What was the original understanding of a bill of rights? This is one of the questions that my next book will address. A useful source is Federalist #84, in which Hamilton defended the Constitution against the criticism that it lacked a bill of rights. Most people know this essay because of his claim that a bill of rights was dangerous because it implied the existence of powers not enumerated. But Hamilton also said a good deal about what a bill of rights was that gets overlooked.
First, Hamilton attacked Anti-Federalists in New York as hypocrites for lamenting the absence of a federal bill of rights given that the New York Constitution did not have one. In his description of that fact, Hamilton wrote that “the constitution of New York has no bill of rights prefixed to it.” The word prefix is critical, because all of the state bills of rights in 1788 came at the start of those constitutions. Madison wanted something similar in one of the amendments that he proposed in 1789, but Congress rejected a prefix in favor of a suffix. This partly explains why nobody called the first set of ratified amendments a bill of rights at the time.
Second, Hamilton dismissed the importance of state bill of rights by calling them “aphorisms . . . which would sound much better in a treatise of ethics than in a constitution of governments.” The upshot, however, is that “aphorisms” were what people in 1788 expected in a bill of rights. Once again, the first set of amendments lacked those abstract statements, which is why people did not consider it a bill of rights.
Finally, Hamilton anticipated the modern argument that the first two points should not matter. He said that the Constitution was “in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” Hamilton went on to explain that the purpose of a bill of rights was to “declare and specify the political privileges of the citizen” and “to define certain immunities and modes of proceeding, which are relative to personal and private concerns.” While he conceded that someone could say that the Constitution did not go far enough in both respects, the mode of setting forth these guarantees was “immaterial” and “rests merely on verbal and nominal distinctions.” In other words, who cares whether the bill of rights is a prefix or contains general aphorisms like “All men are born free and equal?”
The answer is that most people in 1791 did care about these formalities. So did most people in 1868, though John Bingham was a notable exception. It was only around 1900 that people started adopting Hamilton’s pragmatic view, though the reasons for that change are complex.