of the structure of the Constitution, especially the concept of
enumerated powers, were astounded when the draft Constitution was criticized
for having no bill of rights.  They believed a list of rights was utterly
redundant.  Indeed, Wilson disappears from the historical picture at this
point because he could not take seriously the notion that a bill of rights was
necessary.  The politically savvier Madison stayed in the game, but did not
alter his essential viewpoint re: the relationship between enumerated powers
and a bill of rights.

In fact, one of the ways to explain the paltry debate over the supposedly
crucial bill of rights in Congress is that everyone understood that the bill
was nothing more than a reiteration of the limited power principle already in
place in the Constitution.  The now-idolatrous attitude toward the Bill of
Rights simply was not present at the framing of the First Amendment, and
certainly not held by the Federalists.

Marci Hamilton
Benjamin N. Cardozo School of Law
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New York, NY   10003
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