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"Some Comments on 'The Bill of Rights as a Constitution'" 15 Harv. J. of Law & Pub. Pol. 99 (1992)


Let me try to explain what I mean by the title of my paper, "The Bill of Rights as a Constitution." Some years ago, Professor Berns wrote a very thoughtful essay called "The Constitution as Bill of Rights," picking up on Alexander Hamilton's analysis in The Federalist Number 84, in which Hamilton argued that the Constitution was for every important purpose itself a Bill of Rights. What Hamilton meant was that the structure of government played a very important role in protecting people from government tyranny. There are not many "thou shalt not" provisions in the Constitution; the document's main emphasis is on more self-consciously structural issues like federalism, separation of powers, bicameralism, representation, and constitutional amendment. Hamilton was arguing that through devices such as these, liberty would be protected and government held in check. Hamilton also argued in The Federalist Number 84 that the Preamble was profoundly important; that most of the important rights of the people were retainedsimply by the language of the Preamble and the philosophy it represented: "We the People of the United States ... do ordain and establish this Constitution ...." What he meant is that here we have a document emanating from a popular sovereign, and popular sovereignty (or what Professor Graglia would probably call "democracy" or "majoritarianism") is an important device for securing liberty-especially the public liberty of democratic or collective self-governance.

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