The Architect’s Warning: Why the Federalists Feared a Bill of Rights

For years, as a teacher and scholar of constitutional law, I found myself stuck on a particularly stubborn paradox. Every time I taught the ratification of the Constitution, I would hit the same wall: explaining why the Federalists—the brilliant architects of American government like Alexander Hamilton and James Madison—initially opposed a Bill of Rights. The question from my students was always the same, and it was a good one: “How could the architects of liberty oppose a list of liberties?”

The standard answers always felt thin, unsatisfying. “They thought it was unnecessary,” I’d say, or, “They believed the structure of the government was enough.” These explanations, while technically correct, made these intellectual giants seem inconsistent, even shortsighted.¹ It felt like describing a master chef who forbids salt and pepper. It didn’t capture the intellectual depth or the genuine, palpable

fear that animated the Federalist position. I knew there had to be a deeper logic, a framework I was missing that could make sense of this profound contradiction. The truth, I would discover, was not just that the Federalists had a different opinion; it was that they were working from an entirely different blueprint for freedom itself.

The Epiphany: A Fortress Blueprint vs. a List of Rules

The breakthrough for me came not from a legal text, but from an architectural analogy. I realized the Federalists and the Anti-Federalists weren’t just arguing about adding a new feature to a house. They were holding up two completely different sets of blueprints, born from two clashing philosophies on how to secure freedom.

The Anti-Federalist blueprint was what I call a “List of Rules.” They saw government as a collection of powerful guards who, if left unchecked, would inevitably become oppressors. Their solution, rooted in centuries of Anglo-American history fighting monarchs, was to hand the guards a clear, written list of things they were forbidden to do—a Bill of Rights.² For them, liberty was protected by explicit prohibitions. The text of the rules was the shield.

The Federalist blueprint, by contrast, was a “Fortress Design.” As the master architects of the new government, they believed a list of rules was a fragile, secondary defense. True, lasting security came from the design of the fortress itself. They were convinced they had engineered a government so intricately structured with checks, balances, divided powers, and competing interests that it was inherently incapable of sustained tyranny.⁴ For them, the structure was the primary guarantee of liberty, not a list of rules that a determined majority could simply ignore.²

This paradigm shift—from a simple disagreement to a clash of constitutional philosophies—was the key. The debate was not about whether rights should be protected, but how. The Anti-Federalists placed their faith in the written word, in “parchment”.⁷ The Federalists placed their faith in institutional design, in “structure”.⁴ Understanding this distinction reveals that their opposition to a Bill of Rights was not a careless omission but a principled, calculated defense of their revolutionary design.

The Federalist Foundation: The Doctrine of Enumerated Powers (The “Unnecessary” Argument)

The most straightforward argument from the Federalist blueprint was that a Bill of Rights was simply superfluous. The foundation of their entire constitutional fortress rested on the doctrine of enumerated powers: the new federal government was not a government of general authority, but one of specific, limited, and explicitly listed powers.⁶

The Cornerstone of the Fortress: “Everything Not Given is Reserved”

The influential Pennsylvania lawyer and framer James Wilson was the first to publicly articulate this core principle in his famous “State House Speech” in October 1787. He drew a sharp, clear line between the power of the state governments and the new federal government. State constitutions, he argued, operated on the principle that “everything which is not reserved, is given.” Because state governments possessed broad, inherent powers, it was essential for their constitutions to include a bill of rights to explicitly reserve certain liberties to the people.

The federal Constitution, however, was the inverse. It operated on the principle that “everything which is not given, is reserved”.³ The national government could only exercise the powers specifically delegated to it in the text, such as those listed in Article I, Section 8—coining money, raising an army, establishing post offices.⁹ Since the power to, for example, regulate the press or establish a national religion was nowhere to be found in this list, the government simply had no authority to act in those areas. Therefore, Wilson concluded, a bill of rights was not just unneeded, but “superfluous and absurd”.³

Hamilton’s Logical Question: “Why Forbid What You Cannot Do?”

Alexander Hamilton sharpened this point to a razor’s edge in his masterful Federalist No. 84. He posed a devastatingly simple rhetorical question that cut to the heart of the Federalist logic: “For why declare that things shall not be done which there is no power to do?”.¹⁰ To forbid the government from doing something, he argued, presupposed that it had the power to do it in the first place.

He used the liberty of the press as his prime example. Why, he asked, should the Constitution declare that the liberty of the press shall not be restrained when no power to impose such restrictions was granted anywhere in the document?.¹² To do so would be illogical. It would be like putting a sign on a lawn that says “No Elephants” when there are no elephants for a thousand miles. The prohibition itself creates a strange and unnecessary implication.

The Constitution is a Bill of Rights

Taking this logic to its ultimate conclusion, Hamilton and Wilson argued that the Constitution, in its entirety, was a bill of rights.¹¹ Its very structure—the careful enumeration of powers, the separation of branches, the system of checks and balances—was the people’s ultimate guarantee of liberty. It was a document that limited government by design, not by after-the-fact prohibitions.

