The Federalist Papers: A Reader’s Guide 9781441185860, 9781441199867, 9781501300745, 9781441108142

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Bloomsbury Reader's Guides
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Copyright
Contents
Acknowledgments
Foreword
Introduction
1 Overview and background
2 Context and themes
3 Reading The Federalist Papers
4 Contemporary relevance
Bibliography
Index

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The Federalist Papers

bloomsbury READER’S GUIDES Bloomsbury Reader’s Guides are clear, concise and accessible introductions to classic works. Each book explores the major themes, historical and philosophical context and key passage of a major text, guiding the reader toward a thorough understanding of often demanding material. Ideal for undergraduate students, the Guides provide an essential resource for anyone who needs to get to grips with a significant text.

The Federalist Papers A Reader’s Guide

KYLE SCOTT

N E W YOR K • LON DON • N E W DE L H I • SY DN EY

Bloomsbury Academic An imprint of Bloomsbury Publishing Plc 175 Fifth Avenue New York NY 10010 USA

50 Bedford Square London WC1B 3DP UK

www.bloomsbury.com First published 2013 © Kyle Scott, 2013 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Bloomsbury Academic or the author. Library of Congress Cataloging-in-Publication Data Scott, Kyle, 1977The federalist papers : a reader’s guide / Kyle Scott. p. cm. Includes bibliographical references and index. ISBN 978-1-4411-9986-7 (pbk. : alk. paper) -- ISBN 978-1-4411-8586-0 (hardback : alk. paper) 1. Constitutional history--United States--Sources. 2. United States--Politics and government--1783-1789. I. Title. KF4515.S36 2012 342.7302’9--dc23 2012029490 ISBN: 978-1-4411-0814-2 Typeset by Fakenham Prepress Solutions, Fakenham, Norfolk NR21 8NN

CONTENTS

Acknowledgments  vii Foreword  ix

Introduction  1 1 Overview and background  9 2 Context and themes  35 3 Reading The Federalist Papers  45 4 Contemporary relevance  173 Bibliography  177 Index  181

ACKNOWLEDGMENTS

My understanding of The Federalist Papers has been deeply influenced by the late Ross Lence. Although the views I express and the errors I make should not be attributed to him. I would like to thank the acquisitions editor, Marie-Claire Antoine, at Bloomsbury, formerly Continuum, who invited me to take on this project and saw it through to the end. This is the second project—the first being Federalism—on which I have worked with her, and I hope to have many more. I can only hope she feels the same way. Thanks should also go to Janine Turner, Cathy Gillespie, and Amanda Hughes at Constituting America where I have had the opportunity to write several entries on the Constitution, Bill of Rights, and The Federalist Papers. In each of my three previous books some mention has been made to The Federalist Papers with the most extensive treatment coming in Dismantling American Common Law and The Price of Politics. My wife has supported me with great patience and understanding during each of these endeavors. I write books to help address certain questions that I think are important, but my wife keeps me grounded and focused on the things that really are important—family, love, and laughter. She fills my life with purpose and meaning, and she has given me two beautiful and intelligent children who I love more than I thought anything could be loved.

FOREWORD

Debates abound regarding the original meaning of the U.S. Constitution. So far in 2012 Americans have debated whether President Barack Obama’s signature legislation, the Affordable Care Act, is constitutional and whether a state, or only the national government, can make laws regarding immigration policy, to list two current questions. So how then does one determine the constitutionality of current congressional legislation or presidential and administrative action? How does one know the original meaning of the Constitution? A frequent suggestion to the concerned and inquisitive is to consult The Federalist. Those 85 essays have been widely discussed in recent years and months. Hoover Institution’s Peter Berkowitz considers the essays to be essential for a proper understanding of the Constitution, and with lament, he asserts that they are not properly taught—if it at all—in colleges and universities. Five days after Berkowitz’s column, UC-Berkeley history professor Mark Peterson offered a rebuttal. He explained how he and his colleagues assign and incorporate readings from The Federalist into the halls of higher learning. Another professor, Steven L. Taylor, believes The Federalist should be assigned more in syllabi but writes that it is “wrong to state that ‘colleges don’t teach the Federalist Papers’.” Why all the fuss? Maybe it is because, as former University of Indiana professor John J. Patrick has written, “The Federalist are core values and principles of the American heritage and foundations of national unity in a pluralistic society. These ideas are also keys to understanding how American government works.”1 Indeed, the Federalist Papers are important, since they have been a significant source of understanding original meaning since the early days of the United States. The longest serving Chief Justice of the U.S. Supreme Court, John Marshall, presided over numerous watershed judicial decisions from 1801 to 1835. Law students

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learn and legal scholars frequently cite them even today. Six important cases in which Marshall presided over are Marbury v. Madison (1803); Fletcher v. Peck (1810); McCullough v. Maryland (1814); Dartmouth College v. Woodward (1817); Gibbons v. Ogden (1824); and Worcester v. Georgia (1831). In his decision in the 1821 Cohens v. Virginia, Chief Justice Marshall commented that the 85 essays that we call The Federalist were the “complete commentary on our constitution.” It was so, Marshall reasoned, because Hamilton and Madison wrote the vast majority of the essays (Jay penned only five), and the two had significant roles in drafting the Constitution. In essence, Marshall suggests that one need look no further than The Federalist to understand original meaning.2 Another esteemed American jurist was Joseph Story. He served on the U.S. Supreme Court from 1811 to 1845. To this day, legal theorists and scholars check with his Commentaries on the Constitution of the United States (1833). In this instructive work, the Massachusetts native considered The Federalist “an incomparable commentary of three of the greatest statesmen of their age.” He also remarked that Chief Justice John Marshall’s “extraordinary Judgments” followed the Federalist Papers out to their “ultimate results and boundaries.” The Federalist—and Marshall’s decisions and constitutional theory—were the strongest influences upon Story’s understanding of the Constitution’s original meaning.3 Not only judges recommended that The Federalist was a superior commentary. In a letter of November 1788, Thomas Jefferson, author of the Declaration of Independence (1776) and later the third President of the United States (1800–08), remarked that The Federalist was the “best commentary on the principles of government which ever was written.” One gets the sense in Jefferson’s praise, however, that the 85 essays by Hamilton, Madison, and Jay should not be treated as a Rosetta Stone. In that same letter to James Madison, he still recommended that a bill of rights “should be added” to the U.S. Constitution and that the “minorities are too respectable not to be entitled to some sacrifice of opinion in the majority.”4 We should pause here and discuss why The Federalist was written and the process by which the Constitution became the supreme law of the land. In the mid-1780s, the call for what Americans described as a more “energetic” national government

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was heard, since more than a few Americans considered the nation’s first constitution, the Articles of Confederation, as too weak. States possessed too much sovereignty, and the national government should have the authority to tax and provide for a common defense, the argument went. In 1787 a Constitution convention was called, and 55 delegates from all the states—except Rhode Island—met in Philadelphia. During the summer of 1787, the delegates discussed and made several critical compromises regarding representation, slavery, and commerce. In the end they hammered out a plan for a new, “energetic” government of the United States with enumerated powers.5 This plan, the Constitution, did not immediately go in effect. It needed the approval of the people of the United States and was therefore submitted to the people of the States to ratify (approve). Each state held a ratification convention, and towns and counties elected delegates to serve and vote to approve or reject the Constitution. During this process, many called for a “bill of rights” or a “declaration of rights” to be added to the Constitution. The Federalists, those who proposed the Constitution, believed such an addendum was unnecessary. They argued that the powers given to the national government were limited and enumerated in the document. Everything else was left to the States. The Anti-Federalists, those who opposed the Constitution outright or at least until a bill of rights was included, feared certain broad clauses, such as “necessary and proper” and “general welfare,” so they asked for written guarantees that certain liberties, such as the freedom of the press, religion, and speech, would not be encroached upon by the national government.6 The Federalist was written during a transitional time to answer Anti-Federalist concerns, specifically to answer Anti-Federalists in New York and to secure the Constitution’s ratification in that state. New York Governor George Clinton had written essays questioning the passage of the new form of government, and, although only nine States were needed for the new Union to come into existence, New York’s inclusion was uncertain. Two of the three delegates at the Philadelphia Convention walked out in protest. Alexander Hamilton, the third delegate, remained and voted. Once the document was submitted for New Yorkers’ approval, Hamilton and his political allies knew they had a difficult road to travel. Anti-Federalists placed many intellectual

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road-blocks along the way, and one was cogent pamphleteering. The Federalist Papers were written to remove any doubt and assuage any fear among New Yorkers questioning whether giving the national government power would be a step toward creating what might become an oppressive government. Hamilton, Madison, and Jay furthermore explained throughout the essays that the states maintained sovereignty in powers not listed in the Constitution and insinuated that the opponents of the Constitution were filled with paranoia. In short, Anti-Federal criticism and concern prompted the authorship of The Federalist and the Constitution passed barely in The Empire State by a narrow three votes (30-27). Many New Yorkers remained skeptical. Without Anti-Federalist concern, the 85 essays might not have been written and the “best commentary on government,” as Thomas Jefferson described it in 1788, might not be consulted today.7 As written previously, each state held a ratification convention after the Constitution was submitted to the people to ratify. At these conventions the Anti-Federalist/Federalist debate continued. Delegation numbers ranged from 26 at the Georgia convention to 355 at the Massachusetts convention. Nine states quickly ratified the Constitution—Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire. In two states (Georgia, 26-0, and New Jersey, 38-0) a unanimous vote among delegates was cast for the Constitution. Even though the issue was more controversial in Massachusetts (187-168) and Pennsylvania (46-23) and South Carolina (149-73), the new Union under the Constitution was formed. (All that was needed for the Constitution to take effect were nine states’ approval.) The question that remained was whether New York, Virginia, North Carolina, and Rhode Island would remain outside of this Union. The Union needed the four states’ inclusion maybe more so than the states—at least Virginia and New York—needed to be in the Union. Intense debate occurred in the remaining four states, and the document was narrowly approved by the hold-outs. Rhode Island waited until 1790, and in 1788 North Carolina voted neither to reject nor ratify the U.S. Constitution with a 184-83 vote. The Tar Heels wanted a bill of rights added to the document. Once they were assured one would be added, another convention was held in 1789 and the Constitution was ratified with a 194-77 vote. The Union really needed Virginia and New York to join. Even

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though the Articles of Confederation had already been replaced, Virginia and New York delegates called for changes to be made to the Constitution and for clarification of certain constitutional passages. Americans listened to the requests of those from New York, Virginia, North Carolina, and Rhode Island. The Federalist was written to persuade New Yorkers, in particular, to approve the Constitution, and its imperfections, as expressed by the Anti-Federalists, were avoided. When writing View of the Constitution of the United States (1803), the first extended, systematic commentary of the U.S. Constitution after ratification, St. George Tucker emphasized that the Federalist Papers’ authors had “manifested abilities in the development of its [the Constitution’s] eminent advantages.” Hamilton, Madison, and Jay, wrote Tucker, should have presented its defects with “equal candor.” But the authors were writing to persuade.8 Madison was well aware of The Federalist Papers’ purpose and that the ratification conventions, as historian Jeff Broadwater points out, were an important part of how the Constitution evolved into existence and what gave the document its authority. The ratification debates were so meaningful and instructive that James Madison later quoted excerpts from the ratification conventions’ minutes during congressional debates. In 1791, Madison opposed Alexander Hamilton and his plan for the formation of the national bank. At a time when he could have emphasized an examination of The Federalist, Madison advised his congressional peers to consider “the explanations in the state conventions.” It was through this examination that one could obtain ample evidence as to how the Constitution was understood and adopted. During the 1796 debate regarding Jay’s Treaty, Madison later read excerpts from the Pennsylvania, Virginia, and North Carolina convention minutes. In trying to convince Congress that the treaty making power was a limited one, he advised his congressional colleagues that the “meaning of the instrument [Constitution], beyond the face of the instrument,” was to be “found in the state conventions, which accepted and ratified the constitution.” He later clarified that the debates might not be entirely and accurately recorded, but that they should be a guide to originalism.9 Madison was not alone in using state ratification convention minutes to understand original meaning. An esteemed U.S. Representative from North Carolina, who became Speaker of

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the House (1801–07) and later a U.S. Senator, Nathaniel Macon reminded his congressional peers of the ratification conventions’ importance during the 1798 Sedition Bill debate, and he read excerpts from leading North Carolina Federalist James Iredell’s speeches at the Convention. The Sedition Bill was an effort by Federalists to silence Republican criticism in the papers. To remind Congress that the national government had no authority in this arena, Macon read the First Amendment aloud. He then read excerpts from the state ratification conventions and reminded his colleagues that no one gave Congress the authority to regulate the press.10 But back to Madison, who Americans consider to be the “father of the Constitution.” While scholars currently write that The Federalist is the key [italics added] to understanding original constitutionalism, the father of the Constitution, James Madison, regarded the state ratification conventions as “the key.” In 1821, the former, fourth President of the United States expressed that thought. That year, Thomas Ritchie, editor of the Richmond Enquirer, asked Madison when his notes on the Philadelphia Convention would be published. Madison wanted them published posthumously, so he informed the Virginian that for an original understanding, he should consult the actual document and the state ratifying conventions: As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiousity felt by every people to trace the origins and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. All the authority which it possesses (italics and emphasis added).11 Although The Federalist is not an oracular guide (for the Anti-Federalist writings and state ratification conventions should

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be read as well), it is folly to ignore the 85 essays. They are essential to an understanding of the original meaning of the Constitution. Even though St. George Tucker was not in awe of The Federalist, he expressed an appreciation and understanding of its importance and encouraged students of constitutional law and politics to examine it. In the conclusion from View of the Constitution of the United States, Tucker recommends a reading of The Federalist Papers: But, not withstanding, those letters [The Federalist] are not altogether free from objectionable parts, yet far greater proportion of them contain so just a commentary upon the principles of republican government, and of a federal union of the states, that I cannot too warmly recommend the perusal of them to those who wish to make themselves perfectly acquainted with a subject so truly interesting to every American citizen, as the federal government of the United States.”12 Troy L. Kickler, Ph.D. Founding Director, North Carolina History Project, Raleigh, North Carolina

NOTES  1 Peter Berkowitz, “Why Colleges Don’t Teach the Federalist Papers.” Wall Street Journal, May 6, 2012; Mark Peterson, “More False Attacks on What and How We Teach at Berkeley.” www.Blogs.Berkeley.edu; The Washington, Jefferson, & Madison Institute, “Teaching the Federalist Papers in Secondary Schools.” www.wjmi.blogspot.com/21100_10_01_archive.hrml; Steven L. Taylor, “Teaching The Federalist Papers.” May 7, 2012. www.outsidethebeltway.com/teaching-the-federalist-papers.html.  2 Gregory Maggs, “A Concise Guide to the Federalist Papers As A Source of the Original Meaning of the United States Constitution.” Boston University Law Review (2007), 801–47.  3 Joseph Story, Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution (Boston, 1833).

