Bill of Rights: Born From the Battle Over Delegated and Reserved Powers
On December 15, 1791, the Bill of Rights was ratified and became part of the Constitution. Most people think they know why. But most actually don’t.
It was birthed out of a brutal political battle between Federalists and Anti-Federalists over a question that nearly killed ratification: When the Constitution doesn’t mention a power, who gets to exercise it – the federal government or the people of the several states?
Federalists insisted a Bill of Rights was unnecessary, even dangerous. The Constitution, they argued, was already designed to limit federal power to those delegated, and nothing more. Anti-Federalists shot back with a dark reality: government always assumes it can do whatever you haven’t explicitly forbidden.
That fight got settled with a deal. And the deal’s centerpiece – the answer that saved ratification – was the Tenth Amendment. Understanding this forgotten debate reveals how the entire Constitution was designed to work.
INITIAL EFFORTS REJECTED
During the Philadelphia Convention on Sept. 12, 1787, George Mason proposed adding a declaration of rights to the Constitution, but his motion was overwhelmingly rejected. Only Massachusetts abstained from voting against it.
Just three days later, Edmund Randolph proposed a new approach: allow state conventions to submit amendments for consideration in another general convention.
“That amendments to the plan might be offered by the State Conventions, which should be submitted to and finally decided on by another general Convention.”
This motion was rejected as well. This time, unanimously. The framers didn’t even want to leave that door open.
After the Philadelphia Convention sent the proposed Constitution to the Confederation Congress, Anti-Federalists like Richard Henry Lee tried again. He wanted amendments attached before the states ever saw it. His argument: forcing an all-or-nothing choice was ridiculous.
“To insist that it should go as it is without amendments is like presenting a hungry man 50 dishes and insisting he should eat all or none.”
Despite Lee’s efforts, the plan was rejected. The Constitution was sent to the states without any amendments.
THE FEDERALIST ARGUMENT
During the ratification debates, Federalists such as James Wilson, Tench Coxe, and Alexander Hamilton made their case: listing specific rights was redundant, even dangerous. It would imply the government had powers beyond those delegated.
Wilson’s widely-read State House Yard Speech emphasized that the federal government could only exercise powers expressly delegated to it.
“Every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed Constitution”
That summed up the entire Federalist argument. If powers not delegated are automatically reserved, then why waste ink declaring what the government can’t do?
“for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence.”
Tench Coxe pointed to the precedent of the Articles of Confederation. The Union’s first constitution didn’t have a bill of rights either, and the states already protected personal rights in their own state constitutions.
“The old federal Constitution contained many of the same things, which from error or disingenuousness are urged against the new one. Neither of them have a bill of rights, nor does either notice the liberty of the press, because they are already provided for by the State Constitutions; and relating only to personal rights, they could not be mentioned in a contract among sovereign states.”
Coxe drove the point home with an example: trial by jury. There was no power expressly delegated in the Constitution that would authorize the federal government to abolish it, so such a power didn’t exist.
“There is nothing in the new constitution to prevent a trial by jury.”
In Federalist 84, Hamilton warned that listing rights could imply that any unlisted rights were within the purview of federal power, a dangerous precedent.
“I go further and affirm that bills of rights, 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. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”
To illustrate the problem, Hamilton pointed to freedom of the press. The Constitution never delegated any power over it, so why declare it off limits?
“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?”
Hamilton’s bottom line: if the federal government can only exercise delegated powers, rights are already protected. Listing them is redundant because any power not delegated doesn’t exist in the first place.
“The Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.”
ANTI-FEDERALIST REBUTTALS
However, Anti-Federalists weren’t convinced, not even close.
In the weeks following the Philadelphia Convention, George Mason’s objections were widely circulated. His first and foremost concern was “There is no Declaration of Rights.”
