Derek Webb looks at how Thomas Jefferson may have outdebated Alexander Hamilton when it came to the Bill of Rights.
Daveed Diggs, the speed-rapping actor who played Thomas Jefferson in the original Broadway cast of Hamilton, once observed that losing two consecutive rap battles to Alexander Hamilton in every show before exuberant New York high school audiences always stung a little.
Getting bested twice a show by the “ten dollar founding father” in a flurry of arguments and insults over whether to establish a national bank and whether to aid France in its war with England hurt especially when these youthful audiences reacted as if they were actually watching a real rap battle. Hearing the oohs, ahhs, and applause as Hamilton slayed Jefferson felt just a bit like a personal defeat. Too bad for Mr. Diggs, then, that Lin-Manuel Miranda, the show’s brilliant creator, left out one battle in which Jefferson got the better of Hamilton.
Today, in marking the 225th anniversary of the ratification of the Bill of Rights, we celebrate the culmination of that battle of wits. And what stands out in particular about that battle is that unlike his two other defeats, in which Hamilton outdueled Jefferson by playing the role of the hard-headed pragmatist opposite Jefferson’s out-of-touch theoretician, in the debate over the Bill of Rights, the roles were actually reversed.
On December 20, 1787, Jefferson wrote Madison from Paris to thank him for sending him a copy of the newly proposed Constitution. He liked a number of things in it, he said, but worried chiefly about its omission of a bill of rights. Sounding every bit the philosophical “Sage of Monticello,” he fired his first shot: “A bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inferences.”
Months later in July of 1788, writing as “Publius” in Federalist 84, Hamilton shot back with what by then had become a conventional Federalist reply, explaining that a Bill of Rights was unnecessary and even potentially dangerous. And he based this argument exclusively on a theory – the theory underlying a constitutionally limited government of enumerated powers. Such a government could only wield those powers which it was delegated. A Bill of Rights was unnecessary under such a government, he reasoned, because everything that was not expressly given to it was reserved to the people. Unlike countries such as England in which the government had plenary power over its citizens and lists of rights like Magna Carta were needed to carve out certain limits on that power, “here, in strictness, the people surrender nothing; as they retain every thing, they have no need of particular reservations.” And a Bill of Rights was dangerous under such a government because it might suggest that the new federal government would have other powers not expressly delegated. Why limit the government’s ability to limit the freedom of the press, for example, when the power to regulate the press was nowhere to be found in the first place? Doing so, he said, might give “numerous handles” to “the doctrine of constructive [or implied] powers.”
In other words, just as Hamilton’s love at the end of the day “would be enough” for Elizabeth Schuyler, so also the theory of a limited government contained in the Constitution “would be enough” to ensure the protection of rights.
Hamilton’s theoretical reassurances, however, would not be enough for Jefferson. James Wilson had made the same theoretical arguments months before in Pennsylvania, but as Jefferson observed then, “To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved, might do for the audience to whom it was addressed, but is surely a gratis dictum.” In Lin-Manuel Miranda’s version of their bank battle, Hamilton tells Jefferson, “That was a real nice declaration. Welcome to the present, we’re running a real nation.” Jefferson’s response to Hamilton’s argument on the value of a Bill of Rights (mediated through letters he wrote to Madison) would have been nearly identical:
That was a real nice gratis dictum.
Welcome to the present, we’re building a real constitution.
Building a real constitution meant studying the text of the Constitution as it was actually written, not from a gauzy, 20,000 foot perspective. For starters, the actual proposed Constitution’s enumerated powers as written, like the commerce clause and necessary and proper clause, had a considerable breadth and elasticity out of which enterprising interpreters could easily draw “constructive” or implied powers. And for another, the Constitution as proposed already contained explicit protections for some rights, like the right to jury trial in criminal cases, but oddly not others, which “raises implications against others.” A bill of rights was thus needed as a “supplement” to the rights already protected in the proposed Constitution.