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 4 Thomas Jefferson to James Madison. November 18, 1788. www.teachingamericanhistory.org/library/index.asp?document.  5 Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York, 2010).  6 Ibid; Brion McClanahan, The Founding Fathers Guide to the Constitution (Chicago, 2012).  7 Michael Schwartz, “ ‘A Great Compliment to the Jews’: A Day of Fasting and the Ratification of the Constitution—An Untold Tale from 1788.” Commentary, July/August 2012, 31–5; Maeir, Ratification; McClanahan, Founding Father’s Guide.  8 St. George Tucker, View of the Constitution of the United States (Indianapolis, 1999, reprint).  9 Jeff Broadwater, James Madison: A Son of Virginia & a Founder of a Nation (Chapel Hill, 2012); James Madison, “Speech in Congress Opposing the National Bank.” February 2, 1791. www.constitution. org/jm/17910202_bank.html; James Madison, “Speech in Congress on Jay’s Treaty.” www.constitution/jm/17960406_jaytreaty.html. 10 William E. Dodd, The Life of Nathaniel Macon (New York, 1970, reprint), 121–6. 11 James Madison to Thomas Ritchie, September 15, 1821. In Gaillard Hunt ed., The Writings of James Madison, 9 vols (New York, 1901–10): 9: 72. 12 Tucker, View of the Constitution, 311.

INTRODUCTION

After the delegates of the Philadelphia Convention approved the new Constitution, they needed nine of the 13 colonies to ratify it in order for it to take the place of the Articles of Confederation. Support from New York was necessary for the success of the new project in that it was one of the wealthiest and most populous of the former colonies. However, it was not clear whether New York would agree to the new Constitution. Because the Convention in Philadelphia had been held in secret, and the new Constitution was a replacement of the Articles of Confederation when it was only supposed to be a revision of the Articles, there was quite a lot to be skeptical about. In order to persuade the people of New York, and with them the rest of the country perhaps, John Jay, Alexander Hamilton, and James Madison, writing under the pseudonym Publius, published articles in favor of ratification in New York newspapers. Beginning in October 27, 1787—about six weeks after the Philadelphia Convention had adjourned— and continuing through April 2, 1788, Publius wrote what were essentially modern op-ed articles to address the concerns of the people and refute the opposition’s claims. In the 85 published papers—which were at first released separately but then released as The Federalist Papers in a two-volume collection in March and May of 1788—the authors described their vision of how each of the three branches of government would work, the relationship between the states and the national government, the advantages of a more centralized system compared to that found in the Articles of Confederation, the consistency between the Constitution and republican principles, and their theory of human nature. Eventually New York, and every other colony, ratified the new Constitution. The writings of Publius have become a valuable source of insight into the thought of the founding generation and the meaning of the U.S. Constitution. Furthermore, the writings of

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Publius express universal and permanent truths about the nature of government and the human condition, which means the insights expressed have relevance for matters beyond the U.S. and the U.S. Constitution. There has been no shortage of writing on The Federalist Papers and its meaning. The scholarly literature includes efforts by historians, political scientists, and legal scholars. These efforts have provided needed insight into many facets of the American political tradition; but for the newcomer these works are too narrow and technical to be of much use. The text which I propose will walk the reader through the 85 papers systematically, drawing out the broader teachings as informed by my own reading of the text and what others have written. While the size itself is difficult for many readers to overcome, it is the complexity of the argument and the structure that proves to be the largest hurdle in grasping the text, which is one reason why having a reader’s guide that walks the reader through the text will ultimately prove so valuable. In addition, given the nature of the argument and the manner in which it was made means that the reader must have a sound understanding of the Western intellectual tradition and the immediate historical context in which it was written if one wants to have a chance to understand what was written and why it matters. No new reader can be expected to have a sufficient background in these areas, which is another reason why this reader’s guide will prove helpful, since it will position the text within the larger philosophical and historical context for the reader. The rest of this book will unfold in four chapters. Chapter One will provide some of the historical background that makes appreciating and comprehending The Federalist Papers possible. A brief biography of the men who wrote the papers under the pen-name Publius—Alexander Hamilton, James Madison, and John Jay—is provided so that readers will understand what each man did before becoming Publius and what he went on to do later on in his career. This will help readers relate to the authors as well as support the claim that The Federalist Papers were not merely musings of isolated thinkers but politicians and statesman who played an active role in government before and after the Constitution was ratified. Chapter One will also include a general overview of the Anti-Federalists, as it was these critics of the proposed plan that

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Publius was writing against. One could conceive of The Federalist Papers as a dialogue with the Anti-Federalists. I will give a brief introduction to the Anti-Federalists’ argument against ratification. Chapter Two will provide a more detailed historical context of The Federalist Papers by reviewing the objections to the constitutional convention and its product, the ratification process at the state level, and end with a discussion about the impact of The Federalist Papers on the ratification process. Chapter Three makes up the bulk of the text, as it is in this chapter that a summary and analysis of each paper will occur. But at the beginning of the chapter, I will provide five broad themes that readers should keep in mind while reading the papers, since they are themes that are touched on in one way or another in each paper. But apart from these general themes The Federalist Papers follows an outline given in the first paper. Recognizing the outline from the beginning will help readers comprehend the argument as they read through the large text. Chapter Three generally follows this outline. Papers 1 to 36 comprise the first section of the papers. Papers 1 to 14, (pp. 58–85), describe the benefits of the union for the future political prosperity of the nation and the people of New York. The papers provide an affirmative statement on the benefits associated with union, and in particular, the feasibility and advantages of a large-scale republican regime. Prior to Publius, the traditional thought had been that republican government was only possible in smaller regimes. Madison turned this formulation on its head in the famed Federalist #10 in which he argued, through an extension of the argument presented in #9 and one that will be picked up again in #51, that by extending the sphere the nation would be able to decrease the likelihood of a faction taking control of the government. While the first papers discuss the benefits of the proposed plan as measured against proposed political ideals, papers 15 to 22, (pp.  86–91), deal with the proposed plan’s advantages over the existing Articles of Confederation. The central theme of these papers is that the existing regime lacks the power to get anything accomplished. This means that the new nation will crumble due to fighting and a general lack of cooperation among the states, and/ or it will find itself so weakened by a lack of unity—a unity that can only be achieved through greater centralization—that it will be

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devastated by an external attack leading to its take-over by some European power. After discussing the proper role of government in general terms, then shifting the discussion to how the existing confederacy falls short of that role, #23 to 36, (pp.  91–9), demonstrate how the proposed constitution is a better alternative, since it meets the requirements of what it means to be a good government as outlined in #1 to 14. Papers 1 to 14 also discussed the proposed plan in concrete terms, but #23 to 36 discuss the amount of power or “energy,” the proposed plan would give the national government. The reader should be attentive to the rhetorical strategy employed in #1 to 36. Papers #1 to 14 discuss the utility of a union and expansive republic in somewhat generic forms; while the next set of papers discusses the negative aspects of the existing regime. This then sets the stage for papers 23 to 36 in which the authors discuss how the new Constitution meets the expectations set forth in #1 to 14 and corrects the deficiencies of the existing regime highlighted in #15 to 22. Papers 37 to 83 deal with the specific institutional parameters set forth by the new constitution. Papers 37 to 40 (pp.  99–102) focuses on where Publius discusses how the new constitution conforms to the principles of republicanism and federalism which then gives way to a more detailed discussion of federalism in papers 41 to 46, (pp. 103–5), and a continued discussion of the separation of powers in papers 47 to 51, (pp. 106–9). Because the Convention at Philadelphia had been authorized only to revise the Articles of Confederation, the proposed Constitution was seen as a violation of that original plan and thus was greeted with a fair amount of skepticism about whether the conveners had usurped their authority. Publius greets this question in #40 when he says that regardless of what occurred before and during the Convention, the proposed plan should still be viewed on its merits and not in conjunction with the controversy surrounding the Convention. The three papers that preceded #40, and which open the second volume of the text, reacquaint the reader with the ways in which the new plan is better able to approximate the republican ideal. Paper 37 argues that Publius is acting without bias, just as those at the convention were able to work past their petty disagreements to generate a plan that was not perfect but would allow the nation to work toward perfection. Paper 38

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continues with this thought while picking holes in the opposition’s claims, and #39’s most important contribution is its elaboration of Publius’ idea of federalism. The modern reader may have difficulty understanding the phrase “partly federal, partly national” because we might forget that in Publius’ time federal meant confederacy. What we have come to know as federalism was thought to be partly federal, partly national by Publius. This section will evaluate the claims of #39 against the principles laid out in #37 to 38 to show why Publius thought a partly federal, partly national regime was necessary for such a large country and for the preservation of republican principles. Papers 41 to 46 (pp. 103–5) revisit the concerns raised by the opposition in Papers 37 to 40 (pp. 99–102). The people had a general attachment to their states and skepticism of a new national regime. Papers 41 to 46 address the concerns of those who might think the new government will threaten the states. These papers outline in general terms those provisions of the Constitution that give states their power, protect them from national encroachment, and discuss how the people’s attachment to their state governments will be the ultimate force in keeping national power at bay. These themes build on what was argued in #23 to 36 and #39. Paper 47 begins Publius’ lengthy discussion, (pp.  106–9), of how the institutional design of the new system will work. Papers 47 to 51 discuss the separation of powers. Paper 51 is the most famous paper in this section and is clearly linked to #9 and #10 thematically, since each discusses how institutions can be designed to facilitate healthy competition among people and interests that may be motivated by unhealthy ambitions. Because the nature of man will never change, which at its core is motivated by selfinterest, institutions should be designed to allow man’s self-interest to manifest in such a way that policies for the common good will result. Publius argues that if we pit ambition against ambition, the competition will generate an overall positive good. This is the idea behind the separation of powers in that no branch will take too much power from the others, as each will be seeking to increase its own power and the struggle for power will generate equilibrium. Papers 52 to 58, (pp.  109–16), discuss the operation and role of the House of Representatives which was intended to be the lower house and therefore most reflective of the people’s will. The bicameral legislature was the result of what has become known as

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the Connecticut Compromise in which seats in the lower house would be apportioned among the states by population and the upper house would have two representatives from each state regardless of population. These few papers are packed with information about how the House will function, why it was crafted in this manner, and the benefits of the design. The general argument is that the lower house will be a bulwark against government and elite tyranny due to its attachment to the people. Its frequent elections and attention to local needs will generate an allegiance to the people on behalf of the representatives that will permeate through all of their decisions. The next three papers, 59 to 61, (pp. 116–20) and deal with the regulation of elections. Since election determines who will be in office, and thus whose interests will be represented, a discussion of elections is of paramount importance. And because the President, Senate, and House are each elected by different constituencies to different term lengths it is important that Publius is able to explain these differences and how they prevent factions from taking hold and promoting the public good. Papers 62 to 66, (pp.  120–27), discuss the constitutional contours of the Senate and confront some objections in #66. The papers contrast the powers of the Senate with those of the House of Representatives as well as the nature of its members and the impact it would be expected to have on the separation of powers, given its role in impeachment and treaty making. These papers are important for understanding the Senate as Publius understood it, but it is equally important because it shows us the skepticism Publius had for direct democracy. Given that a monarchy was what the colonists had just rebelled against, it would be no surprise that there would be some need to explain how the executive under the proposed plan would be different from a king. A common rhetorical strategy for Publius is to compare the proposed plan to existing practices within the states. In #67, the first paper discussed in the executive (pp. 127–40), we see Publius compare the President with the Governor of New York. This is an important comparison, since the people of New York are the audience for Publius and because the Anti-Federalists tout the superiority of the state governments. By making this comparison, Publius appeals to New Yorkers and uses the Anti-Federalist argument against itself. Paper 68 again shows Publius’ skepticism

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of direct democracy when he discusses the Electoral College and Presidential elections. Papers 69 and 70 elaborate on the character of the executive as well as how the designed executive is consistent with republican principles. Papers 71 to 72 revisit the question of elections raised in #68 by discussing the length of term in office, the frequency of elections, and the re-eligibility of the executive. Papers 78 to 83, (pp.  140–60), demonstrate how vital an independent judiciary is for preserving rule of law, the balance of powers, and republican government. Significant space will be dedicated to the judiciary in order to show the revolutionary character of the American judiciary which has come to set a precedent for nearly all modern judiciaries and the role judges serve in a representative system of government. Papers 84 to 85, (pp. 161–70), bring The Federalist Papers to a close. Paper 84 takes on miscellaneous objections, with the most historically significant being that the constitution lacked a Bill of Rights. Paper 85 serves as a summary of the papers and shows that while the proposal may have some defects, they are not so bad that they should hold back ratification. Paper 85 expresses Publius’ embrace of a government that is responsive to the needs of the nation and its people. Chapter Four, the final chapter, discusses the contemporary relevance of the papers in the hopes of convincing the reader that The Federalist Papers are just as relevant to the reader’s life today as they were to the founding generation. There are several good editions of The Federalist Papers from which the reader can choose. In this book I used the Signet Classic edition edited by Clinton Rossiter with an introduction and notes by Charles R. Kesler. This edition is the most commonly assigned in university courses and is the top-selling edition which means there is a greater chance that anyone who uses this reader’s guide will have the Signet Classic edition than any other. Therefore, all page references will refer to the Signet Classic edition.

