Alexander Hamilton on Constitutional Silence

Alexander Hamilton warned us a long time ago about the arguments that would be made right here in this blog, that when the Constitution is silent, the majority can override rights. From Federalist 84:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They 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? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

I have long found it interesting that Justice Scalia, a self-professed devotee of the Federalist Papers who thinks that all Americans should read them, appears to take Hamilton’s words as directions, rather than a warning.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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31 Responses to Alexander Hamilton on Constitutional Silence

  1. Scott Hanley says:

    Of course, if the 9th Amendment isn’t enough to forestall that argument, then it’s hard to believe a complete silence on the issue would be any sort of stumbling block. I think Hamilton was right about the mischief some folks would make with a BOR, but he was naive – or more likely BS’ing – to argue that it would be harder to expand power without one. And, yes, it’s highly disgraceful that people as well-read as Scalia, or even George Will, routinely argue exactly as Hamilton warned that scoundrels would do.

  2. ppnl says:

    Your point about Scalia is valid but it isn’t limited to the modern world. Even the founders were guilty. Consider Hamilton’s objection in light of the fact that freedom of the press is explicitly guarantied, there is no explicit power granted to government to infringe the liberty of the press and yet they saw fit to pass the aliens and sedition act.

  3. James Hanley says:

    ppnl,

    But as they pointed out, they weren’t actually preventing anyone from publishing anything they wanted, they were just punishing them after the fact. See, perfect liberty.

  4. I’m against criminal sedition laws as a matter of principle and because I believe it obviously has a chilling effect. But was the sedition act, by the standards of 18th and 19th century and even early 20th century jurisprudence, really a violation of the first amendment?

    I’m thinking specifically, if I recall correctly, of the fact that under the law, sedition was illegal only if the seditious statement was “false.” My point is that although by most standards, especially mine, sedition acts are unconscionable, they might not have been beyond the pale in 1790s US.

  5. OFT says:

    Consider Hamilton’s objection in light of the fact that freedom of the press is explicitly guarantied, there is no explicit power granted to government to infringe the liberty of the press

    Explicitly? Not sure. Blasphemy was a fine and prison time. Blasphemy violates the DOI.

  6. Jon Rowe says:

    “Blasphemy violates the DOI.”

    Actually the DOI gives man an unalienable right to blaspheme. Consider the words of one of the author:

    “An incarnate God!!! An eternal, self-existent, omnipresent omniscient Author of this stupendous Universe, suffering on a Cross!!! My Soul starts with horror, at the Idea, and it has stupified the Christian World. It has been the Source of almost all of the Corruptions of Christianity.”

    — John Adams to John Quincy Adams, March 28, 1816.

  7. OFT says:

    Explicitly, not meaning the liberty in general, but the scope of the liberty.

  8. James Hanley says:

    Nothing violates the Declaration of Independence. It’s a political manifesto, not law.

  9. OFT says:

    Jon wrote: <i.Actually the DOI gives man an unalienable right to blaspheme.

    Blasphemy had to be committed in public, in order to be prosecuted. That is a private letter from a dad to his son. JA wrote to TJ that publically attacking the Scriptures was outlawed.
    http://books.google.com/books?id=zZu63qz85nsC&pg=PA400&lpg=PA400&dq=blasphemy+in+the+18th+century+america&source=bl&ots=KvtI_R4FEv&sig=yXLA5fuFf9czSfAg7rL8uiLLptA&hl=en&ei=DLebTIjCEoqesQPO_6n0CA&sa=X&oi=book_result&ct=result&resnum=3&ved=0CBgQ6AEwAg#v=onepage&q=adams&f=false

    Also, Christianity encompassed many versions. Politically, unitarians were considered Christians. Only explicit violations were prosecuted, such as People v Ruggles 1811:

    “tends to corrupt the morals of the people, and to destroy good order.”
    -Justice Kent.

    In fact, the Court said, profane public disrespect for Christianity should be punished. It may sound ticky-tack, but if the obscenity was scurrilous enough as in Ruggles it was prosecuted.

    It could be that public rants against theology (trinity, incarnation, etc.) could go to court. Are you aware of any cases?

  10. Mark F. says:

    Hamilton was a hypocrite, as he favored vast expansions of the central government in practice. On the other hand, it can’t be denied that the Constitution was a coup to expand government and anyone who said government could be limited in any significant sense was a fool, a liar or naive. I can’t believe that not having a Bill of Rights would have made much difference, if any. The 9th Amendment is ignored as it is.

