Why is the Bill of Rights still controversial today?

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Antifederalists argued that in a state of nature people were entirely free. In society some rights were yielded for the common good. But, there were some rights so fundamental that to give them up would be contrary to the common good. These rights, which should always be retained by the people, needed to be explicitly stated in a bill of rights that would clearly define the limits of government. A bill of rights would serve as a fire bell for the people, enabling them to immediately know when their rights were threatened.

Additionally, some Antifederalists argued that the protections of a bill of rights was especially important under the Constitution, which was an original compact with the people. State bills of rights offered no protection from oppressive acts of the federal government because the Constitution, treaties and laws made in pursuance of the Constitution were declared to be the supreme law of the land. Antifederalists argued that a bill of rights was necessary because, the supremacy clause in combination with the necessary and proper and general welfare clauses would allow implied powers that could endanger rights.

Federalists rejected the proposition that a bill of rights was needed. They made a clear distinction between the state constitutions and the U.S. Constitution. Using the language of social compact, Federalists asserted that when the people formed their state constitutions, they delegated to the state all rights and powers which were not explicitly reserved to the people. The state governments had broad authority to regulate even personal and private matters. But in the U.S. Constitution, the people or the states retained all rights and powers that were not positively granted to the federal government. In short, everything not given was reserved. The U.S. government only had strictly delegated powers, limited to the general interests of the nation. Consequently, a bill of rights was not necessary and was perhaps a dangerous proposition. It was unnecessary because the new federal government could in no way endanger the freedoms of the press or religion since it was not granted any authority to regulate either. It was dangerous because any listing of rights could potentially be interpreted as exhaustive. Rights omitted could be considered as not retained. Finally, Federalists believed that bills of rights in history had been nothing more than paper protections, useless when they were most needed. In times of crisis they had been and would continue to be overridden. The people’s rights are best secured not by bills of rights, but by auxiliary precautions: the division and separation of powers, bicameralism, and a representative form of government in which officeholders were responsible to the people, derive their power from the people, and would themselves suffer from the loss of basic rights.

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