Chapter One

Overview and background To oversimplify the ratification debate, let us begin by saying that one side believed the Constitution would promote the public good, and the other did not. If we conclude that after the Constitution was ratified, the public good had been achieved, we can safely say that the Federalists won the debate and were right. Or, we can argue that they won the debate but were incorrect about how well the Constitution would lead to the public good. That is an empirical argument that can only be settled once we come to an agreement on how to define public good. We do not usually think of the Constitution in these terms, but those who took part in the ratification debate did. To fully appreciate the complexities of the U.S. Constitution we must first come to appreciate its historical context and theoretical implications. The Anti-Federalists, those who opposed the proposed Constitution, were in favor of a more decentralized government than what the Constitution provided and what the Federalists desired. This may not have been the consensus among all of the Anti-Federalists but it was in fact the dominant theme among the more prominent thinkers. The Federalists argued that the Constitution would provide a stronger national government, but a national government that would check itself, the states, and the people. In order to evaluate the claim about whether the Constitution promotes the public good, two fundamental questions must be answered. (1) Were the Anti-Federalists correct in their formulation, and has the national government grown stronger than the state governments? (2) Has such a growth in national

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power detached the government from the people, thereby limiting its responsiveness to the people’s needs in an effort to promote and have knowledge of the public good? However, this book provides no means for resolving this debate, and I offer no suggestion as to which way the reader should lean. The reason for my lack of positioning on this issue is because this book is no place for such arguments. This book gives a guide to one side of the ratification debate. Thus, it is nothing more than a first step on the students’ path to getting to the most important questions. That said, let us start at the beginning. I hope it is obvious that Publius was not the real name of the authors of The Federalist Papers. Publius was the pseudonym used by Alexander Hamilton, James Madison, and John Jay, who are the real men behind The Federalist Papers. Publius was short for Publius Valerius Publicola who was depicted in Plutarch’s Lives as being a Roman citizen who saved Roman republicanism. Whether or not Hamilton, Madison, and Jay thought the average reader would understand the reference is unclear. What is clear is that the use of a single pseudonym indicates that they understood themselves to be embarking on a project that would save republicanism in America. The reasons one might use a pseudonym are numerous. The most common reason is to avoid persecution. If one is writing objectionable ideas one may not want to be affiliated with those ideas for fear of being persecuted. It is true that the men who met to draft the Constitution in Philadelphia had overstepped their legal authority, but it is unlikely that they feared persecution. Another reason, and one that is likely in this case, is that the use of a pseudonym allows one to avoid perceived conflicts of interest. Readers are more likely to believe people who appear to be unbiased. If the executive of an oil company writes about the virtues of increased oil production the reader is likely to be skeptical of the argument since the oil executive stands to make a lot of money if one is persuaded by her argument. But if a similar argument is made by someone outside the oil industry who does not stand to benefit from increased oil production, the reader may be less skeptical of the argument and conclusions. Similarly in the case of Publius, Hamilton and Madison were central figures in the constitutional convention, so readers would be skeptical of their

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defense of the new document. Readers could reasonably surmise that Hamilton and Madison would not want to see all of their hard work in Philadelphia go to waste, so they would write whatever sounded good whether it was true or not in order to persuade the people of New York. Likewise, if there was something in the Constitution that needed to be covered up, who best to do it than the primary architects? So the pseudonym gave the thinly veiled appearance of impartiality. But for our purposes the pseudonym is important because it provides interpretive leverage. There is considerable debate over how The Federalist ought to be read, particularly on the point of whether we should read each paper as though it were written by a particular author or by Publius. Those who argue that papers written by Hamilton (or Madison or Jay) should be read within the context of what we know of Hamilton (or Madison or Jay) today. If read in this way we can read the different tendencies of the different authors to not only enlighten us about the individual authors but about what the Constitution meant to different people of the time. This strategy is reinforced by the fact that Hamilton and Madison would become arch-enemies after the document was ratified. Hamilton pursued a strong executive and national power, each of which Madison would oppose. The two went head-tohead when they debated the President’s Neutrality Proclamation in the Pacificus–Helvidius debates in which Madison, writing as Helvidius, accused Pacificus, the nom de plume of Hamilton, as being a closeted monarchist. However, this book reads the authors of The Federalist as writing with one voice. I assume that they wanted to be read as one, since they wrote under a single name, and therefore attempt to read them as they would like to be read. I consider Publius as one person. This interpretation is not only supported by a simple deduction from their choice of writing under one name (Why would they have chosen a single name if they didn’t want to project the image of singularity?) but by the historical record as well. In addition, as Madison wrote, [i]n the beginning it was the practice of the writers, of A.H & J.M. particularly to communicate each to the other, their respective papers before they were sent to press. This was rendered so inconvenient, by the shortness of the time allowed,

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that it was dispensed with. Another reason was, that it was found most agreeable to each, not to give a positive sanction to all the doctrines and sentiments of the other; there being a known difference in the general complexion of their political theories (Fleet 1946: 565). The singular intention was to get the Constitution ratified. Despite all their other disputes they were united on this issue. Even so, knowing something about each of the men behind Publius is good information to have, as it will help the reader situate the text historically. It will help students relate to the authors as well as support the claim that The Federalist were not merely musings of isolated thinkers but politicians and statesmen who played an active role in the government before and after the Constitution was ratified. Madison, more than Hamilton, was bookish, which is a nice way of saying wimpy and less informed by experience than reading. He wasn’t a traditional politician as he thought pandering for votes unseemly, and he wasn’t much for speeches. George Minot spoke of Madison’s speeches in the House of Representatives by saying, “they were not his forte. … He speaks low, his person is little and ordinary … a little too much of a book politician.” But he knew how to bargain and maneuver, and he knew what a good government needed to function effectively. Even though bookish, he was not unwise to the realities of politics and the nature of men. His arguments were crisp, well reasoned, and persuasive. Chief Justice John Marshall wrote of Madison, “Eloquence has been defined to be the art of persuasion. If it includes persuasion by convincing, Mr. Madison was the most eloquent man I ever heard” (DeRose 2011: 235). Madison was born and raised in Orange County, Virginia where his family was successful and well connected. Madison did not travel widely as a youth or an adult, although he did go off to college in New Jersey at the College of New Jersey, now Princeton, at the age of 16. He studied under John Witherspoon whose influence can be seen in Madison’s thoughts that share similarities with the Scottish Enlightenment. Madison returned to Virginia, unsettled and searching for something to do, when he decided to enter politics. Madison would go on to serve Virginia as a legislature at the state and national level and would become America’s fourth President.

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Alexander Hamilton would never become President because he couldn’t; he wasn’t eligible for the office since he was not born in the U.S.A. but in the West Indies. His father left the West Indies at a young age and his mother died when he was about 12. Hamilton had to start making his own way early on. He began working as a clerk but became known on the island of St. Croix from a newspaper article he wrote in 1772. Some of the islanders were familiar with his family situation, and were so impressed by his writing that they collected a fund to send him to North America to further his education. He began his education in Elizabethtown, New Jersey, but did not attend the College of New Jersey like Madison but instead went to King’s College, now Columbia University, because they granted his request to study at a quicker pace whereas the College of New Jersey denied the request. During the Revolutionary War he won the favor of George Washington and became his aide-de-camp. This union would continue throughout Hamilton’s career as his highest appointment was in Washington’s cabinet in the capacity of Secretary of the Treasury. There is no telling what else he could have done, but his life was cut short when he lost in a duel to Aaron Burr when he was just 50 years old. John Jay’s upbringing was more privileged than Hamilton’s as he was born into a wealthy family in New York City. He became a lawyer before entering politics. In the political arena he would be the President of the Continental Congress, the ambassador to Spain and France during the American Revolution, and would go on to become the first Chief Justice of the U.S. Supreme Court. At that time the position of chief justice was less important than it is now, which helps explain why he left the post to become Governor of New York. As the state’s Governor he was an outspoken critic of slavery and led its emancipation movement. In 1799 he helped push through a measure which would gradually emancipate the slaves in New York. All slavery was ended, and slaves emancipated in New York by the time he died in 1829. While I treat Publius as a single author it will be easy to see, in some cases, which of the three men wrote which papers based upon the brief biographies provided above. This can be interesting but it is not essential for understanding the argument of the papers which is why the point is not belabored.

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It is important to remember that Publius wrote as part of a larger group known as the Federalists, which might be recognized as the first political party in America. The story of how they became known as Federalists is the result of deft political maneuvering. The primary opposition to the Constitution was based on it being a centralizing document that risked making the states a mere administrative arm of the central government. States’ rights advocates like Thomas Jefferson, George Mason, Patrick Henry, and Elbridge Gerry were wary of the new document. The Federalists were aware of these objections and their opponents. Thus, in trying to head them off at the pass, they adopted the name Federalists to give people the impression, true or not, that they were for a federal form of government and not a national one. This forced those who opposed the constitution to be known as Anti-Federalists, which to the less attentive audience gave the impression that they were against federalism and thus for a centralized regime. In trying to set the record straight, Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats. But there was more to the ratification debates than petty namecalling. There was a serious debate about what the U.S. political system should be, and indeed, what government in general should be. During the ratification debates two sides battled: Federalists and Anti-Federalists. The Federalists were in favor of ratification and the Anti-Federalists were opposed. The people of New York were at the center of this debate. New York was where the most famous and well-known Federalists made their case, namely Publius. The three men who made up Publius argued that the Constitution created a stronger national government that would be able to provide a level of stability that was absent under the Articles of Confederation. Publius argued that the public good could best be achieved when the instability and factions created

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at the local level were controlled at the national level. Where the Federalists saw stability, the Anti-Federalists saw tyranny. The Anti-Federalists were more influenced by their recent encounter with King George III than the failings of Greek city-states. As this book is a reflection on The Federalist Papers it may give the reader the impression that they put forth the only Federalist position or that Publius spoke for the nation. Thus, to get started, it is important to give the reader an introduction to the competing sides of the debate so as to properly situate the rest of the book in its historical and theoretical context. The danger in trying to do this lies in consolidating the arguments of each side. One does not want to distort the position of either side, nor present a united front where none existed. So let me say at the outset: there were many arguments made by each side that were not necessarily in agreement with each other. The arguments I have chosen to put forth here come from the most influential people of the time. For the Federalists this was Publius, the author of The Federalist Papers. For the Anti-Federalists no single spokesperson exists. I have pieced together the arguments of a number of Anti-Federalists that pose direct challenges to the position of Publius. I have made my selections with an eye to context so as not to treat any source unfairly. What I have come up with is a two-sided argument over the ratification of the Constitution and the principles embodied in the Constitution. The first section of this chapter is a general outline of how each side defined human nature and why each side thought it needed a certain amount of restraint from government. The second section defines each side’s view of the public good, how it is to be achieved, and how it is tied to the issue of representation. By the end of the chapter it should be clear that the Anti-Federalists believed that republican principles could only be preserved in the states. In addition, it was through these small communities and republican government that the public good could be achieved. Due to the nature of man, and the differing needs of the people depending on their location of residence, public policy that benefits the public good can only be achieved and known in a small, homogeneous community. Publius, on the other hand, saw small communities as a threat to the common good as they would only be concerned with their own good and be willing to work against the common good or the good of another community to promote their own interests.

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Outline of the debate Since Thomas Hobbes wrote The Leviathan it seems the tradition has been to begin a discourse of political theory by defining the nature of man. The consensus among the Federalists was that government is necessary because the actions of men will not always conform to the dictates of reason (Federalist #15) and in #10 we see these same concerns when Publius writes that an enlightened statesman will not always be at the helm (Federalist #10). While the Anti-Federalists agreed—to some extent anyhow— with Publius’ assessment of human nature, the two sides diverged on the best way for government to deal with the problematic characteristics of human nature. Publius opted for an extended republic while the Anti-Federalists argued for a small homogeneous republic. For the Anti-Federalists, the best way to achieve public virtue was to preserve and promote individual virtue. Thus, the Anti-Federalists were able to promote the public good without sacrificing the good within the individual. The Anti-Federalists may be understood as being more concerned with cultivating character than crafting laws. “More than their Federalist opponents, the Anti-Federalists inclined toward the ancient view that, just as the soul’s excellent qualities have a natural title to rule over the base impulses, public spirit is entitled to govern private interests” (McWilliams 1990: 19). The mechanism for achieving this balance was the preservation of a small republic. The Anti-Federalists recognized that individuals on their own acted in a self-interested manner, a manner of action that could do great harm if politicians were allowed to act in the same way. Cecelia Kenyon recognizes that “They [the Anti-Federalists] took for granted that the dominant motive of human behavior was self-interest, and that this drive found its most extreme political expression in an insatiable lust for power” (Kenyon 1955: 13). Throughout the writings of the Anti-Federalists, they press this point by writing: “the natural lust of power so inherent in man”; or “the predominant thirst of dominion which has invariably and uniformly prompted rulers to abuse their power”; or “the ambition of man, and his lust for domination” (Kenyon 1955: 13). In fact, sometimes the writings of the Anti-Federalists seem almost indistinguishable from Publius when it comes to human

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nature and the need for civil government. “As universal observation assures us, that mankind, are more generally actuated by their passions and appetites, than by their reason; something is necessary to restrain, control or at least counteract those passions: hence the necessity of civil government” (Republicus in Storing 1981a, Vol. V: 161). The Anti-Federalists and Publius are split over how to deal with man’s nature in a way that civil government can work—work being defined differently by each group. Human nature was conceived to be something of a problem in that passion can dominate reason and passion is based in self-interest and transformed into vice. “All I said, was, that mankind were influenced, in a great degree, by interests and prejudices.” (Melancton Smith June 23, 1788 in Bailyn 1993, Part II: 782). Publius argued that the surest way to liberty was through stability that could only be accomplished if human nature was funneled through a properly constructed system that allowed the naturally negative aspects of human nature to lead to socially desirable results. By citing failures of past confederacies, Publius arrives at the conclusion that the surest way to stability is through a “partlyfederal, partly-national” system. If such a statement is to make any sense it must be understood to say that Publius’ understanding of federal governance at this time mirrored what we understand to be a confederacy. Therefore, as Publius argued, in order to provide stability one could not have a confederacy (federation), one needed something with a stronger central government. However, the fear of a tyrannical king had not left Publius’ thoughts completely, and he could not argue for an entirely national system. James Madison, architect of the Constitution in Philadelphia and one-third of Publius, made his position clear at the Constitutional Convention by citing examples from Greece and Rome, as well as Shays’ Rebellion. Madison was in favor of, as were other Federalists, a strengthened national government that had the ability to provide stability so that liberty could be preserved. The Federalist Papers argue that factions (which are harmful to government) originate at the local level, and that national government provides the remedy. Even the last of the papers makes this point. The additional securities to republican government, to liberty, and to property, to be derived from the adoption of the plan, consist chiefly in the restraints which the preservation of the

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union will impose upon local factions and insurrections, and upon the ambition of powerful individuals in single states (#85: 521). The Anti-Federalists arrive at a strikingly different conclusion. More influenced by their recent war over independence with the King of England than examples from the classical world, the Anti-Federalists wanted sovereignty to reside within the states. They believed that the greatest threat to liberty came from above. This threat was embodied in the Constitution which the Anti-Federalists saw as establishing a system that would undermine the authority of the states and work to consolidate their varied interests (Brutus I in Bailyn 1993, Part II: 165–7). Patrick Henry articulates the fear of consolidation quite well: This was a severe conflict. Republican maxims were then esteemed—those maxims, and the genius of Virginia, landed you safe on the shore of freedom … to obtain the most splendid prize you did not consolidate. You accomplished the most glorious ends, by the assistance and the genius of your state. Men were taught by that genius, that they were fighting for what was most dear to them (Henry in Storing 1981a, Vol. V: 231–2). The Federalists and Anti-Federalists looked to history as an authority, but the lessons they derived from their study of history were quite different as each found different sources persuasive and took different lessons from a common history. It appears from even a cursory reading that the Federalists looked to break from the past, and move on to something that had never been tried before. The only lesson they seemed to learn was that all past attempts at nation building were failures, and therefore something different must be tried. This point is arrived at from a reading of #37: The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers that the existing confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore

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furnish no other light than beacons, which give warning of the course to be shunned (#37: 22). It was understood by many of the Anti-Federalists that the fight over independence was fought by 13 separate states, for the preservation of 13 separate states. Those who saw the American Revolution in this light understood the sentiment expressed in #37 as a split with the spirit of that Revolution. “At the separation from the British Empire, the people of America preferred the Establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one.” (Farrand 1911, Vol. I: 340). Furthermore, a Maryland Farmer and Cincinnatus, both Anti-Federalists, criticize the Federalists for getting caught up in their own egos. “We talk now with the utmost confidence in our own experience, and an appeal to the history of mankind, is considered an insult on the sagacity and understanding, of the choice and master spirits of this age” (a Maryland Farmer in Storing 1981, Vol. V: 16–17). And, “Will any one believe, that it is because we are to become wiser, that in twelve years we are to overthrow every system which is reason and experience taught us right?” (Cincinnatus in Storing 1981a, Vol. VI: 20). From this analysis, the fundamental difference between the two sides revolved around not only how they viewed man, but how they interpreted history. Each side’s understanding of history led to their ideas about what was the greatest threat to liberty and the best way to achieve the public good. This understanding of history, liberty, and the public good molded their understanding of good government and of the Constitution. This is not a complete explanation of the concerns or disagreements between the Federalists and Anti-Federalists, but only a brief illustration of the different foundations on which each side stood. The remainder of this preface is dedicated to a more detailed analysis of each side’s argument, particularly as they relate to representation and the public good. This section is intended to give a brief explanation to why each side believed as they did. From this initial look into the debate I have shown why each side disagreed about the Constitution’s ability to provide a good government, and indeed it shows a disagreement over what is good government and the best way to achieve the public good. To understand the disagreement on this issue, one must understand the principles that underlie the discussion.

