Why The Founding Fathers Were Skeptical About A Bill Of Rights

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Posted: May 17, 2018 11:24 AM
Why The Founding Fathers Were Skeptical About A Bill Of Rights

American freedom was aptly defined by John Locke when he wrote,

“A state of perfect freedom to order [each individual] their actions, and dispose of their possessions and persons, as they think fits, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man…[and] should also be equal one amongst another without subordination or subjection.”[1]

The Lockean view of liberty and freedom excludes a man from the encroachment on one’s property and person from any other man.[2]  An encroachment from one man on to another puts that person at a state of war against the other, with the right of the man being encroached upon to use any and all means of removing that threat – even the death of the encroaching party.[3]

Americans understood this view since clergy preached this position for many years throughout the 1700s and especially as England intruded upon the colonists’ liberty.  It was biblical to the American colonies.  “No obedience is due to them by the law of God,” declares Pastor Stephen Johnson during a 1765 Fast Day sermon.  He is referring to Locke, as he affirms a violation of natural rights creates a state of war against citizens.  “May we not ask,” Johnson asserts, “who is the aggressor, he that invades the rights of a free people, or they who defend only what is their own?”  He continues, “A kingdom divided against itself, cannot stand.”[4]

The Founding Fathers understood both the uniqueness and fragility of the experiment they had built, and it took them much toil, scholarship, discussion, thought, and debate to construct it.  It was not easy and nearly failed multiple times.  But at its core lies God; and by Judge Hand, there also lies liberty.  The term liberty itself means emancipation and autonomy.   This core principle of the Great Experiment is exactly what connects our individual sovereignty from the world with our individual relationship with God.  This is the essence of the Great Experiment; the essence clearly proclaimed that they are endowed by their Creator with certain unalienable Rights.

This is also the very reason during the debates over the Constitution a number of our Founding Fathers opposed the need for the Bill of Rights.  If our rights are unalienable, established by God upon creation, (which they are) then it is not only unnecessary, but hazardous to list them out further.  These dissenting Founders believed, and rightfully so, that doing so would give the impression that Fundamental Rights were given by government, not by God.  In Federalist 84, Alexander Hamilton warns,

“I go further, and affirm that bills of right, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous…[and]…would afford a colorable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do?”[5]

Hamilton also references petitions of Fundamental Rights, Divine Law, declared in 1215 in the Magna Carta and in 1688 in the Declaration of Right presented to the Prince of Orange.[6]

James Madison supported the Bill of Rights, but gave a substantial stipulation in regards to them.  “My opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration,” states Madison in a letter to Thomas Jefferson.   He continues with the stipulation that, “the rights in question are reserved by the manner in which the federal powers are granted…Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.”[7]

This is why the America is the Great Experiment – it had never been tried before; it was utterly unique.   The Great Experiment was “the most unusual society in history.”[8]  The Founders profoundly understood the magnitude of their experiment, and as James Madison wrote in the Federalist Papers:

Happily for America, happily we trust for the whole human race, they pursued a new and more noble course.  They accomplished a revolution which has no parallel in the annuals of human society.  They reared the fabrics of governments which have no model on the face of the globe.   They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate.[9]

This was the spirit of the first American Revolution, the American Revolutionary War; our separation from oppression and tyranny of history and the world.  It was the acknowledgment in the Shining City upon the Hill of our connection to our God, as the central theme of our being, and the foundation upon which the Shining City was built.   That meant a limited government.  The Founders know that only by a limited government could freedom be established and maintained; freedom of one’s mind (ideas and beliefs), body (labor), and property.  This was the core of economic freedom.  Even the slightest bit of too much government would erode, and eventually destroy this freedom, specifically economic freedom.  Lockean philosophy warns of encroachment on one’s freedom.  John Locke declares “that he who would take away my liberty, would not, when he had me in his power, take away everything else.”[10]  This Lockean declaration is the essence of the America’s limited government; it’s liberty.

[1] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book II:  Of the State of Nature, Sec. 4,” (Wheeling, IL: Harlan Davidson, Inc.), p. 3.

[2] While John Locke is sited by Thomas Jefferson for the impact Locke had directly on Jefferson and his writing of the Declaration of Independence, and also Locke’s siginifcant influence on many other of our Founding Fathers and Forefathers, centuries prior to Locke and his writings many theologians wrote and articulated the same theological philosophies.  See Brian Tierney, 2001 (originally published in 1997), The Idea of Natural Rights:   Studies in Law and Religion, Natural Law, and Church Law, 1150 – 1625, (Grand Rapids, MI:  Wm. B. Eerdmans Publishing Co.), pp. 231-233.

[3] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book III:  Of the State of War, Sec. 16-21,” (Wheeling, IL: Harlan Davidson, Inc.), pp. 11-14.

[4] Alice M. Baldwin (Joel McDermon, ed.), 2014 (originally published in 1928), The New England Pulpit and the American Revolution (originally titled, The New England Clergy and the American Revolution), (Powder Springs, GA: American Vision Press), pp. 127-128.

[5] Alexander Hamilton, May 28, 1788, Federalist Paper No. 84.   Taken from James Madison, Alexander Hamilton, and John Jay, The Federalist Papers: The Classic Original Edition, (SoHo Books), p. 249.

[6] See Alexander Hamilton, May 28, 1788, Federalist Paper No. 84, p. 249, and for a further discussion see Jenna Ellis, Esq., 2015, The Legal Basis for a Moral Constitution, (Bloomington, IN: WestBow Press), pp. 103-108.

[7] James Madison, October 17, 1788, “The Question of a Bill of Rights,” Letter to Thomas Jefferson, [http://www.constitution.org/jm/17881017_bor.htm], and for a further discussion see Jenna Ellis, Esq., 2015, The Legal Basis for a Moral Constitution, (Bloomington, IN: WestBow Press), pp. 116-119.

[8] Jacob G. Hornberger, June 2002 – May 2003, “Economic Liberty and the Constitution,” Freedom Daily, (Fairfax, VA: The Future of Freedom Foundation), Part 3, The Influence of Adam Smith, [http://www.fff.org/freedom/fd0208a.asp].

[9] James Madison, November 30, 1787, Federalist Paper No. 14.   Taken from James Madison, Alexander Hamilton, and John Jay, The Federalist Papers: The Classic Original Edition, (SoHo Books), p. 36.  Also referenced in W. Cleon Skousen, 2006 (originally published in 1981), The 5000 Year Leap: A Miracle that Changed the World, (United States of America: National Center for Constitutional Studies), p. 310.

[10] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book III:  Of the State of War, Sec. 18,” (Wheeling, IL: Harlan Davidson, Inc.), p. 12.