A week after James Wilson’s speech dismissing the need for a Bill of Rights, the Federal Farmer published his fourth essay. In it, he directly challenged the Federalist claim that it would be unnecessary under the Constitution’s system of delegated and reserved powers.
“It is said, that when the people make a constitution, and delegate powers, that all powers not delegated by them to those who govern, is reserved in the people”
But there was another interpretation entirely, Federal Farmer noted. Politicians adopt whichever view serves their goals.
“It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves. The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes.”
Federal Farmer’s central warning: governments expand their power wherever limits are unclear. Wise constitution-makers draw clear lines between powers delegated and powers reserved.
“But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favorably for increasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved.”
The Articles of Confederation provided the proof. Federal Farmer pointed to the critical difference. The Articles clearly drew this line in the sand. The new Constitution didn’t.
“And that the people, in the present case, have reserved in themselves, and in there state governments, every right and power not expressly given by the federal constitution to those who shall administer the national government.”
He was referencing Article II of the Articles, which explicitly reserved powers not delegated.
“Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
Richard Henry Lee agreed with Alexander Hamilton on principle. A bill of rights could be unnecessary – but only with explicit limits. That, he noted, was the system under the Articles, where a bill of rights was “not necessary in the Confederation because it is expressly declared that no power should be exercised, but such as is expressly given.”
Clear language in the new Constitution about delegated and reserved powers so “no constructive power can be exercised,” Lee noted, was the fundamental principle at hand. He said preventing such misconstruction of power “is the great use of a bill of rights.”
In the Virginia Ratifying Convention, Patrick Henry argued that this federalist view of delegated and reserved powers was novel – because it had always been the other way around.
“I repeat, that all nations have adopted this construction – That all rights not expressly and unequivocally reserved to the people, are impliedly and incidentally relinquished to rulers; as necessarily inseparable from the delegated powers. It is so in Great-Britain: For every possible right which is not reserved to the people by some express provision or compact, is within the King’s prerogative.”
For Patrick Henry and many other Anti-Federalists, this new kind of system – without an express declaration – dangerously left the reservation of rights and powers to implication.
“If you intend to reserve your unalienable rights, you must have the most express stipulation. For if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.”
Henry then pointed to the Revolution as the ultimate example. Americans fighting the British demanded explicit reservations because they labored under the tyranny of arbitrary power.
“How were the Congressional rights defined when the people of America united by a confederacy to defend their liberties and rights against the tyrannical attempts of Great-Britain? The States were not then contented with implied reservation. No, Mr. Chairman. It was expressly declared in our Confederation that every right was retained by the States respectively, which was not given up to the Government of the United States.”
THE TENTH
For much of the ratification process, Federalists insisted that the Constitution be approved or rejected in its entirety, vehemently rejecting any suggestions for amendments. This stance quickly changed when it became clear that Massachusetts would likely vote against ratification.
A loss there – Federalists understood – would send them reeling in states where it was expected to be a very close call at best – like New York and Virginia.
The entire Constitution was close to failure.
That was when Federalists made a deal with two powerful, but mostly silent, likely opponents – John Hancock and Samuel Adams: Support the Constitution if the ratification included a number of recommended amendments.
On Feb. 6, they did just that, and the very first recommended amendment was a precursor to the 10th Amendment.
“First. That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.”
This language was crucial in addressing Anti-Federalist fears that the Constitution would lead to unchecked federal power.
South Carolina quickly followed their lead with a similar recommended amendment.
“This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”
On June 21, New Hampshire became the ninth state to ratify, making the Constitution official. Their first recommended amendment: the same precursor to the 10th from Massachusetts.
Virginia, and then New York followed, both with precursors to the 10th prominently included in their recommended amendments.
In the end, the debate over a bill of rights – and ratification itself – boiled down to an explicit line in the sand between delegated and reserved powers.
It’s no wonder that Thomas Jefferson, who repeatedly approved of “the plan of Massachusetts,” later called the 10th Amendment “the foundation of the Constitution.”
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