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The public good According to Publius, the public good is the result of deliberation that is established by the horizontal and vertical separation of powers in the Constitution. The system establishes restraints on decision makers which forces an issue to go through a process of deliberation, and in order to become policy must be persistent enough to survive the deliberative process. Only the policies that benefit the public good will make it through this process. Publius’ position is most decisively argued in #10, and the remaining papers work in support of the theory developed in #10. Through an analysis of Federalist #10, and an explanation of how it is supported by the other Federalist Papers, the reader will begin to appreciate Publius’ understanding of the public good and how it is derived from a proper system of representation. One difference that separates the position of the Federalists from the Anti-Federalists is the size of the republic. Publius speaks of enlarging the orbit, or extending the sphere, so as to allow factions to cancel each other out, or as is stated in #51, for “ambition to counteract ambition.” Publius believes that faction is rampant at the local level, but by extending and enlarging the republic, faction will disappear—or be controlled—at the national level. Therefore, the fundamental question in #10 is “whether small or extensive republics are more favorable to the election of guardians of the public weal.” For an extensive republic to achieve success, there are four conditions that must be met: (1) it must be large enough to protect against the few, but not too large to cause confusion, (2) the ratio of representatives to citizens does not have to be the same in a large republic as in a small one, (3) each representative is selected by a greater number of people, and (4) the separation of powers at the national level must work to represent the aggregate interests of the nation as well as the local interests. Points 1 to 3 may be found in #10; point 4 is arrived at through an analysis of the debate surrounding a bicameral legislature in the Convention in Philadelphia, and the ratification debates in New York over the respective roles of the Senate and the House of Representatives. The logic of points 1 to 3 is grounded in a basic understanding of probability. There are fewer qualified and virtuous leaders than

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there are ambitions politicians. Publius believes that by increasing the pool from which representatives are chosen it is more likely that a qualified leader will be elected, or at least available to be elected. One is forced to ask: Is there no other causal mechanism than reliance upon probability? Publius addresses this by writing, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit, and the most diffusive and established characters (#10: 77). The same logic employed for ensuring that only virtuous men will gain office works for suppressing factions as well. Since representatives are chosen from large districts comprising varying interests it will be impossible for any single interest to gain dominance unless it is in the interest of the national public good. This seems to produce a sort of insulation around the national government. Paper 57 supports this point, as it argues that the House of Representatives would rarely act in opposition to the public good since a bad idea gaining favor in a large number of districts is unlikely. To press this point further, Publius writes in #63 that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the view of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? (#63: 382–3)

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The Anti-Federalist objection to this position is that the national government will decide what a faction is within a district, not the district. The problem is that the national government may misinterpret the district as not acting on behalf of its own public good. The district may be acting on behalf of its own public good but is prohibited from doing so given the nature of the regime. Due to the inability of the national government to know what is in the best interest of each individual community, the public good is best decided at the local level than at the national. That is, the filter system which is created may filter out non-factious interests if those non-factious interests do not gain national support. It is also possible that the national good will do harm to a single district. George Carey adds to the defense of #10 an interpretation that may not be obvious at first. In addition to the idea that increasing the size increases the number of virtuous people, he writes about the principle of deliberation that works its way into Publius’ most famous paper. While not a principle which is directly articulated in #10, “we do not,” as Carey argues, “strain the text or the central tenets of its teachings” to arrive at this conclusion (Kendall and Carey 1995: 111). The idea behind deliberation is that when ideas are debated, only those which are the most rational and in the interest of the public good will make it to the level of actual policy. In order for this principle to work, however, one must rely on the virtue of the leaders and the people. Carey does, and he argues that Publius does as well. It seems the problem is that if the virtue of the people could be relied upon then no such measures would be necessary. Of course the counterclaim is that such a process cultivates the virtue that resides in people. That is, only in the proper setting can people actually be virtuous. This may be so, but there is still no check on the ability of the cunning and ambitious to deceive the others. In addition, institutions that are created by men can be circumvented by men. If men do not mind breaking the rules of the game, and are good at hiding their misdeeds, they will be able to successfully manipulate the system. The Anti-Federalists agree that institutions are necessary to cultivate the virtue in an already good people, but they see the shortcomings of institutional restraints. This is why, at least in part, the Anti-Federalists want the governed to be close to the governors, so as to provide the ultimate check on their actions. It has been said throughout that the Anti-Federalists wanted to preserve the sovereignty of the state, and this is true.

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But more importantly, they recognized that by keeping the state sovereign they would be able to keep control of the government in the hands of the people. These objections aside, the Federalists and Anti-Federalists both agree that the public good is the result of how things get done in the government, not solely by whom. The system of representation and governance will create the public good. The Federalists believed that the Constitution created such a system, the Anti-Federalists did not. However, both agreed that the rules of the game and the design of the system matter, but the Federalists had more faith in institutional constraints than did the Anti-Federalists. To cite Ralph Ketchum, the argument made in #10 is not that public policy is the result of factions competing with one another, but that they will “neutralize” one another so that “deliberative attention be given to ‘the permanent and aggregate interests of the community,’ that is, the public good” (Ketcham 1993: 59). In the parlance of modern political science, one may classify the Federalists as institutionalists. They argue that the institutions created by the Constitution are sufficient to counteract the negative aspects of human nature and politics. The Anti-Federalists on the other hand did not trust institutions as much as they trusted themselves to watch over the politicians. The Federalists believed that the institutions thus created would cultivate the principles associated with federalism and republicanism, but the Anti-Federalists believed that the only thing that could breed these associated virtues was close proximity between the rulers and the ruled. Finally, one of the primary tensions of government for the Federalists was the balance of public and private rights, or public and private good. This may be inferred from the above discussion, but has not yet been explicitly stated. Paper 37 places this tension at the forefront. It may be seen in the tension that comes about when trying to create an energetic yet restrained government. A government that does not interfere with the private lives of its citizens preserves their private liberty at the cost of the public good. The opposite would be a sort of communist regime in which no one possesses personal liberty, yet everything is done in the interest of the public good. The Federalist position seems to be that too much private liberty will lead to instability, and thus must be constrained in order to better preserve private liberty with respect toward the public good. On the other hand, the following section will show

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that the tension between private and public liberty does not play as influential a role in the arguments of the Anti-Federalists for the simple reason that public and private liberty are essentially the same. The Anti-Federalists believe that government is best done in a small homogeneous society so that the interests will be the same. Herbert Storing extracts three fundamental considerations from the Anti-Federalists. Here I will borrow from Storing two of the three fundamental considerations: only a small republic can enjoy a voluntary attachment of the people to the government and a voluntary obedience to the laws, and only a small republic can secure the government to the people (Storing 1981a, Vol. V: 16). By knowing what size of government the Anti-Federalists were for, and understanding their reasons for wanting a small government, we can come to a better understanding of what they consider to be the public good. The Anti-Federalists’ conception of the public good is in one sense the result of the decision-making process. The rules that dictate the policy process will determine, in the Anti-Federalists’ view, whether or not the resulting policy decision is in the public good, which is similar to Publius’ method. Therefore, the public good is determined by each local community determining what is in its own best interest, which is because the local community is more familiar with the needs and values of its citizens than the national government. The logic of this formulation is that the community shares certain values and goals that lead its members to a higher degree of agreement concerning the public good than what can be achieved in a larger society (Agrippa VII). In the simplest terms: it is easier, with all other things being equal, to get a small group to agree than a large group. Rather than recognizing the passions of man and creating a system that would promote those passions and direct the passions toward the public good—as Publius proposed—the Anti-Federalists sought a system that would restrain those passions in the elected officials and the common man. In addition to a restraint on the negative, the Anti-Federalists sought a system that would promote the positive aspects of human nature in order to achieve a public good, rather than promoting the negative in order to achieve a net positive. The Anti-Federalists offer objections to large republics with which those who are only concerned with stability and longevity— as opposed to being concerned with virtue and the good life—can

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identify as well. Quoting Montesquieu, Cato writes in his third letter: For a republic to have only a small territory, otherwise it cannot long subsist. … In large republics, the pubic good is sacrificed to a thousand views; in a small one the interests of the public is easily perceived, better understood, and more within the reach of every citizen; abuses have a less extent, and of course are less protected (Cato III in Bailyn 1993, Part II: 215). Cato goes on to argue that “the duration of the republic of Sparta, was owing to its having continued with the same extent of territory after all its wars; and that the ambition of Athens and Lacedemon to command and direct the union, lost them their liberties, and gave them a monarchy” (Cato III in Bailyn 1993, Part II: 215). Therefore, a small republic will be better equipped to preserve the individual and public good without sacrificing the liberty of either, provide a stable and long-lasting government, and alleviate the tendency toward corruption that necessarily comes with the operation of a large republic, particularly one in which the ratio of representatives to citizens is reduced (see Melancton Smith June 21, 1788 in Siemers 2003: 144). Some Anti-Federalists saw similarities between the size of the new American government and the British Empire, and drew upon the experience of their Scottish ancestors to impress upon the American people the perceived dangers inherent in a large republic (see William Grayson, June 1788 in Siemers 2003: 217–18). A crude example can be used to illustrate the general point of the Anti-Federalists. Take, for instance, military bases. While it may be in the best interest of the nation to cut military spending in order to focus on other areas of national concern, it is not in the best interest of Killeen, TX to lose its military base. While there may be a few citizens of Killeen who do not care, and others who would just as soon see it go, the citizens of Killeen at large understand that it is in the public good to keep it open. That is, in a large nation, the interests of each smaller community may conflict with the interests of the national interests. In a related example, when the national government looks to build a military base, Manhattan, KS is in competition with Hebron, NE for the contract. Therefore, not only are local

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interests capable of being at odds with the national interests, but the interests of each community may be at odds with one another. McClaine from North Carolina expressed his concern over the, as he saw it, consolidating tendency of the Constitution, and the problem of consolidating communities that did not share the same interests: But, sir, it is clear that a consolidation is intended. … It is too large … I conceive that, in the present case, a consolidated government can by no means suit the genius of the people. … We see plainly that men who come from New England are different from us. They are ignorant of our situation; they do not know the state of our country. They cannot with safety legislate us (Elliot 1941: 24). But the type of self-interest that McClaine was in favor of was the sort of self-interest that the Federalists wanted exterminated as community interest was, in the Federalists’ view, inimical to national interest and it was the national interest that was the most important. If one moves this discussion away from material interest and into the context of rights, the discussion becomes even more complicated. Take gay marriage, for instance. Gay marriage is legal in some states and illegal in others. Should the national government step in and tell states that they cannot make it illegal or cannot make it legal? Shouldn’t the policy of a state be reflective of the people’s morality who live and vote in that state? It’s a complicated question and how you answer it goes a long way in determining if you would have sided with the Federalists or the Anti-Federalists. Because the South is most clearly identified with being a defender of states’ rights, it is easy to think that only Southerners were Anti-Federalists. But this is not true. James Winthrop of Massachusetts argued that [t]he idea of an uncompounded republick [sic], on an average of one thousand miles in length, and eight hundred in breadth, and containing six million white inhabitants all reduced to the same standard of morals, of habits, and of laws, is in itself an absurdity, and contrary to the whole experience of mankind (Ford 1970: 63).

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Winthrop’s outlook seems to stem from his belief expressed in Agrippa VII that the primary bond of government is self-interest. He follows this argument to say that local interests are the most closely connected to self-interest; therefore the citizen’s bond is stronger at the local level since the same interests are shared. Decisions should be made through deliberation within the community. They should be made at the level closest to the people. The idea of the Anti-Federalists, as argued by Winthrop, is that self-interest works to unify local communities and it will work to unify a nation when the time comes. One can easily cite the American Revolution, and the resulting unification of 13 separate states for one common cause, as an example of how a loose confederacy can come together when common interest dictates that they should. It seems then that if the community is small enough for its citizens to share similar interests, the public good will be what results from the decision-making process. What is good for one is good for all, and what is good for all is good for the individual, at least in small, homogeneous communities. This conception of the public good is best understood in terms of the general will as expressed by Jean Jacques Rousseau. That is, what is in the public good is also good for the individual, and what is good for the individual is also good for the community. I understand the Anti-Federalists to be saying that the public good is synonymous with the mutual good. For this statement to hold, some qualifications are in order. One qualification is that the community is assumed to be homogeneous. Anti-Federalist Brutus supports this point when he writes, [i]n a republic, the manners, sentiments, and interest of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good (Brutus I in Bailyn 1993, Part II: 173). This point is not lost on Anti-Federalists such as the Federal Farmer or Winthrop in Agrippa XII. Any semi-astute observer would have to ask how realistic this claim is. Is it possible to have a homogeneous society? Perhaps when they were writing, but 200 years later it hardly seems possible, or desirable.

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It also seems unrealistic to think that even in a homogeneous society of small geographic proportions consensus would be possible, and I do not think any of the Anti-Federalists believed that consensus was necessary for republicanism or federalism. It is not realistic to require a consensus, since there will always be deviants. For example, a thief thinks that stealing stereos and selling them is in his best interest, but this interest necessarily operates against the interest of the store owner. The simple solution is to classify the thief as a misfit who is therefore not a member of that society since his acts negatively affect another member of that society. It might be more persuasive to say that not everyone will be led by what is in the public good, and this is why societies ought to create laws that promote the public good. And only the community can make such laws. Nested within this example lies the importance of representation. If the people and communities are not properly represented at the national government level, the laws passed by the national government will not promote the public good in their communities. While banning thievery may be a shared ambition of all communities, and thus in their public good, how it is to be enforced may vary from community to community. One can imagine also that there are issues of public policy that may not be so universally supported or opposed, and should therefore be dealt with by each community as it is in accord with its public good. Anti-Federalists such as George Mason and Richard Henry Lee criticized the national legislature proposed in the Constitution for being too small and unable to represent the large and varied interests of the entire nation. I cite Mason who writes, “[t]o make representation real and actual, the number of representatives ought to be adequate; they ought to mix with the people, think as they feel,—ought to be perfectly amenable to them, and thoroughly acquainted with their interest and condition” (Ford 1888: 288–9). While on the surface the solution would be to increase the size of the legislature, my inclination is that representation is a more complicated issue that cannot be solved by manipulating ratios. Meaning there are more factors than size of constituency, and at least one of these factors would be distance between the representative and those represented. Also associated with distance is the size of the district one represents, and how that can control what type of person is elected to office. Two of the Anti-Federalists must be quoted at length to make this point clear.