  11. OFT says:

    Nothing violates the Declaration of Independence. It’s a political manifesto, not law.

    I believe the DOI and Constitution are interdependent:

    [T]he latter [the Constitution] is but the body and the letter of which the former [the Declaration of Independence] is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.

    -U. S. Supreme Court, Ry. Co. v. Ellis, 165 U. S. 150, 160 (1897).

    The FF’s dated their documents from 1776, when the nation started. The Const. is the carrying out of principles declared in the DOI.

  12. D.A. Ridgely says:

    Tsk, tsk, OFT. The more complete and therefore more intellectually honest quote is:

    While such declaration of principles [from the Declaration of Independence] may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence.

  13. Michael Heath says:

    Pierre Corneille says:

    . . . was the sedition act, by the standards of 18th and 19th century and even early 20th century jurisprudence, really a violation of the first amendment?

    I’m thinking specifically, if I recall correctly, of the fact that under the law, sedition was illegal only if the seditious statement was “false.” My point is that although by most standards, especially mine, sedition acts are unconscionable, they might not have been beyond the pale in 1790s US.

    I just happen to be reading the section of Gordon Wood’s Empire of Liberty on the Federalists passing a law on sedition. The below are summarized points from that book, pages 256 – 262.

    Common law of the time didn’t require sedition to be false for a defendant to lose. In fact sedition based on a true rendering of the facts was considered an aggravating factor. This perspective was weakened in a case in New York in 1735 but never fully eradicated when Congress passed their prohibition against sedition and Adams signed it into law.

    Some courts were so eager for the sedition law to pass that once it became debated in Congress they began convicting publishers prior to its passage.

    Libel in this period caused far more serious damage then now because law enforcement was mostly and effectively non-existent. So elected official’s authority to rule came from the ongoing support of the people, and that authority was effectively compromised when partisan newspapers were able to run with stories that resonated with the people. It should also be noted that the press of the time was far more partisan than they are today and are far more willing to libel their partisan opponents, think Glenn Beck and Rush Limbaugh as the standards not the exception. This isn’t a defense of the Federalist’s Sedition Act but instead my arguing we need to analyze the Act within the framework of the times rather than our own.

    ppnl stated:

    Even the founders were guilty. Consider Hamilton’s objection in light of the fact that freedom of the press is explicitly guarantied, there is no explicit power granted to government to infringe the liberty of the press and yet they saw fit to pass the aliens and sedition act.

    I used the same source and Ron Chernow’s biography of Hamilton (paperback, pages 570 and 572-3 for the following.

    Both historians note that Hamilton objected to rushing the bill through . Chernow also notes that Hamilton also saw elements of the Act he found objectionable to the point of being “tyrannical”. However Chernow has Hamilton accepting the act upon passage and advocating its use in some cases.

    Again some perspective; many of the newspaper publishers were not Americans and yet were here advocating for the cause of the French in a way that Federalists believed was traitorous to a new nation not yet confident it could independently exist. We look back and history teaches us to defend those principles, they had no such benchmark to use as a lesson learned while existing in far more tenuous times.

    The seditious and libelous acts of republican newspapers risked society itself sinking into anarchy; vandalism against newspaper buildings was common and a brawl in Congress with one member caning another buttressed this perspective. Of course from the other side and in our hindsight the Federalists appeared much like the conservatives* of today attempting to keep the Mexicans out, especially when it came Irish immigrants who were disproportionately pro-French rather than favoring the Brits like the Federalists.

    *I’m not claiming the Federalists were conservatives or the legacy of today’s movement. I closely identify far more with the Federalists and see some but not a whole bunch in their positions that compare to today’s conservative movement. E.g., A. Hamilton was about as progressive in mindset and policy prescriptions as one could get where his primary enabler was George Washington. “Progressive” in the sense of believing government has a critical role to play in an economy and one should leverage it even if it violated classically liberal ideals.

  14. Michael Heath says:

    Same post, retry (Would love preview or edit functionality):

    Pierre Corneille says:. . . was the sedition act, by the standards of 18th and 19th century and even early 20th century jurisprudence, really a violation of the first amendment?

    I’m thinking specifically, if I recall correctly, of the fact that under the law, sedition was illegal only if the seditious statement was “false.” My point is that although by most standards, especially mine, sedition acts are unconscionable, they might not have been beyond the pale in 1790s US.