Building a real constitution also meant being practical and doing the feasible good one could. “The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly overweighs the evil.” In response to the concern that a Bill of Rights would be nothing more than a “parchment barrier,” Jefferson spoke up for parchment barriers, observing that sometimes just having the parchment can be useful. “Tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less.” And in response to the concern that a Bill of Rights could not effectively protect all rights, and that some key ones might be left off the master list, he again made the pragmatic argument: “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
And finally, building a real constitution meant enshrining a set of fixed and publicly available standards against which government action can be measured. Whether for the purposes of judges, federal or state officials, or ordinary citizens, “The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view it is necessary to the federal government also: as by the same text they may try the opposition of the subordinate governments.” Even here, sounding his most theoretical and libertarian, he offered a pragmatic, balancing consideration. Jefferson conceded that making publicly available a set of standards by which to judge government could cause its own problems. But on balance, he judged, it was worth it. “The inconveniences of the Declaration are that it may cramp government in it’s useful exertions. But the evil of this is short-lived, moderate, & reparable. The inconveniencies of the want of a Declaration are permanent, afflicting & irreparable: they are in constant progression from bad to worse. … The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it’s turn, but it will be at a remote period.” When weighed against the prospect of legislative tyranny in the near future, and executive tyranny in the more distant future, breaking up the smooth functioning of government was worth it.
Jefferson may not have won over Hamilton with these lines, but he did win over Madison. Madison himself had expressed doubts about the value of a Bill of Rights along the theoretical lines sketched out by Hamilton and defended their exclusion at the Virginia ratifying convention in 1788. But by the summer of 1789, Jefferson’s letters had shifted Madison’s thinking. And Madison added one more pragmatic reason to include a Bill of Rights. Speaking on the floor of the House of Representatives on June 8, 1789, he observed that the Anti-Federalists who had just lost the bruising yearlong battle over the ratification of the Constitution needed some gesture of good will to reconnect them with the new union. “We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens show under the government, calls upon us for a like return of moderation.”
By December 15, 1791, when Virginia ratified the Bill of Rights and made it an official part of the Constitution, Jefferson had finally bested Hamilton in this particular rap battle. But for Jefferson’s efforts to persuade Madison, the “father of the Bill of Rights,” of the wisdom of breaking with his co-author Hamilton and adding a “supplement” to the Constitution, Madison may not have made this shift on his own. And but for Madison’s leadership in seeing the Bill of Rights through to its proposal in Congress and ratification by the states, it seems likely the Bill of Rights may not have seen the light of day. If all this is true, it would follow that the but-for cause of our seemingly abstract charter of liberties was a pragmatic and moderate outlook.
Historians have observed that it wasn’t really until the 150th anniversary of the Bill of Rights in 1941 that these first 10 amendments were commonly referred to as “the Bill of Rights” and took on a symbolic power in their own right. Confronted by the growing threat of totalitarian governments abroad, Americans celebrated the Bill of Rights as a “charter of liberties” that helped distinguish America’s democratic form of government from dictatorship and anchored the United States in its commitment to limited government, respect for individual liberty, and the rule of law. On the 225th anniversary of the Bill of Rights, when political and legal discussion often strains between abstract, theoretical, and all-or-nothing extremes, it may be interesting to reflect anew upon how, on this occasion at least, Jefferson prevailed by playing against type and offered eminently practical and prudential arguments in his duel with Hamilton. Our beloved charter of liberties enshrined in the Bill of Rights and engraved in the marble frieze directly above the Justices of the United States Supreme Court, while grist for an unfathomably vast amount of theoretical reflection and debate, had its origins in relatively concrete, incremental, and practical considerations grounded, at least in part, on “principles of amity and moderation.”
Derek Webb, Ph.D., J.D. is an attorney in Washington, D.C. He has recently served as a law clerk in the United States Court of Appeals for the Sixth Circuit, a Supreme Court Fellow in the Office of the Counselor to the Chief Justice, and a Fellow at Stanford Law School's Constitutional Law Center. He also assists with the National Constitution Center's Interactive Constitution. The views in this article are his alone.