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Anti-Federalist Cornelius writes, [t]hey will be far removed, and long detained, from the view of their constituents. … Their chief connections will be with men of the first rank in the United States, who have been bred in affluence at least, if not the excess of luxury. They will have constantly before them the enchanting example of Ambassadors, other publick [sic] Ministers, and Consuls from foreign courts, who, both from principles of policy, and private ambition, will live in the most splendid and costly style. … And then, let any one judge, whether they will long retain the same ideas (Cornelius in Storing 1981a, Vol. IV: 141–2). Patrick Henry also argues this point when he writes, “[a] common man must ask a man of influence how he is to proceed, and for who he must vote. The elected, therefore, will be careless of the interest of the electors. It will be a common job to extort the suffrages of the common people for the most influential characters” (Elliot 1941: 332). By fusing these two quotes, the reader can see that the distance between the district and the seat of the national government, and distance within the district that is the result of too large a geographical boundary are both sides of the same coin. They are both concerned with the lack of accountability and the character of those elected. In the second quote Henry envisions the Constitution creating a system that does not elect the most virtuous leaders or one that promotes the public good. The people will be so separated from politics that they will stop keeping track, and when it comes time to vote, they will use others as a proxy for political knowledge. The first quote does not address this issue and assumes that even if virtuous when elected, officials will not stay that way due to the nature of their surroundings and the distance they are from their constituency. The factors in the first quote will combine to make a representative who is not only unaware of what the good is for his district, but will cease to care if ever he did. In addition, worst of all, the only ones who will know will be a small sect of knowledgeable voters who will impart whatever knowledge they deem worthy onto those who ask. While the Anti-Federalists’ conception of human nature and their objections to the Constitution are well run, and will be

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discussed throughout this book, less attention has been paid to how their system would encourage individual and public virtue while restraining the passions that lead to vice. Small republics, as has already been discussed, allow the representatives to be closer to the people geographically and in terms of interests. Thus, rather than a representative being chosen from a district that embodies numerous interests which are then forced to fight one another, thus encouraging ambition, a smaller district with similar interests will allow representatives to more accurately represent their district’s interests without forcing the district to divide against itself. In other words, the private interests and the public interests in a small republic are one and the same. Even when there is division within a small republic, the tendency will not be for the majority to suppress the minority as is the tendency in large republics, because in small republics the people are familiar with one another due to their close geographic proximity. It would seem that the Anti-Federalist position rests partly on the assumption that it is more difficult to harm someone you know and live with than someone who you will never know or even see. Even the Anti-Federalists recognize that a single state can have varied interests, and no Anti-Federalist appears seriously to favor shrinking state size, which might lead some to the conclusion that if there is to be a national assembly it must be one in which the ratio of representatives to citizens is such that a representative’s constituents will be of one interest (see Federal Farmer May 2, 1788 in Kaminski and Leffler 1998: 194–5). While the expressed concerns of the Anti-Federalists over the size of the nation and the lack of representation offer some insight into why smallness and closeness promote virtue, it does not complete the picture. Centinel I helps bring the point into focus when he writes, “A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided, in such a government the people are the sovereign and their sense or opinion is the criterion of every public measure” (Centinel I in Siemers 2003: 80). To some degree the Anti-Federalists equate smallness with sameness; thus the perceived public good varies little between people, which means that the public and the private are similar. Support for this position is easily found in other Anti-Federalist writings as well, particularly in Brutus, who writes that the

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closeness of the people to the rulers is necessary for any sense of community to develop, a sense that is necessary for the proper functioning of a deliberative government. Thus, the ties between the representatives and the people diminish as well as the ties among the people as the districts grow in size. The overriding point is that representative government must rest on a foundation of deliberation and fellowship. That is, one cannot be compelled to look out for someone else without being forced to subjugate his individual interests to those of the greater good, thus sacrificing individual liberty, but bonds of fellowship and deliberation allow for one to align his individual interests with those of others in the community without sacrificing individual liberty or the public good. They [the Anti-Federalists] were far more likely than their antagonists to refer to government and society as “natural.” Civic virtue was a central concern of their political argument, and they were zealous to defend true opinion and small states as the foundations of civic education (McWilliams 1980: 92). The point above made by McWilliams and the Anti-Federalists was not a new observation, since we saw Aristotle make a similar point in the Politics. Moreover, experience shows that a very populous city can rarely, if ever, be well governed. … To the size of states there is a limit, as there is to things, plants, animals, implements; for none of these retain their natural power when they are too large or too small, but they either wholly lose their nature, or are spoiled (Politics 1325a4). In small states there is a sense of connection and fellowship that is conducive to the republican spirit but is absent in large states. Large states promote competition and domination through acting on one’s self-interest, while small states promote deliberation. The Anti-Federalists continuously argue the point that in a large republic, the governed would develop animosity toward the governors (Brutus October 18, 1787). So while the governed are working against each other, since they would have different interests in a large republic, they will eventually become jealous of,

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and develop animosity toward, the governors as well. Thus society grows and becomes atomized; competition between groups and individuals increases so that the only way to succeed is through direct competition—which requires acting on ambition, greed, and jealousy—in which winning benefits the victor, with little concern for the public good. The public good is possible, but it is simply a by-product of one’s individual pursuits. Furthermore, the public good is no longer the good in the sense that virtue is good, but is only good in the sense that it provides a service that can be consumed by the public. “Such communities [‘old communities’] should be rooted in the people’s affections. They require an ordered life and a rough equality, protecting community against the conflicts engendered by luxury, competition, and anxiety” (McWilliams 1980: 92). We saw that Publius’ answer to this problem is that it will not become a problem due to institutional restraints; he also argued that only those who are virtuous would have an interest in politics. For the Anti-Federalists, institutional constraints are not enough. They believe that the only way to make sure people are adequately represented is by tying both the people and the government to one another, and the only way to ensure the bond is through size and proximity. From the Anti-Federalists’ point of view, the Constitution overlooked the differences that existed between local communities, and the differences between local communities and the national government. In addition, knowledge of the local community was thought essential for proper governance, especially governance that seeks the public good. Therefore, from the Anti-Federalists’ perspective, the only way to ensure that the government can know and be relied upon to strive for the public good is through small communities. Since every part of the nation is different from one another, a nation cannot be homogeneous, and therefore cannot be properly represented; thus the public good can never be achieved except in local communities or in extreme circumstances, which forces the local interests to secure themselves as national interests. These points are nowhere more concisely or eloquently written than by Cato: [b]ut whoever seriously considers the immense extent of territory comprehended within the limits of the United States, together with its variety of climates, productions, and commerce, the

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differences of extent, and number of inhabitants in all; the dissimilitude of interest, morals and policies, in almost everyone, will receive it as an intuitive truth, that a consolidated republican form of government therein, can never form a perfect union, establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to you and your posterity, for to these objects it must be directed: this unkindred legislature therefore, composed of interests opposite and dissimilar in nature, will in its exercise, emphatically be, like a house divided against itself (Storing 1981a, Vol. II: 110).

Chapter Two

Context and themes While the general themes of the debate are becoming clear it is worth considering at this point why a constitution was being written in the first place so that we can better understand the particular arguments which follow. Thus we need to take a step back and review what preceded the ratification debate. When America declared its independence it wrote a constitution, the Articles of Confederation, which was the governing document during the Revolutionary War. Apparently, there were some problems with this document. The basic argument of all those who opposed the Articles was that it was weak. The central government had almost no power and the states could not be forced to do anything they did not want to do. If the states didn’t want to contribute to a national effort they didn’t have to; they didn’t even have to pay back debts. There was almost nothing the central government could make them do. Without any coordinating power the new nation seemed to be falling apart. The states couldn’t coordinate their efforts for a national purpose. The risk, then, was that they could not deal with all the problems they were facing. Not only was there domestic discord, but there were threats from abroad as well. Philadelphia physician Benjamin Rush worried that the states and the people were about to “degenerate into savages or devour each other like beasts of prey.” George Washington adopted a more measured tone when he wrote, “From the high ground we stood upon, the plan path which invited our footsteps, to be so fallen! So lost! It is really mortifying.”

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Yet, these worries may have been overstated, since there was a general sense of opportunity, and in the 1780s there was the greatest population growth of any decade in American history. All the worries about paying back debts and collecting taxes could have been overstated as well. It is difficult to collect data from the period and know whether things were that bad. One state seems to think not. Rhode Island refused to send any delegates to the Philadelphia Convention; they were just fine under the existing system. One New York Anti-Federalist under the name the Federal Farmer, who was most likely Richard Henry Lee or Melancton Smith, writing on October 8, 1787—published almost three weeks before the first Federalist Paper appeared—denied that the Articles of Confederation were failing and objected to the claim that even if a stronger government was needed it was not an urgent issue. If we remain cool and temperate, we are in no immediate danger of any commotions; we are in a state of perfect peace, and in no danger of invasions; the state governments are in the full exercise of their powers; and our governments answer all present exigencies … and whether we adopt a change, three or nine months hence, can make but little odds with the private circumstances of individuals; their happiness and prosperity, after all, depend principally upon their own exertions (Ketcham 1993: 258). However, in this case, perception was reality. The dominant perception was that the Articles of Confederation were failing and something needed to be done. So something was done. In 1785 commissioners from Maryland and Virginia met at George Washington’s mansion to discuss improvements that could be made to the Articles of Confederation. Their interests were commercial as they looked for ways to improve the navigation of the Potomac and Pocomoke Rivers. Both states agreed to the compact. Informed by this experience, James Madison, who had been present at the Mount Vernon Conference, was authorized along with six other commissions by Virginia to call other states to another conference, this one with the more explicit goal of discussing changes that could be made to the Articles of Confederation, again with the objective of producing a plan to better regulate commerce among the states. They were to meet in Annapolis in 1786.



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Nine states appointed delegates to the Annapolis Convention. Connecticut did not send delegates, since it was worried that the convention would undermine congress and set a precedent for other moves to overturn the Articles of Confederation. Maryland, South Carolina, and Georgia rejected the Convention on similar grounds. The authority of the Convention was further weakened by the fact that four of the states who had appointed commissioners—New Hampshire, Massachusetts, Rhode Island, and North Carolina— failed to show up. Five states were present: New Jersey, New York, Pennsylvania, Delaware, and Virginia. Because so few states showed up, those present at the Convention thought it would be a bad idea to move forward. So, at Hamilton’s urging, they sent a proposal to Congress and to the states to call for another convention in Philadelphia at which time they would discuss other revisions to the Articles. This was a daring move considering that they couldn’t even get a quorum at this convention, yet they thought another convention with even broader discretion would be supported. Surprisingly it was. What happened in Philadelphia was not what anyone expected. With a narrow grant of power to revise the Articles of Confederation the Philadelphia Convention scrapped it and wrote a new constitution. The challenge would be to convince the rest of the nation that this was a good thing, despite its dubious legal beginnings.

Objections to the Convention and its Constitution Before there was a debate over whether the states should ratify the new Constitution drafted in Philadelphia there were those who objected to the Convention itself. Patrick Henry, former colonial governor of Virginia and one of this nation’s greatest patriots who famously demanded “Give me liberty, or Give me Death,” was an outspoken opponent of the convention and its product. He was asked to go to Philadelphia as part of the Virginia Delegation but refused to do so, as he “smelt a rat in Philadelphia, tending toward the monarchy.” Henry, like other opponents, feared that a new, more centralized regime would return the country back to a form of monarchy, a form of government which they had just fought to escape.

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Henry’s objection to the constitutional Convention was particularly worrisome for Madison, who knew that whatever came out of Philadelphia would be put to a vote in the states, and with Henry’s opposition in Virginia—which was also Madison’s home state—the success of the new Constitution would depend upon Madison’s ability to overcome Henry’s objections. In a letter to George Washington, Madison wrote, I hear from Richmond with much concern that Mr. Henry has positively declined his mission to Philadelphia. Besides the loss of his services in that theatre, there is danger I fear that this step has proceeded from a wish to leave his conduct unfettered on another theatre where the result of the convention will receive its destiny from his omnipotence (DeRose 2011: 132). Others began lodging their objections after the Convention released its constitution to the state legislatures. On legalistic grounds, John Quincy Adams, our future sixth president and son of our second president, opposed the new document. Under the Articles of Confederation, section thirteen, all states had to unanimously agree to any amendment to the Articles. But the seventh article of the Constitution only required that nine out of 13 states had to agree to its adoption for it to take effect. Thus, the new constitution violated existing law. “But to crown the whole the 7th article, is an open and bare-faced violation of the most sacred engagements which can be formed by human beings. It violates the Confederation, the 13th article of which I wish you would turn to,” to which he concludes that if we adopt a constitution that respects no law that has come before, there is perhaps no limit to what it can do in the name of expediency. Even at the Convention there were those who disagreed about the purpose and scope of their authority. William Paterson from New Jersey, and author of the rejected New Jersey Plan, offered these thoughts: The Convention he said was formed in pursuance of an Act of Congs. That this act was recited in several of the Commissions, particularly that of Massts. which he required to be read: That the amendment of the confederacy was the object of all the laws and commissions on the subject; that the articles



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of the confederation were therefore the proper basis of all the proceedings of the Convention. We ought to keep within its limits, or we should be charged by our constituents with usurpation that the people of America were sharpsighted and not to be deceived. But the Commissions under which we acted were not only the measure of our power. They denoted also the sentiments of the States on the subject of our deliberation. The idea of a nation Govt. as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. … We must follow the people; the people will not follow us (Farrand 1911: 177). With these words it has been shown that opposition was not just outside the walls of Independence Hall (at the time the State House) but there was also dissension among the ranks. One additional objection, of which there are many that have not been discussed here, is that the Framers wanted the Constitution to be adopted by the states without amendment or revision. In Virginia, Richard Henry Lee suggested that this was similar to presenting a hungry man with 50 dishes and forcing him to eat all or none. But those who wanted to see the Constitution ratified presented practical and theoretical arguments for their request. First, if each state were allowed to make its own changes then a second convention would have to be called to bring all the recommendations together, incorporate them into the text, then send the revised text back to the states. The shear logistics of such an enterprise were prohibitive. Second, if the constitution could be altered by Congress or a legislature then it was no more than an act of a legislature and therefore on a par with all other laws. A constitution needed to have greater stature. Madison, in speaking to the Continental Congress, said: that as the Act of the Convention, when altered would instantly become the mere act of Congress, and must be proposed by them, and of course be addressed to the Legislatures, not conventions of the States, and require the ratification of thirteen instead of nine States, and as the unaltered act would go forth to the States directly from the Convention under the auspices of that body.