    I just happen to be reading the section of Gordon Wood’s Empire of Liberty on the Federalists passing a law on sedition. The below are summarized points from that book, pages 256 – 262.

    Common law of the time didn’t require sedition to be false for a defendant to lose. In fact sedition based on a true rendering of the facts was considered an aggravating factor. This perspective was weakened in a case in New York in 1735 but never fully eradicated when Congress passed their prohibition against sedition and Adams signed it into law.

    Some courts were so eager for the sedition law to pass that once it became debated in Congress they began convicting publishers prior to its passage.

    Libel in this period caused far more serious damage then now because law enforcement was mostly and effectively non-existent. So elected official’s authority to rule came from the ongoing support of the people, and that authority was effectively compromised when partisan newspapers were able to run with stories that resonated with the people. It should also be noted that the press of the time was far more partisan than they are today and are far more willing to libel their partisan opponents, think Glenn Beck and Rush Limbaugh as the standards not the exception. This isn’t a defense of the Federalist’s Sedition Act but instead my arguing we need to analyze the Act within the framework of the times rather than our own.

    ppnl stated:Even the founders were guilty. Consider Hamilton’s objection in light of the fact that freedom of the press is explicitly guarantied, there is no explicit power granted to government to infringe the liberty of the press and yet they saw fit to pass the aliens and sedition act.

    I used the same source and Ron Chernow’s biography of Hamilton (paperback, pages 570 and 572-3 for the following.

    Both historians note that Hamilton objected to rushing the bill through . Chernow also notes that Hamilton also saw elements of the Act he found objectionable to the point of being “tyrannical”. However Chernow has Hamilton accepting the act upon passage and advocating its use in some cases.

    Again some perspective; many of the newspaper publishers were not Americans and yet were here advocating for the cause of the French in a way that Federalists believed was traitorous to a new nation not yet confident it could independently exist. We look back and history teaches us to defend those principles, they had no such benchmark to use as a lesson learned while existing in far more tenuous times.

    The seditious and libelous acts of republican newspapers risked society itself sinking into anarchy; vandalism against newspaper buildings was common and a brawl in Congress with one member caning another buttressed this perspective. Of course from the other side and in our hindsight the Federalists appeared much like the conservatives* of today attempting to keep the Mexicans out, especially when it came Irish immigrants who were disproportionately pro-French rather than favoring the Brits like the Federalists.

    *I’m not claiming the Federalists were conservatives or the ancestors of today’s conservative movement. I closely identify far more with the Federalists and see some but not many of their positions that compare to today’s conservative movement just like we see some from that period’s Republicans. Certainly neither party of of that time defined itself with the anti-intellectual mindset we encounter from today’s conservatives which is their single most dominant feature. E.g., A. Hamilton was about as progressive in mindset and policy prescriptions as one could get where his primary enabler was George Washington. “Progressive” in the sense of believing government has a critical role to play in an economy and one should leverage it even if it violated classically liberal ideals.

  15. Michael Heath says:

    I forgot to add that Sedition Act did allow defendants jury trials where those juries could consider truth as a defense. This was not a protected right in common law of that time. Therefore some Federalists argued the Sedition Act was a liberalization of proceedings against those accused of sedition. (Wood, page 260).

  16. tom van dyke says:

    While such declaration of principles [from the Declaration of Independence] may not have the force of organic law…

    To my knowledge, the first entries under the US Code are called “the organic laws of the United States”—the Declaration, the Articles, the NW Ordinance and the Constitution. [The Articles were superseded by the Constitution; the NW Ordinance was re-passed by Congress under the new constitutional regime of 1787.]

    http://uscode.house.gov/download/pls/organiclaws.txt

    I have no argument or dispute here—it seems to be an established judicial sentiment that the D of I has no legal force—but I find the cite, U. S. Supreme Court, Ry. Co. v. Ellis, 165 U. S. 150, 160 (1897) confusing per the term “organic law.”

    If anyone has any info, thx in advance. This has been in my to-do file for awhile now.

  17. James Hanley says:

    Re: Preview/edit function. I’ll look into it. No promises, though.

  18. James Hanley says:

    Re: Tom Van Dyke’s question.

    This is an off-the-cuff answer, no more. That organic law section of the U.S. Code includes proposed amendments to the Constitution that were not ratified, so clearly that section of the Code isn’t “law” as we’re accustomed to thinking of it. I suspect–merely a hunch–that those, along with the DofI and Articles of Confederation, are contained in that “organic law” section of the Code for historical purposes, rather than substantive or effective purposes. The Court, it would appear, was using the term Organic Law in its proper meaning, as the foundational laws defining and giving shape and authority to a government.

