THE FEDERALIST PAPERS

17 Jan 2004

By Dick Leverette

What has come to be known as the Federalist Papers was a series of 85 essays in New York newspapers appearing between October, 1787, and the spring of the following year. They were published as arguments in favor of the ratification of the new US Constitution then being submitted to the states for acceptance.

To appreciate the timing and gravity of these works, we need to take a look at the political and social climate of the 13 states at the time. These several states, operating as a confederacy of more or less independent states, against huge odds and to the surprise of most other nations and a great many of its own citizens, had just recently in 1783 managed to tear itself away from its mother country, the preeminent world power of the time. Representatives from these states had just finished hammering out a constitution that, if ratified by the citizens of these states, would replace the Articles of Confederation -- the then current framework of government that had little central authority -- with a strong central government with the authority and power to forge a unified nation. And a unified nation in 1787 was about the last thing these 13 maverick geopolitical entities were. There were all sorts of squabbles already going on, from boundary disputes to trade restrictions to tariffs. And the central government was not only ineffectual, but bankrupt. The citizenry of these states had fresh in their memory the bitter taste of federal oppression in the form of British authority, and whether it was as oppressive as touted by the firebrands of the Revolution is irrelevant -- many, many people were highly suspicious of federalism in general, and didn‘t mind saying so. Not only was the citizenry in general predisposed to reject federalism, but the existing power brokers of each state, from the governor all the way down to local magistrates of each village and town, saw nothing but a loss with the instituting of a central government, if nothing more than their prestige-- and most had far more to lose than that: power and wealth, for example. And how about this taxation stuff? Didn’t we just fight a war about all that? Which is to say that the ratification of the proposed constitution was less an event flowing naturally from the victory of the Revolution and thence from the best principles the men who led that revolution could devise, than it was a crap shoot. Formidable opposition in the form of inflammatory oratory was abroad in the land, and newspapers daily printed essays exhorting citizens to cast their vote against the constitution. According to its opponents the document was flawed from the get-go; depending upon whom you asked, it would establish not a republic, but either a monarchy or a plutocracy of wealthy elites. In fact, virtually every article of the proposed constitution was attacked by one faction or another, and what we would today call misinformation and spin just might have originated during these times. The framers of the constitution had started out with the realization that a nation held together by a loose confederation of “friendly cooperation” between different political districts was not a nation, but a future battleground, as rivalries of one sort or another would but grow between each state. Neither was it a nation that could hope to resist -2- concentrated efforts by European powers of conquest: South Carolina, say, might not only see no reason to come to the aid of Massachusetts were it to be attacked, but might in fact welcome it, if it did not do the thing itself. Such concerns were quite valid. And these were just for openers. National defense, public debt, uniformity of laws, common currency, stability of government, maintenance of trade and commerce between the several states, a unified stance in dealing with foreign powers, the ability to forge alliances through treaties, the maintenance of domestic order, the authority to rein in uncooperative state

governments, the power to tax to support the government that would provide these things -- all these and more could not be undertaken without a strong, central government. But opposition was both strong and loud. So it was in an environment of vociferous and effective opposition against what wiser heads knew as necessity that Alexander Hamilton undertook, as he stated in Federalist Paper No. 1, “...to satisfy all objections (to the constitution).” Applying all the powers of his towering intellect, he set about to do just that, and in cahoots first with John Jay and then James Madison, produced what Thomas Jefferson in 1788 called, “The best commentary on principles of government ever written,” and almost 40 years later recommended as a guide to what the constitution actually says. In the years since then, scholars and political scientists have cited these essays as the premier American political work, the essence of American political thought, the distillation of American political theory, and unexcelled justification of the republican government form. (Ironically, even those who wrote so effectively in favor of the constitution had serious reservations about it. James Madison is on record as confiding to Thomas Jefferson, “... that the plan, should it be adopted, will neither effectually answer its national object nor prevent the local mischiefs which everywhere excite disgusts against the state governments.” And Alexander Hamilton himself admitted, “No man’s ideas were more remote from the plan than (mine) were known to be.” However, although these men and other authors of the constitution knew it to be a “bundle of compromises,” their attitude might be best thought of as get the damn thing ratified; we’ll fix it later!)* *The last paper admitted as much, stating, “I never expect to see a perfect work from imperfect man.” *** The series of essays were first published anonymously in New York newspapers and shortly afterward reprinted in newspapers throughout the states. (In March and May of 1788 Hamilton published the entire series in two volumes, entitled The Federalist.) Hamilton, countering strong anti-federalist positions written by “Cato” and “Brutus” -- possibly New York governor George Clinton -- chose the pen name “Publius.” His choice of this name was to suggest parallels with Publius Valerius Publicola, who established the Roman republic, which endured and expanded for hundreds of years. (Most probably these references to history and historical figures would be lost on most -3- of us today -- it certainly was on me -- but apparently educated folks of that time took their studies more seriously and saw at once historical parallels between the establishment of the earlier republic and what was being attempted in 1787.) To keep up the pace, Hamilton recruited John Jay. Although not as familiar today as others in the pantheon of founding fathers, aside from being a prominent lawyer, Jay had drafted the original New York constitution, and with Benjamin Franklin and John Adams had negotiated the treaty of 1783 with Britain, which closed the Revolutionary War. Unfortunately, after collaborating with Hamilton for a short time, he fell ill, and was unable to continue. At some point, exactly when is uncertain, James Madison got involved, and contributed heavily to the effort. It is not known to what extent these men collaborated, read beforehand or edited one another’s works; nor in many cases who wrote what. In fact, a great deal of study, examination and speculation has taken place

