The original Constitution of 1788 contained very few specific restrictions on the ways in which the power of the national government could be exercised against the people. It guaranteed the right to trial by jury in criminal (but not civil) cases, placed limits on prosecutions and punishments for treason, forbade bills of attainder (laws aimed at particular persons) and ex post facto laws (laws that punished conduct that was legal when it happened), limited any restrictions on habeas corpus to certain designated emergencies, and prohibited the granting of titles of nobility. But the Constitution that emerged from the 1787 Constitutional Convention contained nothing like a comprehensive bill of rights. Most state constitutions of the time had bills of rights, and many citizens—and members of the Constitutional Convention—expected the new national constitution to have one as well. Nonetheless, the state delegations at the Constitutional Convention voted 10-0 against including a bill of rights in the Constitution.
The sense of the Convention delegates was that a bill of rights, in the context of the federal Constitution, was unnecessary and even dangerous. It was considered unnecessary because the national government was a limited government that could only exercise those powers granted to it by the Constitution, and it had been granted no power to violate the most cherished rights of the people. There was, for example, no need for a provision protecting freedom of speech against Congress because, as James Wilson put it, “there is given to the general government no power whatsoever concerning it.” Edmund Randolph made the same point regarding freedom of religion, emphasizing that “[n]o part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion.” Similar remarks were made during the drafting and ratification process regarding juries in civil cases, general warrants, and cruel and unusual punishment. The consistent line of the Constitution’s defenders was that no bill of rights was necessary because the limited and enumerated powers of the national government simply did not include the power to violate those rights.
They even maintained that inclusion of a bill of rights would be dangerous, because it might suggest that the national government had powers that it had not actually been granted. As Alexander Hamilton put it, bills of rights “would contain various exceptions to powers 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?” Moreover, any list of rights would be incomplete. Such a list might indirectly endanger any rights not included on it.
In sum, the Constitution’s Framers thought that a bill of rights was appropriate for an unlimited government, but not for a limited one like the national government created by the Constitution. The Constitution accordingly sought to secure liberty through enumerations of powers to the government rather than through enumerations of rights to the people.
Not everyone was convinced by these arguments. Indeed, the absence of a bill of rights threatened to derail ratification of the Constitution, especially in key states such as Massachusetts and Virginia. A number of states ratified the Constitution only on the express understanding that the document would quickly be amended to include a bill of rights. The first Congress accordingly proposed twelve Amendments, the last ten of which were ratified in 1791 and now stand as the Bill of Rights.
The first eight of those ratified Amendments identify various rights of the people involving such things as speech, religion, arms, searches and seizures, jury trials, and due process of law. The last two address the concerns of the Constitution’s defenders that these enumerations of rights were pointless and even dangerous.
The Tenth Amendment’s simple language—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—emphasizes that the inclusion of a bill of rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers.
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