Portland, Maine, January 8, 1788
When drafting any written constitution or even any law, there is a question of whether every right should be explicitly laid out in the document. Where there are express rights in a constitution—such as the right to freedom of speech—a reader (including judges) may conclude that the list of rights are exhaustive and that there are no rights but those mentioned in that constitution. A reader could also reason that those rights which are expressed in the constitution are not a complete list but only the most important rights and may, in fact, include other rights. Additionally, a constitution may have express prohibitions such as the United States Constitution at Article I, Section 9: “The privilege of the writ of Habeas Corpus shall not be suspended.” Questions of interpretation, such as these, led to debates between friends in the winter of 1787 and 1788, and a letter from Thomas B. Wait to George Thatcher illustrated those debates.
There is no question that Wait and Thatcher were intimate friends, based on Wait’s letter dated January 8, 1788, which he signed “Your friend forever.” Wait noted, “Last Saturday week I did myself the pleasure of visiting your dear wife and family—and tarried till Monday noon—it was a godly season—had you been present, it had been a Paradise.” Friendship aside, Wait had several points to make about the draft of the Constitution. Those points centered on the necessity—in Wait’s view—of the Bill of Rights. Reviewing the draft, Wait wrote, “Now, how absurd—how grosly absurd is all this, if Congress, in reality, have no powers but those particularly specified in the Constitution!” He continued: “It will not do, my friend—for God’s sake let us not deny self-evidence propositions—let us not sacrifice the truth, that we may establish a favourite hypothesis;—in the present case, the liberties and happiness of a world may also be sacrificed.”
For Wait, the Constitution—without more—was not worth adopting: “There is a certain darkness, duplicity and studied ambiguity of expression running thro’ the whole Constitution which renders a Bill of Rights peculiarly necessary.—As it now stands but very few individuals do, or ever will understand it.” Wait was not an outlier in his wish for having a Bill of Rights—and for good reason. The ten amendments to the Constitution within the Bill of Rights would be the foundation on which protections for citizens from their federal government would be built, and more than that, it would serve as a model for state governments. Those rights identified in the Bill of Rights—freedom of speech, freedom of the press, protection from cruel and unusual punishment—would be mimicked in state constitutions, and those state constitutions would add protections that applied at more local levels.
Lest anyone took issue with the Bill of Rights detailing express rights for the people, the Ninth and Tenth Amendments provided reassurance. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and the Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”