    Re-reading that section of the Code made me wonder, though, did the First Congress under the Constitution re-pass the Northwest Ordinance–which was an ordinance of the Confederate Congress under the Articles–or did they just assume its continuing legitimacy? (I’m sure I could look that up, but it’s inconvenient right now, so I’m just tossing the question out there.)

  19. Michael Heath,

    Thanks for your answer. You’ve certainly looked into it, and thought more about it, than I had (I haven’t read Wood’s book yet).

  20. tom van dyke says:

    proposed amendments to the Constitution that were not ratified

    Thank you, James. That part is interesting, no doubt put in before the Bill of Rights was debated and ratified.

  21. James Hanley says:

    Tom,

    No, actually. It contains all the proposed amendments that have been approved by Congress but never ratified, up to and including the failed Equal Rights Amendment. So clearly that section gets updated.

    It surprised me, too.

  22. tom van dyke says:

    Thx, man. Jim Allison does his usual good job:

    http://candst.tripod.com/doi-pream.htm

    At most, the “Organic Laws” are a preamble to the US Code [they have no numbers]. Preambles have no force of law.

    Still, the first congress assigned these things some value; it seems to me that one’s view of the Constitution need not ignore the Declaration, if one is interested in the spirit of the laws as U. S. Supreme Court, Ry. Co. v. Ellis, 165 U. S. 150, 160 (1897). I think of it as a foundation for the “right to have rights.”

    On the other hand, that stuff in Ry Co. v. Ellis would be considered in dicta, commentary, not a finding of fact or principle. One can also ignore the Declaration and still have a valid view of the Constitution.

  23. OFT says:

    A perusal of the Articles of Confederation tell us, they were ratified, meaning the DOI is Law. Furthermore, it appears the Constitution cannot be discerned without understanding the principles laid out in the DOI. Only Law can be ratified:

    And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the united States in congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the States we respectively represent, and that the union shall be perpetual. In Witness whereof we have hereunto set our hands in Congress.

    Done at Philadelphia in the State of Pennsylvania the ninth Day of July in the Year of our Lord one thousand seven Hundred and Seventy-eight, and in the Third Year of the independence of America. [bold face mine]

    The Father of the Revolution tells us that the Articles were ratified, and that the DOI has never been disannulled:

    Before the formation of this Constitution, it had been affirmed as a
    self evident truth, in the declaration of Independence, very
    deliberately made by the Representatives of the United States of
    America in Congress assembled that, “all men are created equal, and are
    endowed by their Creator with certain unalienable rights.” This
    declaration of Independence was received and ratified by all the States
    in the Union, and has never been disannulled
    .

    -Samuel Adams, TO THE LEGISLATURE OF MASSACHUSETTS. JANUARY 17, 1794. The Project Gutenberg EBook of The Original Writings of Samuel Adams, Volume 4.

    I know Jon had disagreed with this understanding, however, the Articles themselves, settle the question.

  24. OFT says:

    I actually am referring to a Constitution must be ratifed to become Law.

  25. OFT says:

    Not only did the Articles ratify the DOI to become Organic Law, thus, the DOI has just as much authority as any Constitution.

  26. D.A. Ridgely says:

    The Articles of Confederation are not law. They once were, insofar as they constituted a compact among sovereign states, but they ceased to be so when superseded by the Constitution. Ratification does not apply, as a matter of legal usage, only to law or laws or Law, whatever the hell capitalizing the word is supposed to convey. The Declaration of Independence is not law and sophistry will not make it so. Quoting out of context (what Mr. van Dyke correctly labels as dicta in any case) or finding a single source that can be construed to support a legal proposition all but universally denied by legal experts does not validate that position. It does, however, shed light on the intellectual integrity of the person engaging in such practices.

  27. James Hanley says:

    A perusal of the Articles of Confederation tell us, they were ratified, meaning the DOI is Law.

    I probably shouldn’t even engage, but against my better judgment, here are three reasons why OFT is wrong.

    Of course the Articles of Confederation were ratified. The Continental Congress began drafting them at the same time they began drafting the Declaration, although it took much longer to complete the Articles. Ratification was completed in 1781, and it was the governing document of the Confederation until the Constitution received enough state ratifications to replace it in 1788, and the new government was elected and began sitting in 1789.

