The Constitution was ratified in 1787: the Bill of Rights was added two years later. Several states conditioned their ratification of the Constitution on the inclusion of a bill of rights. Alexander Hamilton thought a bill of rights would be unnecessary and dangerous. In the Federalist No. 84, he wrote:
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kinds and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince."
But our American Constitution was different. It recognized that our rights did not flow from the King. We created the government. We did not need a contract between us and our king. Hamilton continued: "[Under our Constitution,] the people surrender nothing, and as they retain everything, they have no need of particular reservations."
Alexander Hamilton cited the preamble to the Constitution: "We the people of the United States [ ] do ordain and establish this Constitution" as proof that we did not need a bill of rights. Since we created a government of limited powers, we did not need a contract protecting our rights. The American Constitution was "a better recognition of popular rights than volumes of those aphorisms which make the principle figure in several of our state bill of rights, and which would sound much better in a treatise of ethics than in a constitution of government."
Moreover, Hamilton feared "declar[ing] 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?"
Can anyone today argue that Congress would lack power under the Commerce Clause to regulate the press? What did we learn about the Commerce Clause that Alexander Hamilton missed?