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Madison was asking the congress not only to adopt the new constitution but to do so in a new way, a way that departed from the legal strictures of the Articles of Confederation. Under the Articles of Confederation the assembled Congress had to agree to an amendment and then submit it to the states for universal approval. According to Article VII of the Constitution the Congress of the states under the Articles of Confederation would have no official role; rather, “The Ratification of the Conventions of the nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Try to put yourself in the position of the Anti-Federalists. Here was a country that was facing serious trouble under the current constitution, so a convention was given a grant of power to revise the existing constitution that would then be submitted to the states for approval. Instead, the Convention went beyond its scope and wrote a new constitution. And rather than asking that the new constitution be ratified according to the means provided by the Articles of Confederation, the Federalists asked for a new system of ratification altogether. How would you react if a secret convention convened and produced a new constitution that needed to be approved through some new, arbitrary system? Would you approve of it?

Reason for The Federalist Papers Given the objections to the Convention and the constitution it produced, ratifying the Constitution was anything but guaranteed, particularly in New York where supporters of the Constitution, Federalists, were outnumbered 46 to 19 at the state-ratifying Convention. At the time the Convention in New York had convened eight states that had already assembled conventions and voted in favor of ratification: Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, and South Carolina, while New Hampshire and Virginia were holding conventions that overlapped with New York’s. Even though there was strong opposition to the new Constitution in New York, there was good reason to be optimistic about its ratification. First, it would take only nine of 13 states to put it into



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effect in those states that did ratify it which would mean any state that did not ratify beyond the ninth state would be left out of the new government until it did ratify the constitution. Because eight states had already ratified before New York, and with Virginia and New Hampshire each looking as if they would ratify, New York did not have much of a choice but to ratify unless it wanted to be its own nation or join forces with North Carolina and Rhode Island to form a three-state confederacy. Second, New York would benefit economically from a stronger union. While upstate New York was rustic with an economy based upon farming, hunting, and horse breeding, New York City and the surrounding ports were centers of exchange. If New York were to join the Union it would see its economic interests promoted domestically and abroad by becoming the nation’s leading exchange center. However, this also meant that there was a regional divide within the state. Those in the upstate areas were opposed and those in the City were in favor. The ratification controversy in New York mirrored disputes that had long existed in New York politics. The Federalists were the party of the “commercial and professional classes of New York City,” who because of background and interests had much in common with the large landholders of the state. By comparison, the Anti-Federalists—the party of Governor [George] Clinton— tended to be made up of small farmers whose loyalties were radical or popular Whig in character (Eubanks 1989: 310). But New York also knew that the new nation would not be able to exist without New York. New York was a powerful economic center and without it the new nation would presumably fail. So New York could perhaps bargain its way into the Union by asking for modifications that other states were not permitted to ask for. The Federalists knew these risks and therefore knew they had to act. Alexander Hamilton, a New Yorker and Federalist, embarked on a public relations campaign to build support for the Constitution. Originally written as newspaper articles, the intended purpose of the papers was to provide an argument for the ratification of the Constitution; to persuade the people of New York to adopt the new document. The first paper appeared in the Independent Journal on October 27, 1787, just over a month after the delegates

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in Philadelphia completed their task and returned to their homes. The last paper was published in the same daily on August 16, 1788. But, by August 16, 11 states, including New York, had already ratified the new Constitution which means that the last paper was not necessary for the stated purpose of gaining public sentiment for the new Constitution in New York. In fact, New York became the eleventh state to ratify the constitution on July 26, 1788 which was before #84 or #85 had been published in the popular press. Hamilton also arranged for the papers to be published in book form, with the first 36 appearing in Volume I in March 1788 and the last papers in the second volume which was published in May 1788. Oddly, the second volume included the final eight essays which had not yet been published in the popular press. We must raise a curious eye with regard to the publication history. Because if the intended goal was to get New York to ratify the document then there did not seem to be much need for the final two papers—nor a two-volume compilation. In fact, New York recognized that it had to ratify the Constitution once New Hampshire became the ninth state to sign, since there was no point to being a single state on its own. Mr. Chancellor Livingston observed, that it would not, perhaps, be altogether impertinent to remind the committee, that, since the intelligence of yesterday, it had become evident that the circumstances of the country were generally altered, and the ground of the present debate changed. The Confederation, he said, was now dissolved. The question before the committee was now a question of policy and expediency. He presumed the convention would consider the situation of their country. He supposed, however, that some might contemplate disunion without pain. They might flatter themselves that some of the Southern States would form a league with us; but he could not look without horror at the dangers to which any such confederacy would expose the state of New York. This left only one thing to do: ratify the Constitution. So, with a vote of 30 to 27, on July 26, 1788 the New York Convention approved the plan. “We, the members of the Convention of this state, have deliberated and maturely consider the Constitution proposed for the United States.”



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The publication history of the papers is quite telling. Publius decided to keep writing when the project had achieved its ostensible goal. This should tell the informed reader that Publius was up to something beyond shaping public opinion at a single point in time. Publius was writing a political treatise. He was embarking on justifying what good constitutional government entailed and why it was important. Because he wrote with such an objective the text has proven illuminating, not just for constitutional scholars in America, but for those interested in politics more generally. Good books are those that provide relevant insight into the most permanent questions facing us, questions that remain pertinent and unsettled for centuries. The Federalist wants to know what is good government and whether it can be purposefully brought about. Publius knew that he was embarking on an endeavor that was uniquely American but would have universal implications. “Happy will it be for ourselves, and most honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind” (#36: 220). Because of the importance of his question, and the boldness and clarity of his answers, Publius has written a good book, one that has endured for over 200 years and promises to endure even longer.

Did The Federalist Papers really matter? Thomas Jefferson certainly held The Federalist Papers in high esteem. He proclaimed that The Federalist Papers were “the best commentary on the principles of government ever was written.” When writing to Madison in 1825, to try and convince his young protégé to help him develop a reading list for the law school at the University of Virginia, Jefferson ranked The Federalist Papers as the second most important text on American government behind the Declaration of Independence. According to James Madison, The Federalist Papers should not be read by those seeking to understand the true meaning of the Constitution. He referred interested parties to the minutes of the state ratification debates as it was in these debates that the Constitution’s meaning was given a unique interpretation by those who would approve it, the rationale being that what those who

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ratified understood it as saying is what the Constitution really says. Madison was worried that The Federalist Papers could be used to cut off free-thinking by recognizing The Federalist Papers if it came to be viewed as an orthodox text. The publication of the papers in serial form ran alongside the New York ratification debate taking place in the Special Convention. The Convention would decide on the Constitution’s fate, not the people of New York who were the intended audience of the papers. Though pressure from the people could be brought upon those at the Convention, the effect of the papers on the Convention would not have been direct. In addition, the papers were not widely published. The initial publication of the papers reached a few thousand people in New York City. Communication in those days was slow, so it would not be easy to get information from one paper to another. Retweeting hadn’t been invented. That said, some of the papers were circulated beyond the small, confined space of their original publication area. A few papers were republished by newspapers in Virginia, papers 2 to 19 were reprinted weekly in the Pennsylvania Gazette, seven were reprinted in Boston, and just over a dozen appeared in newspapers in upstate New York. However, most of the time the writings of Publius outside of New York City were eclipsed by local authors writing about the ratification (Furtwangler 1984). When this low circulation rate is combined with the low literacy rate of the time (Alexander Hamilton pegged the literacy rate somewhere between 33 and 50 per cent of the adult population), it is hard to believe that very many people were aware of the arguments of The Federalist Papers or who was making them. Leaving the previous question unresolved, it is important to recognize that even if Publius’ writings were not the decisive force in ratification, they still left behind an important legacy. The Federalist Papers were not simply writing for their time, the themes they touched on and the ideas they developed spoke to eternal questions.

Chapter Three

Reading The Federalist Papers The Federalist Papers is a large text that can be disorderly. It does follow an order, but it can go off track at times, which can make the order appear unclear and leave the reader trying in vain to tie up loose ends. Its shear size makes a reader’s guide such as this helpful, and its structure makes such a guide almost necessary. So to simplify things for the new reader it is important to give a brief account of its structural make-up. The Federalist Papers has its own unique structure that is provided in the first paper and faithfully followed, mostly, throughout. The first 14 papers deal with the utility of the union as it relates to political prosperity, papers 15–22 discuss the insufficiencies of the Articles of Confederation, #23–36 discuss why a more energetic government was needed to correct these deficiencies, then the final papers discuss how the proposed Constitution conforms to the true principles of republicanism while taking time to discuss the republican and federal character of the new government, the power vested in the new government, separation of powers, and each branch separately. However, there are five themes that run throughout the papers regardless of specific topic: human nature, separation of powers/checks and balances, republicanism, union, and federalism.

Human nature Significant space will be given over to Publius’ view of human nature throughout this book. This reflects its importance as a

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means of understanding Publius’ political theory. If the reader can develop a sound understanding of Publius’ view of human nature the reader is on their way to developing a strong understanding of what Publius believed was essential for effective government and why. Motivating all of Publius’ arguments is a view of human nature that makes government, and constitutional government in particular, necessary. In #6 Publius writes that “men are ambitious, vindictive, and rapacious … that momentary passions, and immediate interests, have a more active imperious control over human conduct than general or remote considerations of policy, utility, or justice” (#6: 48 and 51). This rather dim view of human nature leads Publius to ask, “what is government itself but the greatest of all reflections on 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” (#51: 319). The simple restatement of this sentiment is that people cannot be trusted to govern themselves which makes government necessary. But not just any government will do; only one that will stymie the efforts of those seeking to use power to their advantage and the disadvantage of others will be sufficient. According to Publius, the primary failure of previous republics was their inability to characterize human nature correctly, which then prohibited them from creating the institutions that would use human nature in such a way that would lead to a successful governing system. Publius argues that the superiority of the Constitution to those from ancient republics is based upon the “great improvements” in modern times, achieved in the “science of politics” (#9). For Publius, human nature is dominated by passion, which is to imply that vice is more dominant than virtue, and passion is more dominant than reason, and though there is no willingness to link virtue to reason, he clearly links vice to passion. According to Publius, men are “ambitious, vindictive, and rapacious” (#6). In #55 Publius recognizes that “passion never fails to wrest the scepter from reason,” which makes necessary a government structure that can promote reasonable solutions in the face of competing passions (#55: 340). But even before Publius makes this comment he answers the question of why government is necessary by saying, “[b]ecause the passions of men will not conform to the

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dictates of reason and justice, without constraint” (#15: 106). That is, we have governments because men cannot be trusted on their own to act well. Hamilton, one-third of Publius, makes his most explicit comments on human nature and its effects at the Philadelphia Convention. As Robert Yates reports, Hamilton said at the Philadelphia Convention, Take mankind in general, they are vicious. … Take mankind as they are, and what are they governed by? Their passions. There may be in every government a few choice spirits, who may act from more worthy motives. One great error is that we suppose mankind more honest than they are. Our prevailing passions are ambition and interest; it will ever be the duty of a wise government to avail itself of these passions, in order to make them subservient to the public good (A. Hamilton in Farrand 1911, Vol. I: 388–9). In a letter to James A. Bayard written after the Constitution had been ratified, Hamilton remarks again on man’s nature. Nothing is more fallacious than to expect to produce any valuable or permanent result in political projects by relying merely on the reason of men. Men are rather reasoning than reasonable animals, for the most part governed by the impulse of passion … the strongest and most active passion of the human heart, vanity (A. Hamilton in Lodge 1885–86: 597). And according Publius it was precisely this understanding of human nature that escaped the ancients and the misunderstanding of the ancients left no option but for their governments to be destroyed by the manifestations of the vices in human nature, most notably through factions, since they did not adequately account for this component of human nature (#9, 10, 15, 51, and 72). While human nature could be destructive, Hamilton saw an opportunity to create a system based on a proper understanding of human nature that would lead to a stable government. In a critique of the ancients, and in promoting his vision of how the Constitution would work, Hamilton says, “the difference between the true politician and the political-empyric is this: the latter

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will … attempt to travel out of human nature and introduce institutions and projects for which man is not fitted. … The true politician … takes human nature as he finds it, a compound of good and ill qualities. … With this view of human nature he will not attempt to warp or distort it from its natural direction” (A. Hamilton in Morris 1957: 313–14). Good government does not try to remake man but only takes man as he is and structures itself accordingly. Such a view gave rise to the institutional structure of the new government codified in the new Constitution, particularly its idea of separated powers. Men’s passions can be made useful by pitting passion against passion in an institutionalized and controlled format. When discussing the re-eligibility of the President, Publius shows how different passions can counteract each other in order to create good policy (#72).