over the years, including phraseology usage, sentence structure, word count, and so on -- even computer programs to analyze use of specific words -- in an attempt to attribute specific papers to specific authors. But the results are inconclusive: no one can claim uncontested certainty on the subject. No one knows for sure. It is significant, however, that when Hamilton and Madison later became bitter enemies, it did not arise from their authorship of these papers. In the words of Kesler, “So similar were the two men’s arguments and writing style in The Federalist that their efforts to disguise themselves as Publius must be judged an extraordinary success.” What we do know is, in general, Hamilton tackled the weaknesses of the Articles of Confederation, particularly regarding domestic stability, war powers, taxation and commercial regulation. He also examined the executive and judicial branches of the government, and certain aspects of the Senate. Madison seems to have expounded on theory of republican government, the aims and goals of the Constitutional Convention, federalism, the general theory of separation of powers, the House of Representatives and other aspects of the Senate. What is also known is that his collaboration coincided with his presence in New York at the time, and that he was called back to Virginia and contributed nothing after Federalist 63. A key point demonstrated in this series of essays and stated succinctly in Federalist 1 is a republican government depends upon “Societies of men (and particularly) the people of this country (establishing) good government from reflection and choice.” Kesler points out that throughout “The emphasis is on concentrating and projecting society’s will, not on refining or shaping it.” And this is highly significant, for it hammers home the fact that the men who drafted the constitution were essentially altruists -- at least in a practical sense. They were inventing a government that first provided for the safety of its citizens, the protection of their property, the sacredness of their liberty to do whatever they chose to do while at the same time being subservient to their will. In other words, government at the consent of the governed. This was not a new idea, but its application was radical. Now, if a majority of these citizens could just be talked into going along with the thing, everything would be hunky dory. More or less, anyhow. In Federalist 1 Publius announced the outline of the coming papers, which was -4- followed fairly closely: “The utility of the UNION to your political prosperity -- The insufficiency of the present Confederation to preserve that Union -- The necessity of a government at least equally energetic with the one proposed to the attainment of this object -- The conformity of the proposed Constitution to the true principles of republican government -- Its analogy to your own State constitution -- and lastly, The additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.” In general, the first 26 essays are concerned with the necessity of forming a strong, federated union, as opposed to an association of confederacies. They pick apart the Articles of Confederation, and show the weaknesses of the government for which this document provides, and the dangers all citizens face under it. Federalist 27 through 36 expand on these points and add miscellaneous items Federalist 37 through 85 show the merits of the proposed constitution. They analyze how the government it would set up would provide for not just the safety and protection of all citizens and the nation itself, but also for the maximum freedom and liberty of its citizens, as well as the concentration of their power to influence the course of the government itself. Contained in these essays are the logics behind the two different representations manifested in the bicameral Congress and in the division of powers into the Executive, Legislative and Judicial triad. They explain the flexibility inherent in the amendment process and how it can be used to fine tune the whole thing. This admits to the imperfection of the document, and anticipates that situations will but arise that necessitate