Furthermore, Hamilton pointed out that the body of the Constitution already contained numerous protections for individual rights, such as the prohibition of bills of attainder and ex post facto laws, the protection of the writ of habeas corpus, and the guarantee of trial by jury in criminal cases.¹² The inclusion of these specific protections within the main text demonstrated that the framers were not blind to the issue of rights; rather, they had woven them into the very fabric of the government’s structure.

The Heart of the Danger: Implication, Interpretation, and the Inversion of Power (The “Dangerous” Argument)

The Federalists’ second major argument went a crucial step further. A Bill of Rights, they warned, was not just unnecessary; it was actively dangerous. This fear was not based on politics or philosophy alone, but on a deep-seated understanding of a core principle of legal interpretation.

The Peril of the Unwritten List: Expressio Unius Est Exclusio Alterius

At the heart of the Federalists’ fear was a Latin legal maxim familiar to the many lawyers among them: expressio unius est exclusio alterius—the expression of one thing implies the exclusion of others.¹⁶ In simple terms, if you make a list of included items, you create the dangerous implication that anything

not on the list is intentionally excluded.¹⁸ If a parent tells a child, “You can have cookies and ice cream,” it implies they cannot have cake.

Hamilton, in Federalist No. 84, applied this principle to the Constitution with chilling clarity. He argued that listing specific rights—freedom of speech, of the press, of religion—would be disastrous. It would imply that any right not on that list was not protected and had therefore been surrendered to the government.⁶ The natural rights of the people were vast and innumerable; to attempt to list them would be to inevitably limit them. Any such list would, by its very nature, be incomplete, and would thereby endanger all the fundamental rights that were omitted.²

A “Colorable Pretext” for Tyranny

This interpretive trap, Hamilton warned, would provide a “colorable pretext” for the federal government to claim powers it was never intended to have.¹⁰ The entire logic of the constitutional structure would be inverted.

The original design was clear: “The government can only do what is explicitly listed in Article I.” But with a Bill of Rights, ambitious politicians could flip the script to argue: “The government can do anything it wants, except for the few things forbidden in these amendments.” This would fundamentally transform the government from one of limited, enumerated powers into one of general, unlimited power with only a few specified restrictions.¹⁰ It would, in a single stroke, destroy the core principle of the Federalist fortress and create the very centralized, powerful government they had fought a revolution to escape. As Madison warned, the government would cease to be “a limited one, possessing enumerated powers,” and become “an indefinite one, subject to particular exceptions”.¹⁰

It was this fear of providing “handles… to the doctrine of constructive powers” that most terrified the Constitution’s architects.¹⁵ And it was this exact danger that James Madison, once he was politically forced to draft the amendments, sought to neutralize by including the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This clause is a direct rebuttal to the

expressio unius danger, a built-in safety valve designed to defuse the interpretive time bomb the Federalists believed a Bill of Rights represented.¹

Philosophical Approach	Federalist View (The “Architects”)	Anti-Federalist View (The “Rule-Makers”)
Primary Source of Liberty	The Constitution’s structure: separation of powers, checks and balances, federalism, and the large republic.2	An explicit, written declaration of rights that the people can hold the government accountable to.3
Nature of Federal Power	Strictly limited to enumerated powers. Everything not explicitly given is reserved. Silence equals prohibition.8	Vague and potentially unlimited due to the “Necessary and Proper” and “Supremacy” clauses. Silence equals opportunity for expansion.2
View of a Bill of Rights	Unnecessary: The government has no power to violate rights in the first place. Dangerous: It implies powers not granted and leaves unlisted rights vulnerable (expressio unius).6	Essential: A necessary “guidepost” or “text” to prevent the federal government from abusing its power and oppressing the people.2
Key Metaphor	A self-regulating “machine” or a well-designed “fortress” that inherently protects its inhabitants through its architecture.4	A “parchment barrier” or a “contract” that explicitly lists the rights retained by the people.7

The True Guardian: A “Machine That Would Go of Itself” (The “Ineffective” Argument)

While Hamilton focused on the dangers of legal interpretation, James Madison added a third, deeply pragmatic objection: a Bill of Rights would ultimately prove ineffective. He was skeptical that mere words on paper could ever restrain the raw forces of political power.

Madison’s Skepticism of “Parchment Barriers”

In his now-famous correspondence with Thomas Jefferson, who was in Paris and advocating for a bill of rights, Madison dismissed such declarations as mere “parchment barriers”.²² He argued that historical experience proved these paper guarantees were useless precisely when they were needed most: in the face of an “overbearing majority”.²²

This was not an abstract theory for Madison; it was a painful lesson learned from observing his own state of Virginia. He wrote that he had “seen the bill of rights violated in every instance where it has been opposed to a popular current”.²² Despite Virginia’s explicit protection for freedom of conscience, he noted, a law establishing a state religion would have easily passed if the legislature had sensed popular support for it.²² His conclusion was stark: a list of rights is no match for a passionate political majority.

