You are assuming that government is necessary. I think many of the founders would have preferred no government but determined it to be an evil that one must tolerate.
Hamilton was a monarchist and would have liked to have a class of rulers who ruled by right rather than at the pleasure of the people.
Rights have nothing whatever to do with democracy. Rights are intrinsic. No one can or should be able to take them from you.
This is why Jefferson felt that some should be specifically enumerated. He realised that democracy would allow the possibility of one group trying to say what the rights of another group were.
Democracy is the best we have but is still very tyrannical in the long run. It sets groups at odds with one another. People do not realise that right and left, black and white or any other divisions are merely a tactic of the elite to do whatever the hell they please.
Look, this is why I said it’s unclear whether there’s much of a practical effect to this. But at the federal level at least, there are hundreds of attorneys in staff positions on the Hill whose job includes determining if Congress even has the power to accomplish some given legislative goal.
Everytime a supreme court justice starts pontificating “Show me in the Constitution where it says this is a right” then his implication is that anything which is not such an enumerated right is subject to legislative action (aka the will of the people expressed through their elected representatives). After all, the court has no power to get a law enacted - the issue it’ll be discussing is the possible overturning of an existing law.
Lopez was only a 5-4 decision on a matter that clearly had no commercial component. The crux of that case (The Gun Free School Zones Act) was repassed with a simple post-it note saying that “We believe this affects interstate commerce” and is still law 14 years later.
To use this case to suggest that there are any real limits on federal power is silly.
The right to privacy has been recognzied. In the 30s when California tried to stop other people from moving there (from other states) TSCOTUS recognized a right to travel and live anywhere in the US by a citizen. When Wisconsin tried to say people on welfare can’t have children or they’ll lose their welfare, the courts said “No, the right to reproduce is a basic and protected right.”
The problem people fail to realize is the Constitution isn’t WHAT it says, it’s what TSCOTUS says it says. Make sense? No? What it means is the document changes to reflect the mood of the nations
For instance:
This is the text of a proposd AMENDMENT to the US Constitution.
It seem ridiculous that Congress didn’t have that right or someone THOUGHT they didn’t have that right or people would ARGUE that Congress didn’t have that right. But that amendment remains active and could be ratified. Would it be? Probably not, because Congress found other ways to enforce those rules without an amendment.
Take an issue like abortion or gay marriage. A Hamiltonian argument would be that the federal government cannot legislate on these issues because the Constitution does not explicitly give it the power to do so. An implied rights argument would be that the government cannot legislate on these issues because they are unenumerated individual rights and individuals are not subject to the will of the majority of these issues. But in betwen these two you have the will of the people argument that says that anything that is not explicitly listed as a protected individual right in the Constitution is subject to legislative control.
Now you can argue that the Hamiltonian position that the government is inherently limited is the correct one. But legislatures do not legislate on that basis and courts do not rule on that basis. So from a legal point of view, the Hamiltonian argument has about as much legal weight as the divine right of kings. The arguments now are between the implied rights crowd and the will of the people crowd - those who support the rights of the individual over the community and those who support the rights of the community over the individual.
I think that Hamilton was wrong, if not outright lying about why he didn’t want the Bill of Rights. Keep in mind that we have a 9th Amendment and it isn’t completely useless, but mostly. Without the BOR, we would have a system somewhat like the UK and the rights we are guaranteed in writing would always be subject to nibbling instead of protected by the broad strokes of the BOR.
It is the nature of lawyers and judges to interpret law, and in the US that means written law. It is impossible to get SCOTUS to agree on what the original intent was, or even if the founders intended original intent to be a doctrine (I do not believe that they did, witness the 9th Amendment).
In any event, the Hamiltonian argument was specifically overturned by the Supreme Court, way before even the Civil War: McCulloch v. Maryland - Wikipedia