changes. So then, what did these guys have to say? Since there are 85 papers, each quite lengthy and forming a thick paperback book, there is enough material for at least that many discussions. In view of this, and since everybody would get up now and leave if they thought I was going to go through all 85 of them, I decided to select a couple of subjects and extract quotes from The Federalist addressing these issues, editing where possible for the sake of brevity.* I ignored the case for federalism over confederacy and concentrated on the Constitution. Here goes: The boldface headings did not appear in the original papers, but were inserted later for reference. (FEDERALIST 78) Judiciary -- Power to Void Unconstitutional laws The courts will have the right to pronounce legislative acts void because they are contrary to the Constitution. Because of this, some people have imagined that this implies that the judiciary power will be superior to the legislative power. . . . a brief discussion (of this question) cannot be unacceptable. Congress: Actions Limited Every act of a delegated authority that is contrary to the meaning of its commission is void. . . . no legislative act contrary to the Constitution can be valid. -5- Denying this would affirm that the deputy is greater than his principal, the servant is above his masters, the representatives of the people are superior to the people themselves, that man acting by virtue of powers may do, not only what the powers do not authorize, but what they forbid. Authority: Constitution vs. Legislature It may be argued that the legislative body is the constitutional judge of is own powers and that the other branches must accept the interpretation it puts on the powers. But this is not a logical conclusion from any provision in the Constitution. It cannot be supposed that the Constitution intends to enable the people’s representatives to substitute their will for that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature. Among other things, the courts keep the legislature within the limits of their authority. Interpretation of the laws is the proper and specific province of the courts. A constitution is, in fact and must be regarded by the judges as, a fundamental law. . . . in other words, the Constitution should be preferred over the statute, the intention of the people to the intention of their agents. People’s Constitution Superior to Both This conclusion, in no way, means the judicial is superior to the legislative power. It only supposes that the power of the people is superior to both. Where the will of the legislature, declared in its statutes, is in opposition to that of the people, as declared in the Constitution, judges should be governed by the latter. . . . They should regulate their decision by the fundamental laws. . . . Decide Validity of Contradictory Laws . . . Sometimes two existing statutes clash in whole or in part with each other, and neither contains any repealing clause or expression. When this happens, the courts have the authority and duty to liquidate and fix their meaning and operation. . . . The prevailing rule in the courts to determine their relative validity is that the more recent shall be preferred to the first. But this rule is not derived from any positive law. It is only a rule of construction from the nature and reason of the thing. . . . (interpreters of the law) thought it reasonable that between conflicting acts of an equal authority, the last indication of its will should have preference. Constitution Superior to Laws But when a superior, original authority and a subordinate, derivative authority produce conflicting acts, by their very

nature, reason indicates that the converse of that rule as proper to be followed. The act of a superior authority should be preferred to the subsequent act of an inferior and subordinate authority. -6- Accordingly, whenever a particular statute contravenes the Constitution, judicial tribunals will have the duty to adhere to the latter and disregard the former. . . . (Following a discourse on judicial restraint on bad legislation, Federalist 78 has this in part to say about lifetime appointment of judges.) Owe Allegiance Only to Constitution Inflexible and uniform adherence to the rights of the Constitution and of individuals, which is indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Appointments made for a certain period, however regulated or by whomsoever made, would be fatal to their necessary independence in some way or another. If the power of making them was committed either to the Executive of legislature, there would be danger of an improper acquiesce to the branch making the appointment. If it were a joint appointment of both, there would be an unwillingness to hazard the displeasure of either. If the people appointed judges, or if they were appointed by persons chosen by the people for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. . . . (FEDERALIST 51) Separation of Powers: Structural Checks and Balances . . . Therefore the government must be structured, designed, so that the three constitutional branches and their relationships will have the ability to keep each other in their proper places. . . . Perfect Separation: People Appoint All Officials . . . it is clear that each branch should have a will of its own. Consequently, government should be designed so members of each branch have a little input as possible in the appointment of members of the other. If this principle . . . was rigorously adhered to, all appointments to the executive, legislative and judiciary branches would have to be made from the same fountain of authority, the people, through channels having no communication with one another. Perhaps (this) would be less difficult in practice than it appears in contemplation. However, difficulties and additional expense would accompany its execution. Therefore, some deviations from this principle must be allowed. -7- Judiciary: Specific Qualifications In the construction of the judiciary in particular, requiring that the people pick all members might not be very successful. First, specific qualifications in the members are essential. . . . Second, since judges hold permanent tenure, this would soon destroy all sense of dependence on the authority appointing them. Executive, Judiciary Not Dependent on Legislature for Pay Clearly, the members of each branch should be as little dependent as possible on a different branch for their compensation. Were the executive or the judicial not independent of the legislature on this point, their independence in every other area would be insignificant. Authority, Motives to Resist Usurpations The best security against a gradual accumulation of powers in one branch is giving to the administrators of each branch the necessary constitutional tools and personal motives to resist encroachments. As in all cases, the provision for defense must be made proportional to the danger of attack.