The Structural Alternative: Ambition Counteracting Ambition

If parchment could not protect liberty, what could? For Madison, the answer lay in the intricate machinery of the Constitution itself. The true guardian of rights was the structure he had helped design. In Federalist No. 51, he famously argued that the only realistic way to control government is to give each branch the “necessary constitutional means and personal motives to resist encroachments of the others.” The system was designed to harness human ambition and make it counteract itself.⁴

Further, the “compound republic” of America provided a “double security” for the rights of the people. Power was first divided between the federal and state governments, and then the power allotted to each was subdivided among distinct branches. “The different governments,” he wrote, “will control each other, at the same time that each will be controlled by itself”.⁴ This, combined with the “multiplicity of interests” in a large republic that he described in

Federalist No. 10, would make it nearly impossible for any single faction to dominate and oppress a minority.³ This was the real security for freedom—a dynamic system of conflict and competition, not a static list of platitudes.

The Real Threat: Majority Faction, Not Government Tyranny

Madison’s most profound point was that in a republic, the greatest danger to liberty comes not from government officials acting against the will of the people, but from the government acting as the “mere instrument of the major number of the Constituents”.²² A Bill of Rights is designed to stop a tyrannical king. But what stops the people themselves? In a democracy, Madison realized, the most dangerous oppressor is often the majority. Against this force, he believed, a parchment barrier was worthless. Only a constitutional structure designed to slow down, filter, and check popular passions could truly preserve the rights of the minority.

The Great Compromise: Political Necessity and the Birth of the Bill of Rights

Ultimately, the Federalists’ sophisticated arguments about structure and interpretation were overwhelmed by the roar of political opposition. The Anti-Federalists, though they lost the battle over ratification, effectively weaponized the absence of a bill of rights, turning it into their most potent and popular rallying cry.²⁴

The Roar of the Anti-Federalists

Across the states, powerful voices like George Mason of Virginia, who had refused to sign the Constitution at the Philadelphia convention precisely because it lacked a bill of rights, and Patrick Henry, who thundered against the new government’s potential for tyranny, galvanized public opinion.²⁵ They argued that they had not fought a war against the consolidation of power in a distant central government only to create a new one without the traditional safeguards of liberty.²⁵ The pressure was immense. The ratification process became a series of hard-fought battles, with crucial states like Massachusetts, New York, and Virginia only narrowly agreeing to join the union on the explicit promise that a bill of rights would be added by the first Congress.¹⁹

Madison’s Pragmatic Reversal

Faced with this political reality, James Madison executed one of the most significant pragmatic reversals in American history. He had not suddenly abandoned his deep-seated doubts about “parchment barriers” or the dangers of enumeration.¹ Rather, his decision to champion a Bill of Rights in the First Congress was a strategic masterstroke driven by several key factors.

First, he felt honor-bound to fulfill the promise the Federalists had made during the ratification debates.¹ Second, he believed that adding amendments would calm the anxieties of the opposition, foster national unity, and persuade the holdout states of North Carolina and Rhode Island to finally join the Union.²⁹

Most critically, however, Madison acted to preempt a far greater danger: a second constitutional convention. He feared that if he did not seize control of the amendment process, the Anti-Federalists would succeed in their calls for a new convention that could unravel the entire federal structure he had so painstakingly built.²⁷ By proposing a Bill of Rights himself, he could strategically guide the process, ensuring the amendments focused on individual liberties rather than on fatally weakening the powers of the new national government.²⁷ It was a brilliant political maneuver to save the fortress by adding a decorative fence.

Conclusion: A Legacy of Enduring Tension

The story of the Federalist opposition to the Bill of Rights is the story of a profound philosophical vision colliding with political reality. Their fears, articulated with such precision by Hamilton and Madison, were not the ramblings of men hostile to liberty. They were the prophetic warnings of the system’s own architects, who worried that a list of rights, however well-intentioned, could warp the very structure they believed was liberty’s true guardian.

Hamilton’s fear that a Bill of Rights would provide a “colorable pretext” for the expansion of government power and Madison’s deep skepticism about the efficacy of “parchment barriers” against an impassioned majority have proven remarkably prescient.¹² Their concerns anticipated the central interpretive battles that have defined American constitutional history.

The fundamental tension between the Federalist “structural” view of liberty and the Anti-Federalist “declaratory” view was never truly resolved. Instead, it was baked into the nation’s DNA, creating a permanent, generative dialogue. Every modern debate over the scope of federal power, the authority of the judiciary, and the meaning of our most cherished freedoms is a continuation of the argument that began in 1787. The fortress architects and the rule-makers are still debating, and in that enduring tension lies the troubled, dynamic genius of American constitutionalism.

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