    But any laws authorized by the Articles were effectively void after they were replaced by the Constitution. There were precious few things that could be considered law because that Congress wasn’t granted real lawmaking authority, but anything that could be considered a law would have to be-done by the new Congress to continue as law. Unless the Congress of the United States passed a statute affirming the DOI as law, with the president’s signature or over his veto, it cannot still be law, so it would be inaccurate, at best, to say it “is” law.

    Anyway, ratification of the Articles cannot be said to have made the DOI “law” as the Articles don’t even mention the DOI.

    Third, the DOI cannot be law because it has nothing enforceable in it. It contains no directives or orders as laws do. That’s not surprising because it was not directed toward the people of America (except in a hortatory sense, to get them excited and build support), but was a proclamation to the King of England and to other nations stating our claim to independence and our reasons for asserting that claim. Being directed toward other countries, it could not possibly be law, because they had, and we still have, no authority to promulgate laws binding other countries.

    There is a reasonable argument to be made that the Constitution can, perhaps should, be read in the light of the Declaration. But there is no logical way that I can see to support the claim that the DOI is itself “law” in any meaningful sense.

    The emphasis on the point that the DOI has never been “disanulled” is just strange. I assume OFT means “annulled” or “disratified,” but to do so would simply mean we had repudiated our independence. Of course we haven’t done that.

    The Samuel Adams quote about the DOI being “ratified by all the states” is curious. The DOI did not require ratification–it was simply approved by “the representatives of the United States of America, in General Congress, assembled,” which is not the same as ratification of the states. Does anyone know, did the state legislatures each actually “ratify” or in some way formally approve the DOI? It would have been a superfluous act, but historically interesting in its own right.

  28. stuartl says:

    Only Law can be ratified

    From wiktionary “Ratify: To give formal consent to; make officially valid. ”

    By signing, I can ratify a contract or the roster of my son’s soccer team (I was the manager). I am not a lawyer, but I don’t think that makes either become “Law.”

  29. OFT says:

    The Samuel Adams quote about the DOI being “ratified by all the states” is curious. The DOI did not require ratification–it was simply approved by “the representatives of the United States of America, in General Congress, assembled,” which is not the same as ratification of the states. Does anyone know, did the state legislatures each actually “ratify” or in some way formally approve the DOI?

    That is exactly what happened. The Signers of the Articles appear to represent the States, as Dr. Hanley has eluded to before, thus, the Articles ratified the DOI as SA wrote:

    “This declaration of Independence was received and ratified by all the States
    in the Union, and has never been disannulled.”

  30. Michael Heath says:

    James Hanley asks, Does anyone know, did the state legislatures each actually “ratify” or in some way formally approve the DOI?

    Earlier this year I read the new standard-bearer history of the development of the DofI, Pauline Maier’s American Scripture: Making the Declaration of Independence. Dr. Maier doesn’t index the word “ratification”. I do recall the fact that both states and even some local governments created their own declarations of independence against the King, Great Britain’s parliament, or both. Some prior to the 2nd Continental Congress’s and others because of it. There was no effort to get all the individual colonies to ratify it beyond the 2nd Congress’ passage though some colonies did so unilaterally but in MA case, a moot manner.

    At the behest of the MA’s five 2nd Congressional representatives, Massachusetts convened town hall meetings to debate and then advise their General Court who extended a yes to their five representatives but after their representatives had already acted. They had full authority to do so prior to their state seeking a consensus beyond their representatives. In fact their representatives were the instigators of securing a more populist democratic form of support out of their colony because they believed it would motivate support from more reticent colonies if the people of Massachusetts supported Independence beyond its representatives to the 2nd Congress. (Maier, pg. 59 – 60)

    Rhode Island’s lower house considered doing a survey of its inhabitants and then decided against it (pg. 61).

    Here’s my book review of Maier’s book, what I think is a very good but incomplete history and analysis of the DofI: http://www.amazon.com/review/RKUFARMM30GPN/ref=cm_cr_rdp_perm

  31. James Hanley says:

    OFT:

    That is exactly what happened. The Signers of the Articles appear to represent the States, as Dr. Hanley has eluded to before, thus, the Articles ratified the DOI

    That statement is a total non-sequiter. Because the Articles signers represented the states, the Articles ratified the Declaration of Independence.

    There’s not hide nor hair of logic there.

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