Ambition must be made to counteract ambition. The personal interests of the man must be connected with the constitutional rights of the place. Government Reflects Human Nature; Angels Don’t Need Government It may be a reflection on human nature that such devices are necessary to control the abuses of government. But what is government itself but the greatest of all reflections of human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, force it to control itself. Divide Legislative; Fortify Executive It is not possible to give each branch an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this is to divide the legislature into different houses and make them, by -8- different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will allow. It may be necessary to guard against dangerous encroachments with even further precautions. . . . At first view, an absolute negative on the legislature (veto power) appears to be the natural defense with which the executive branch should be armed. But by itself might not be completely safe or sufficient. . . . on extraordinary occasions it might be perfidiously abused. . . . State Governments: Additional Check on Federal Government . . . the power surrendered by the people is first divided between two distinct governments, state and federal. Then the portion allotted to each is subdivided among distinct and separate branches. Hence, the rights of the people are doubly protected. The different governments will control each other, at the same time that each will be controlled by itself. Oppression from Society . . . society must not only be protected against the oppression of its rulers, but one part of the society must be guarded against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority is united by a common interest, the rights of the minority will be insecure. . . . . . . All authority will be derived from and dependent on the society. The society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as the for religious rights . . . . Justice is the final goal of government. It is the goal of civil society. It has always and always will be pursued until it is obtained or until liberty is lost in the pursuit. . . . The extended republic of the United States will embrace a great variety of interests, parties and sects. A coalition of a majority of the whole society could seldom happen on any other principles than justice and the general good. While there is less danger to a minority from the will of a majority party, there must be less pretext also to provide for the security of the minority by introducing into the government a will not dependent on the majority . . . Despite some opinions to the contrary, it is no less certain than it is important that the larger the society, . . . the more capable it will be of self-government. -9- (FEDERALIST 30) Taxation: Revenue Source to Support National Government (It is agreed that) the federal government should have the power to support the national army. This includes expenses of recruiting troops, building and equipping fleets, and all expenses connected with military operations. However, the Union must be empowered to raise revenue for other reasons as well. It must support national civil employees, pay current and future national debts, and make appropriate disbursements from the national treasury. Therefore, the government must have some sort of taxation. Need for Adequate Revenue . . . One of two evils will ensue from a deficiency of money -- either the people will be continually plundered, as a substitute for a legitimate method for supplying public wants, or the government will sink into a fatal atrophy and, in a short time, perish. Inability to Tax => Pillaging or Decay Although the sovereign of the Ottoman Empire is absolute master of the lives and fortunes of his subjects, he has no right to impose a new tax. As a consequence, the bashaws (province governors) pillage the people without mercy, squeezing from them the money the emperor needs to satisfy his own needs and those of the state. From a similar cause, the American Union has gradually dwindled into a state of decay, approaching annihilation. The people’s happiness in both countries would be promoted by the proper authority to provide the revenue for public necessities. . . . (The writer lists several revenue raising options, shows all inadequate or improper.) Internal Taxes Protect Union’s Credit If the national government had the authority to raise money through new taxes, it would be able to borrow as much as its necessities might require. Both Americans and foreigners could confidently lend to it. But to depend on a government that must, itself, depend on thirteen other governments (a reference to the then current method of requisitions from the individual states) for the means to fulfill its contracts . . . would require a degree of credulity rarely seen in the pecuniary transactions of mankind and unreconcilable with the usual sharp-sightedness of avarice. Taxation Issue Needs Attention This discussion may seem unimportant to men who envision a poetic, utopian America. But to those who (have a firmer grasp of reality and understand history and human nature) these issues are entitled to serious attention. -10- (FEDERALIST 41) Constitutionally Vested Federal Powers Six Categories of Federal Power 1. Security against foreign danger. 2. Regulate intercourse with foreign nations. 3. Maintain harmony and intercourse in the States. 4. Miscellaneous objects of general utility 5. Restraint of the States from certain injurious acts. 6. Provisions giving efficacy to these powers. 1. Security Against Foreign Danger The powers within the first class are: declaring war and granting letters of marque, providing armies and fleets, regulating and calling forth the military, levying and borrowing money. . . . Defense Must Equal Possible Offense . . . What justifies limiting a defensive force when the force of offense cannot be limited? If (we) could chain the ambition or limit the exertions of all other nations, then (we) might prudently chain the discretion of (our) government and limit the exertions for (our) own safety. Peacetime, Military Prevents War How could a readiness for war in time of peace be safely prohibited, unless we could also prohibit the preparations of every hostile nation? Security can only be regulated by the means and the danger of attack. It will always be determined by these rules and no others. . . . This paper continues in this vein until explanations and justifications of vested federal powers are built into a convincing argument in their favor. This presentation was never intended to be definitive of the entire broad range of subjects argued in The Federalist, but more of an insight into the circumstances and general political environment that prompted its publication. Dick Leverette *I was greatly aided by Mary E. Webster’s book, The Federalist Papers In Modern Language. At the time The Federalist was written English expression was handled differently, at least in written form. Rich in gerunds, infinitive phrases and, to me, odd and annoying circumlocutions, 18th Century sentence structure leaves me frequently rereading passages, trying to figure out what was meant. I recommend Webster’s book if anyone is inclined to further study on this subject.