In The Federalist No. 23, Alexander Hamilton described a government with awesome war-making powers. The powers of “the common defense,” wrote Hamilton, “ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” Hamilton’s argument is at once perfectly rational and utterly terrifying. A government must be able to defend itself and its citizens. At the same time, if it can do so by any means necessary, it may end up sacrificing the freedom that it has been established to protect.
When Hamilton wrote The Federalist No. 23, he did not envision a constitution that contained a bill of rights. Indeed, most Federalists believed that a declaration of rights was unnecessary, but they pledged to adopt one in order to secure ratification of the Constitution. The Bill of Rights guarantees certain fundamental liberties of the people, including free speech and press, peaceable assembly, and several important protections for accused criminals.
Despite these guarantees, when America goes to war—or appears to be on the verge of war—the war-making powers of the government regularly trump the Bill of Rights. One need only recall the Sedition Act of 1798, Thomas Jefferson’s embargo, Andrew Jackson at New Orleans, the Civil War (in both the Union and the Confederacy), the two World Wars, or the McCarthy Era. Presidents, Congresses, and the states have often limited the rights of some citizens—even if it meant “violating” the law—because they deemed such actions necessary to protect the nation. As Lincoln famously argued on July 4, 1861, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” In other words, the government must prioritize national survival in wartime because constitutional liberty would be worthless if there was no national government left to uphold the Constitution.
Strangely enough, this tension between national security and individual liberty is embedded in our fundamental law. In a practical sense, the Bill of Rights is a “constitutional shackle” that has been placed upon the war-making power of the government. As commander-in-chief, Lincoln understood this point intuitively. Secessionists, he argued, had determined that “in their own unrestricted effort to destroy Union, constitution, and law, all together, the government would, in great degree, be restrained by the same constitution and law, from arresting their progress.” Lincoln specifically noted that northern Democrats opposed his war policies “under cover of ‘Liberty of speech’ ‘Liberty of the press’ and ‘Habeas corpus.’” Thus, Lincoln perceived the Bill of Rights as a constitutional shackle that impeded his ability to wage the war effectively.
Here is a list of questions for your students:
- James Madison argues in Federalist No. 51 that “ambition must be made to counteract ambition.” How does this article illuminate Madison's argument?
- What do you think is more important, national security or individual freedom? How should schools strike this balance?
- To further elaborate on their answers to the question above, have students explore this easy-to-use website highlighting the Federalist-Antifederalist debates.
Few Americans today will question the wisdom of the Anti-Federalists for insisting on a bill of rights. Nevertheless, the inclusion of these guarantees in our founding document has caused something of a paradox in American society and law. The first ten amendments to the Constitution protect our individual liberty at the same time that they “shackle” our leaders’ ability to protect us and our rights as a collective. For more than two centuries Americans have sought to resolve this contradiction by attempting to strike a balance between liberty and security. In truth, a satisfactory balance will always remain elusive. So long as the nation faces emergencies, the Hamiltonian-Lincolnian interpretation of the Constitution will almost inevitably prevail. But even as it does, the Bill of Rights remains an ever-present reminder of why the nation is worth preserving.Jonathan W. White is an assistant professor of American Studies at Christopher Newport University and a fellow at CNU's Center for American Studies. His new book, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman, was just published by LSU Press.