Separation of powers and checks and balances Throughout Publius’ discussion of how the separation of powers will work and how each branch will be tied to the promotion of the public good, he relies on man’s pride, ambition, vanity, and other vices that usually animate men who take office. And it is through controlling these vices that the public good will be elevated above individual self-interest. At the Convention Hamilton makes this point when he says, “In every community where industry in encouraged, there will be a division of it into a few and the many. Hence, separate interests will arise. … Give all power to the many, they will oppress the few. Give all power to the few they will oppress the many. Both, therefore, ought to have the power, that each may defend itself against the other” (A. Hamilton in Farrand 1911, Vol. I: 371). So it was not enough to separate the branches from one another but each branch had to have the capacity to defend itself against the others to serve as a check and a balance. For Publius, the real challenge in forming a stable government that inhibits tyranny was in finding the proper balance. In each branch of government and within each interest in society there is a vice, and these vices can be balanced by the vices of the competing branches and interests. The balancing in government occurs then,

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because the powers of the executive, legislative, and judging are separated just as Montesquieu had proposed. An example of how this system works, and why, may be found in Publius’ comments in #66. Of course, the bulk of The Federalist Papers describes how the new system would work, so making reference to all relevant citations with regard to separation of powers/checks and balances would be a little tedious, but a few references are in order. There are institutional mechanisms within the legislature which allow it to check the actions of the executive, “The legislature, with a discretionary power over the salary and emoluments of the chief magistrate, could render him obsequious to their will, as they might think proper to make him” (#73: 439; see also #63 for how the House and Senate balance one another). And the power of the purse also checks the judiciary (#79). Similarly, the judiciary (#78) and the executive (#66) have institutionalized mechanisms to check the legislature, and each other (#81). The men—and at that time they were all men—in each branch were expected to have passions that could overwhelm reason, and the institutions were structured in such a way that the passions within each branch would counteract the passions of the other branches, much in the same way #51 says that ambition is made to counteract ambition. Simply put: No one person or body should hold all the power. But this does not simply mean that the legislative power has to be checked by the other branches, as the other branches have to have their power checked, but that certain powers should remain separated among the branches. The legislature can be the only body that crafts laws, the executive carries them out, and the judiciary decides on them. No one body does it all. A discussion of how all of this is supposed to work, and the importance of an independent judiciary, is taken up in greater detail throughout this book and in The Federalist Papers. Just keep in mind that republican government cannot thrive without the separation of powers. Federalists saw the judiciary as the repository of conscience, the executive as the seat of energy and unity, and the Senate as the home of wisdom and stability. The Federalists’ goal was to strengthen these elements of government and to limit the self-interested passion of popular assemblies, such as state governments and the House of Representatives. This propensity

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for regarding reason, energy, and unity as virtuous was precisely Hamilton’s position in the public debate and at the ratification convention. It was essentially the argument of those who possessed aristocratic sensibilities, and were fearful of the fickleness of popular will (Eubanks 1989: 330). The argument Eubanks puts forth above draws a clear connection between Publius’ economic and political vision which makes a brief discussion on the former appropriate. Furthermore, a brief discussion of Publius’ understanding of commerce and its relation to politics will afford further insight into Publius’ understanding of human nature, and the political structure he advocates for it is a political structure that enables men to pursue their material interests which is best capable of funneling men’s vices into productive capacities. Notice how, in this description of how commerce works, the principles found in his argument for the separation of powers/checks and balances is repeated. The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate all the channels of industry and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer—all orders of men look forward with eager expectation and growing alacrity to this pleasing reward of their toils (#12: 86). Thus the argument would be developed; a strong union would allow for a stronger commercial society, one that could best protect the merchants, tradesmen, and financiers from internal strife and attacks from abroad. Commerce keeps men busy and productive, which is why the pursuit of profit and material interests through commerce can turn man’s private vices into public virtues. Thomas Pangle correctly assesses Publius’ position on commerce. Pangle says, “The praise Publius bestows on the commercial spirit,

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and his willingness to truncate virtue in the name of that spirit, enable us to understand …‘repose and confidence of mind.’ … The repose envisioned is not one of leisure, and it is not to be confined to some elite” (Pangle 1986: 596). The virtue of a commercial republic, then, is its ability to cultivate the traits of those professions which generate wealth, such as merchants, whose efforts to achieve profit growth will naturally benefit the craftsmen and manufacturers. And of course the benefits are reciprocal (Pangle 1986: 596; see also #35 and #55). The argument made in #12, and supported by Pangle’s analysis, is that those characteristics that create commercial success are the same characteristics that are needed to promote the common good through government. Therefore, both commerce and government work in concert within Publius’ philosophy as both are based on a conception of human nature that would make any government reliant on the virtue of man impossible at worst and unstable at best. While Publius does not negate the possibility or the desirability of having an enlightened statesman at the helm, he doubts its reality, and he certainly does not want to create a government that relies on religion, morals, or enlightened statesmen to provide for the public good (#10). Therefore, effective constitutional government—which is the only type of government deserving the name constitutional government—does not let a single person, party, or interest rule. It requires the sustained and aggregate interests of all involved to get things done. It is only when the majority must consult the minority that the minority cannot be threatened by majority whim. Absent institutional checks on those in charge, the institutions of government may be used to the advantage of some to the disadvantage of others. Constitutional government seeks to minimize this effect by dividing power among different branches and levels of government. When power is dispersed among self-interested actors it is difficult to consolidate, since no actor would willingly act to his own disadvantage.

Republicanism According to Judith Shklar’s reading of The Federalist Papers, “The new political science could [according to Publius], properly

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applied, build a self-correcting system of government that would not suffer any of the infirmities that had afflicted the older systems” (Shklar 1977: 1290). Publius is almost irreverent when he talks about the attempts at governance that have gone before (#9). When Publius discusses earlier theorists who advocated republics, he gives examples of the republics of which these men were advocates in order to show the deficiencies in earlier theories and attempts at republican government (#6 and #37). In addition, to make the point clear that the early errors were correctable errors, Publius, in the famous #10, writes “The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot be too much admired” (#10: 72). Publius continues this quote when he writes that the Philadelphia Constitution surpasses even other American attempts at constitutional government. Publius, obviously dissatisfied with all that went before, set out to defend a new form of government. The separation of powers/ checks and balances, an independent judiciary, and federalism were all part of this new science of politics as each was crafted in a new and unique way. But the truly revolutionary aspect of Publius’ argument was with regard to republicanism. Prior to Publius, it was a well-established truth that only small, heterogeneous nations could sustain republican government. Anti-Federalists objected to the Constitution on such grounds. “We dissent, first, because it is the opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government; but united in the management of their general and foreign concerns” (Ketcham 1993: 242). Publius famously flipped this on its head, most notably in #9 and #10. By extending the sphere, or enlarging the orbit, the number of interests clamoring for government favor would be multiplied, and each, acting selfinterestedly, would battle the other interests for position. This battle, which can be guaranteed if we believe Publius’ view of human nature, would play on man’s vices and prevent any single interest from gaining control. The more interests, the more battles, and thus the more difficult it would be for anyone to win. Republicanism also demands that the people play an active role in politics, since it is only through active participation that

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their wishes will be known and their representatives will not seek to take advantage of the people. The people place a check on the government, but the government acts as a filter for the whim and caprice of the people in order to prevent majority rule from turning into mob rule. “It is reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” (#49: 312). Because people can be led astray by their passions they must have leaders through which their passions can be filtered, leaders who understand the difference between the common good and policies which are simply, and perhaps temporarily, popular. “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust” (#57: 349). Because politicians cannot be trusted enough to be left alone, there are institutional checks on their power and avenues by which the people can hold them accountable. Republicanism is a symbiotic relationship between the institutions, the people, and politicians, where all work in concert and neither is supreme over the other.

Union Another common thread that runs throughout The Federalist Papers is the need for union. In the earliest papers we see the need for union take center stage. A unified America will provide for a stronger national defense, greater domestic tranquility as the states will be less likely to fight among themselves, and greater economic gains as the states will work together for economic advantage within a union whereas they would work against each other if they were allowed to remain separate entities. These are well-known defenses of union that will be discussed in more detail later in this book. But another argument for union, one that is less frequently expressed, is that Publius conceived of the American people as a single people, not as people from different states. In #2 Publius writes,

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Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence (#2: 32). Likewise, in #14, Publius writes, “kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights” (#14: 99). This indicates not only a single people, but a single people who fought together for their sacred rights. The sacred rights were those denied by England, rights that undergird government by the consent of the people. And because it is a single people, a constitution that recognizes the consent of all people, as an American people, needs to be adopted. Thus the Preamble of the Constitution begins, “We the people of the United States, in order to preserve a more perfect union … do ordain and establish this Constitution for the United States of America.” It is the people’s consent that bestows legitimacy upon this government, since the “fabric of American empire ought to rest on the solid basis of the consent of the people” (#22: 148). Moreover, though, a constitution is needed, since without it even a united people who share so much will eventually become unraveled. “It is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides” (#5: 47). This is presumably related to the observation in #10 that neither religious nor moral motives are enough to constrain people. These observations have obvious links to Publius’ view of human nature. This is why Publius adopts a separation of powers/checks and balances, to curb the defects of republican government, as “the legislative department” if left unchecked “is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex” (#48: 306). But this is precisely the risk that the Anti-Federalists saw with a strong union; too much power would be concentrated in the hands of a national power. To combat this point Publius would apply

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the separation of powers/checks and balances model vertically, and not just horizontally, into what we now recognize as a federal system.

Federalism By creating a national government Publius advocated a major transfer of power from the states to the national level. The states, and Anti-Federalists, did not want to relinquish this power for fear that it would be used against them. Too much power in the hands of a few was dangerous. To address this objection to the new Constitution, and to develop his argument for federalism, Publius goes to Montesquieu, with who he elsewhere disagreed about the proper scale of republics, to demonstrate that he understands the risk in centralizing power. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (#47: 298). The states, nine of 13 of whom would have to consent to the new Constitution for it to replace the existing Articles of Confederation, were worried about losing their autonomy to the national government. At the root of many of the concerns of the Anti-Federalists, and thus Publius’ responses, dealt with the amount of power the states would have. The states worried that a national government would strip states of their right to govern themselves. The states thought of themselves as a bulwark against national tyranny. If the national government was going to take action against the citizens, it would be the states that would stop them. Rightly or wrongly, proponents of states’ rights argued that because the state governments were closest to the people, they knew best what the people wanted and were in a better position to provide it. With the experience of imperial rule still fresh in their memories, no one wanted to trade in one centralized political power for another. Anti-Federalist Brutus—most probably the New York judge Robert Yates who was a delegate to the Philadelphia Convention but refused to sign the Constitution drafted there—gave voice to these concerns in the first of his 16 essays on October 8, 1787.

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This government is to possess absolute and uncontrollable power … for the last clause of section 8th, article 1st, it is declared “that Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the forgoing powers. …” And by the 6th article, it is declared “that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or shall be made, under the authority of the United States, shall be the supreme law of the land. …” It appears from these articles that there is no need of any intervention of the state governments (Ketcham 1993: 272). This is where federalism, and Publius’ construction of it, steps in. Federalism is a theory of divided power where there is a centralized political body and subnational governing units; in the American case these are states, counties, and cities. The subnational governing units have autonomy over certain policy matters and the national government has autonomy over others. Sometimes their jurisdictional boundaries overlap and the dispute of autonomy must be settled through the courts or in Congress. In Publius’ own words we read, In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national (#39: 242–3). The fear of centralized government was shared, to a lesser degree, by those who drafted the Constitution. This is why they provided such federalism-preserving mechanisms as Senators to be selected by state legislatures, the direct election of House members, Article V, and specific limitations on the national government’s powers. In #32 Publius writes, “But as the plan of the convention aims only at partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States” (#32: 194). This position would go from implied to

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codified with the ratification of the 10th Amendment in the First Congress. Thus, in reading this guide to each paper individually, as well as in your own reading of the original text, you should pay particular attention to how four broad themes permeate throughout and how they are interrelated. Of course there are other themes which are important and some that also run throughout, but these are the primary principles, and, as Publius understood, “in disquisitions of every kind there are certain primary truths, or first principles, upon which all subsequent reasoning must depend,” and it is in these four themes that all other reasoning depends (#31). If you can figure out how each of these themes works to justify union and the new constitution, you will have a clear understanding of Publius’ justification of the Constitution and greater insight into his political theory. One of the central normative concerns that gets relatively short rift in commentaries on the Constitution and the ratification debates is what effect the political theory underlying Publius’ argument has on the character of the people. While the proponents of constitutional ratification were silent on the effect the Philadelphia Constitution would have on individual character, we can see that the system created in Philadelphia, and argued for by Publius, would encourage and reward morally dubious behavior. By analyzing Publius’ theory of human nature and the new political science founded on that theory of human nature, the question is opened as to whether an American citizen can be both a good person and a good citizen. Is the only way the American regime can work is if the passions which the balance of powers is based upon are reinforced? If reason and passion come to work in concert, and private vices are then public vices rather than public virtues, can the American political system sustain itself? Or, must our theory of government be revised to allow a good person to be a good citizen? Publius argues that the system created by the United States Constitution is far superior to any system of government that has existed before and it is the advances of the science of politics that has allowed the founders to isolate and correct the deficiencies of past republics. Publius sees no reason to adapt the lessons of history; instead he seeks a clean break. Publius does not rely on the virtue of the rulers or the people; instead he seeks to replace the need for virtue with institutional design. The institutional

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design proposed by Publius is heavily influenced by Montesquieu’s separation of powers design, and attributes the future success of the system to the fact that the system created by Montesquieu rests on the predictable part of man’s character: his base passions. Not only does this system channel the negative effects of passion, vice, and faction into something that can create the public good, but it reinforces these private vices by pitting one against the other. That is, the only way to win is to act more strongly on your vice than the opponent acts on theirs. Vice is not overcome by morality, virtue, or enlightened statesmen, but vice is combated with vice, thus reinforcing the positive attributes of vice in the government structure (#10). In the end the Federalists in New York won by a vote of 30 to 27 on July 26, 1788. When George Washington visited New York four years earlier in 1784 he proclaimed it the “seat of Empire.” “For with New York’s ratification, in which Americans discovered a modern language for their politics, a new nation was finally created. And in New York, the Empire State, a republican empire was conceived” (Eubanks 1989: 334).

Introduction and discussion of the utility of union (Papers 1 to 14) In Federalist #1 Publius lays out the general plan for the next 84 papers. He did not know the precise number at the time he was writing #1, but he did know that more would be forthcoming and he knew the positions he would take and the issues the papers would address. In the opening paragraph Publius lets his readers know that they have the opportunity to change the course of political history and redefine it for future generations. Publius writes that it is for the people of New York, as well as the U.S.A. more generally, to decide “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force” (#1: 27). The advantage of such a system is that it will be stable, predictable, and serve the interests of the people better than any system that had gone before. The

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implication is that any country that achieved success in the past did so, not by choice but by accident. This Constitution, the one conceived and written in Philadelphia just over a month before this first paper was published, would be the first Constitution to create a good government intentionally. This proclamation sets the stage for a rhetorical device that will become commonplace over the next 84 papers. Publius will use historical examples to compare the new Constitution to those systems of the past and the current state constitutions. Many times Publius will compare them favorably to the proposed plan, but in all instances he will show where and how the new Constitution is superior. Publius seems to be saying: If you think that was good, you ain’t seen nothing yet. Publius, in #1, moves on to suggest that there are objectors to the plan but they object to it not because it conflicts with the public good, but because they are motivated by their own particular private interests that they think will be threatened by the new document. Publius is setting up his opponents as figures motivated by greed and self-interest rather than the public good. Two types of men make up this category: local politicians who do not want to cede power to the national government since it might diminish their status, and speculators who are looking to earn a profit in the uncertainty following the War of Independence. Because the readers of the Federalist Papers are already familiar with the debate, Publius has to get out early to explain why all the object­ions they have heard should be dismissed. Publius is positioning himself as the cool-headed statesman whose views are unclouded by ambition, avarice, or jealousy. Publius urges his readers to look objectively at the new document so that they can, as he has, see that “the vigor of government is essential to the security of liberty” (#1: 29). There are several argumentative styles and rhetorical strategies that are repeated in these papers throughout and one of those is to to quell the fears and objections of those who fear the new document centralizes power and therefore turns too much power over to the government. Publius’ argument is that a centralized regime with the features the new Constitution provides will help control men’s negative passions which cannot be done in a less centralized regime, since the coordinating force will be absent in a confederation. Anti-Federalist John DeWitt disagreed:

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We are told by some people, that adopting this New Government, we are to become everything in a moment. … Let us not deceive ourselves; the only excellency of any government is in the exact proportion to the administration of it:—Idleness and luxury will be as much a bane as ever; our passions will be equally at war with us then as now; and if we have men among us trying with all their ability to undermine our present Constitution [the Articles of Confederation], these very persons will direct their force to sap the vitals of the new one (Ketcham 1993: 193). DeWitt’s fear is understandable given the colonists’ history with England. Therefore Publius must show that there is a moderate ideal between too much power and not enough. The terms to be used by Publius will be “energy” or “vigor,” but rarely “power.” In Publius’ view there is no difference between an impotent government and anarchy and the positive gains that come from a government come only when the government is well equipped to govern. Publius must also show how the institutions of the Constitution will constrain man’s base desires and prevent the new country from sliding into despotism. It is true that John Jay, Alexander Hamilton, and James Madison were well positioned to promote their interests if the new Constitution was ratified. John Jay became the first Supreme Court Chief Justice, Hamilton went on to become the first Secretary of the Treasury under George Washington, and Madison went on to become a leader in the new House of Representatives and eventually the fourth President of the United States. Thus it is possible to read their arguments with some cynicism, particularly Publius’ remarks about the opponents of the new Constitution who are self-interested actors but that its Federalist supporters care nothing for their own gain. And those readers prone to cynicism will only have their doubts of Publius’ sincerity confirmed when they read, “My motives must remain within the depository of my own breast” (#1: 30). He goes on to counter that his arguments will remain open for all to see and judge, but this is all we can know of any political commentator. We cannot know anyone’s motives and in some ways they may not matter. One of the many beauties of the ratification debate was that it was held in public for all to see and judge. Because of this, each generation has been able

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to revisit the debate and decide for itself about those arguments just as the first generation did. Publius ends with a topical outline for the remaining papers, an outline that this book follows and was discussed earlier. The first challenge, which will be a recurring theme throughout all the papers, begins in #2 with Publius writing how a union is better equipped than a loose confederation to resist foreign force and influence. Papers 2 to 5 set out to demonstrate how a union is better equipped to deal with threats from foreign nations. Paper 2 immediately cedes that when forming a government the people must turn over some of their power to the government. The difficulty is in determining the right amount. To begin his argument Publius argues that until lately, America has always been a single land with a single people that were endowed by Providence with certain gifts. This is a sentiment not just expressed in #2, but also expressed by Alexander Hamilton writing on his own in 1775 that “the sacred rights of mankind are not to be rummaged for among old parchments. … They were written, as with a sunbeam, in the whole volume of human nature by the hand of Divinity itself.” But, in #2, Publius does gloss over the complexity of the historical record in arguing that the colonies had always been one cohesive whole. Publius ignores the fact that each of the colonies was set up at a different time and by a different charter, which is perhaps why Publius chooses to appeal to Providence rather than to the historical record. This then justifies his belief in a singular inherited tradition. Rhetorically this is the best way to start the subject. At a time when the states understood themselves as separate states, as it was given to each state individually to decide its future with regard to the Constitution, it is first necessary for Publius to make the people feel united, as though it was their destiny. The one historical reference Publius makes in #2 is with regard to the First Continental Congress, which met in Philadelphia in 1774 in response to the Intolerable Acts passed by the British Parliament to punish the colonists for their acts at the Boston Tea Party. But this instance undermines Publius’ argument, since only 12 of the 13 colonies attended, with Georgia having sent no delegates. This hardly supports the contention that America always acted as a united whole, especially when considering that the colonies fought against England, and governed themselves

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afterward, as a loose confederation. However, it would be misguided to think Publius has manipulated historical events, since it is true that “It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union” (#2: 35). Publius is correct in concluding that when a common threat faced the colonies they acted as a union, since it was only as a union that they could defend themselves against the threat. The logical extension of this, which Publius argues for in #3 to 5, is that a union is better equipped to deal with foreign threats. Paper 3 takes the position that safety is the primary reason why government is formed, and in these papers it will be shown how a union will provide peace and tranquility in general and how it will, in the particular instance of resisting foreign forces, provide for safety. It is a rather unobjectionable point that a United States will provide a more substantial impediment to foreign forces than any single state could do on its own. New York on its own could not have defeated the British; it required the cooperation between all 13 colonies to throw off the shackles of tyranny. But the question lingers as to why a union is necessary for national defense if there is no immediate threat. Publius rebuts this implicit objection by citing the just causes of war and how a union prevents those causes from either gaining momentum or being just. There are two just causes for war: the violation of treaties and the retaliation against direct violence. Publius takes the pragmatic position that when there are 13 separate colonies making treaties the likelihood of violating one of those treaties increases. It is more expedient and safe to give a single national power the authority to make and enforce treaties. And because the pool from which to draw diplomats and officials is increased when there is a union, thus anticipating #10, the principals in charge of making and enforcing treaties will be a more enlightened group. Think of this in the simplest terms. If we admit that a good ambassador or statesman is rare, say, one out of every 1,000, then as the total population grows so too does the number of available good ambassadors and statesman so long as the ratio remains about the same. So if a state has 100,000 citizens there will be 100 qualified statesmen; but if the union contains one million, the number of qualified statesmen increases tenfold to 1,000. These are not historically accurate

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figures, nor figures drawn from our text, but they clearly and faithfully articulate the position of Publius. Publius adds an additional benefit not enumerated among the advantages at the beginning of the paper. Publius argues that officials representing a national union will be less likely to take matters personally and thus be guided by reason rather than emotion. Those representing their states have a pride that is unmatched at the national level. This pride can cloud judgment and make war more likely. Paper 4 takes a less nuanced approach than the previous paper in that it openly argues that anything less than a unified government will invite foreign aggression because a loose confederacy appears weak and allows other nations to think it fit for conquering. This is a bold statement given that a loose confederacy just defeated the British to win independence, but the point is intuitive. A weak nation will be a more likely target of foreign conquest than a strong nation, and a unified nation will be stronger militarily than a disunited nation. The underlying assumption in Publius’ foreign policy is that nations interact in the same way individuals interact. Individuals are naturally quarrelsome, nations are run by people; thus nations are naturally quarrelsome. Just like men, it “is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it” (#4: 40). And, while intuitive, Publius continues in #5 to expand on the point that “weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union” (#5: 45). Whereas #4 made the argument that safety can be found in unity, #5 shows why a confederacy cannot be unified. By drawing on Great Britain as his example, Publius argues that a confederacy cannot stay a single nation and will be divided along sectional lines. It may be hard for those of us who have always lived in an age of easy travel and communication to understand how sectionalism can become a problem. At the time Publius was writing, most people stayed fairly close to home from birth to death, and did not come into contact with people from other areas of the nation on a regular basis; where you were from largely defined who you were politically at this time. The South, and Southerners, promoted farming and the agrarian way of life as that was the life they led.

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Those in the North tended to be mercantilists rather than agrarian. The different means through which each side viewed economic matters was only exacerbated by the sectional component of the dispute. Publius was right to be worried that sectionalism would weaken the nation. Sectionalism was a defining aspect of American politics until the end of the Civil War. Paper 6 represents a change of focus in which Publius now focuses on the domestic dangers that threaten to destroy the country if a union is not in place. The specific topic spans two essays, but the risk associated with a loose confederacy permeates many of the essays that follow, including #8 to 10. Publius fears that as the number of sovereign states living in close proximity to one another increases, so too does the likelihood of war. There are numerous causes of war that Publius lists, but the reason for each of the causes springs from human nature, and humans are by nature “ambitious, vindictive, and rapacious” (#6: 48). To bolster his point he cites examples from Greek antiquity and the Holy Roman Empire to show how wars have been waged because of man’s vices. But then Publius brings the example closer to home by a reference to Shays’ Rebellion in which he says, “If Shays had not been a desperate debtor, it is much to be doubted whether Massachusetts would have been plunged into a civil war” (#6: 50). In his first of two papers Anti-Federalist John DeWitt writes in opposition to this power. DeWitt acknowledges that a centralized regime can preserve domestic tranquility by using military power to quell domestic uprisings but warns that this is a risk too great for him to take: “That should an insurrection or an invasion, however small, take place, in Georgia, the extremity of the Continent, it is highly expedient they should have the power of suspending the writ of Habeas Corpus in Massachusetts, and as long as they shall judge the public safety requires it” (Ketcham 1993: 198). DeWitt worries that the new government will result in a police state because the states are not given enough power to thwart potentially tyrannous acts by the national government. Publius makes the case that in a united commercial republic people will work toward the common good, as each person’s interest is inseparably linked to others’. He once again goes back to examples from Europe and America to show where previous commercial republics had gone wrong in this respect. He finds that their primary fault is in their lack of unity. The argument had been,

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up to this point in history, that commercial republics would not go to war because of their commercial interests. War was costly and republics would not want to incur the costs, particularly if it hurt the business of their merchants. Publius shows just how wrong this supposition was: The genius of republics, say they, is pacific; the spirit of commerce has a tendency to soften the manners of men … Sparta, Athens, Rome, and Carthage, were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same time. Sparta was little better than a well regulated camp; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction … Venice, in latter times, figured more than once in wars of ambition. … The provinces of Holland, till they were overwhelmed in debts and taxes, too a leading and conspicuous part in the wars of Europe (#6: 50–2). However, what Publius did not address in this paper, and what readers should look for in later papers, is a clear statement as to why “ambitious, vindictive, and rapacious” men will cease to be so in the type of government Publius seeks, or how in such a government these vices can be transformed into virtues. Publius seems to downplay people’s ability to circumvent the rules within the system he defends. He seems to downplay a person’s ability to act on his ambitions and vindictiveness in a way that is not conducive to the public good, or to behave irrationally in some other way. Publius suggests that all governments have failed to achieve the level of success that this Constitution guarantees. What Publius does not answer is what gives him certainty that he can succeed where all others have failed, all others who fancied themselves as wise and as informed as he? We are justified in wondering if Publius is not just a little too full of himself. Publius moves on in #7 to argue the insufficiency of the Articles of Confederation to handle potential disputes over the vast tract of unsettled land in the western part of the continent. There is no denying that owing to its lack of coordinating force the Articles of Confederation could not handle these matters expeditiously,

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and because of man’s nature there can be little doubt that disputes will arise. The point made in the first half of the paper is salient, practical, and logically consistent. In the middle third of the paper Publius addresses the potential disputes over commerce if the states were left to make their own policies with regard to commerce. Publius argues that if states are left to control the flow of goods into and out of their borders there would be as many different laws as there would be states. And states seeking to improve their condition might make a policy that is damaging to another state. This could produce disputes which cannot be resolved under the Articles of Confederation. Article I, Section 8 of the Constitution turns the power to regulate commerce between the states and with foreign nations over to Congress. It also guarantees that all duties, imposts, and excises will be uniform throughout the nation. This will not stop all disputes arising over how commerce is regulated, but it will make the system more manageable than what had existed under the Articles of Confederation. The idea that the national government will provide a uniform set of rules and provide equal treatment under the law is a theme that runs to the end of #7. Paper 7 does not end before it discusses the issue of debts. One of the most poignant criticisms of the Articles of Confederation is that it had no means to force states to pay back debts, either to other states or to foreign nations. The size of state debts varied, but after the war there was a large debt that needed to be paid back. Not doing so would threaten the solvency and viability of the new nation. Article VI, Clause 1 gives validity to all debts and engagements that existed prior to the ratification of the Constitution. This meant, when joined with the powers of Congress enumerated in Article I, that the new nation would have the power to settle all outstanding debts and obligations. This would strengthen the nation both domestically and internationally. Paper 8 is a reply to the clever critics who point out that if the new nation will guarantee security against external invasions and internal insurrections, there will necessarily be a standing army at the ready, and one strong enough to trample the states themselves. The worries of the critics are valid, and up until this point Publius has only added to this worry. Up until now, Publius has made the argument that the first objective of government is to provide for the safety of its citizens. If safety is the first order

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of business, a concerned observer is right to ask through what means safety is to be achieved and what might be sacrificed in the pursuit of safety. Sadly, the response of Publius is rather feeble, as he concludes that the people are the ultimate check and the military will not be used against the people because the people will not allow it and the military will be endeared to them. Publius does not take seriously the charge that the army can be used against its own people at this point. Moreover, he falls back on the theme made prominent in the papers that have so far preceded #8: the necessity of these things is so great that they are worth the risk, since without them destruction would be assured. “The means of revenue … the arts of industry, and the science of finance … concurring with the habits of nations, have produced an entire revolution in the system of war” (#8: 63). This new course of war is referred to later on in #30 when he writes, “in the modern system of war … nations the most wealthy are obliged to have recourse to large loans” (#30: 187). But James Madison, once the Constitution is ratified, proposes amendments to the Constitution that address this question directly. The Second Amendment gives citizens the right to bear arms and the states the ability to raise their own militia, and the Third Amendment prohibits the quartering of soldiers without the consent of the owner of the house. One of the primary objections of the Anti-Federalists was that it did not have a Bill of Rights. While Publius was unwilling to acquiesce to the Anti-Federalists during the ratification debate, it is clear that James Madison in particular was sensitive and responsive to their concerns and made adjustments to the Constitution once ratified, such as adding a Bill of Rights, that included protections against military rule. Madison, in seeking to gain support for the ratification of the Constitution, agreed with many Anti-Federalists to propose a Bill of Rights once ratified. In fact, North Carolina would not join the Union until a Bill of Rights had been proposed. So, on June 28, 1789, in the First Congress, Madison delivered. This day, Mr. Speaker, is the day assigned for taking into consideration the subject of amendments to the Constitution. As I considered myself bound in honor and in duty to do what I have done on this subject, I shall proceed to bring the amendments before you as soon as possible, and advocate them until they

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shall be finally adopted or rejected by a constitutional majority of this House (DeRose 2011: 256). Not only does #9 precede #10 numerically, but it anticipates the argument of the most famous paper, and perhaps the most famous political writing in American history behind only the Constitution and the Declaration of Independence. If one were to pay close enough attention one will find the core of the entire Federalist Papers’ philosophy within #10. What makes #9 so important is not that it merely anticipates #10, but that it too explicates a philosophy consistent with #10 but develops it in a slightly different way. Thus within each of these we can find the brilliance of the Constitution, and if we are so inclined, find the weak spots in the underlying principles. One cannot read past the first two sentences of #9 without being swept away by the rhetorical flourish, the bold proclamations, and the clear view of what righteous government should do. Publius, in the first sentence, proclaims that it is a firm union that will be “a barrier against domestic faction and insurrection” (#9: 66). A bold claim to be sure, but one which echoes what has been said in the previous papers. What sets the second sentence apart in its boldness is that it refers to Greece and Rome as nothing more than petty republics. One need not be an expert in antiquity or the progression of Western civilization to understand that these “petty republics” did nothing less than lay the groundwork for Western philosophy, mathematics, science, and even politics. For Publius to denounce them as he does is a way of reinforcing the claim that what the U.S. Constitution creates is nothing short of new and revolutionary. It assimilates the lessons of history and philosophy into a new sort of regime which the world up until this point has never known. So whatever one may think of the greatness of Rome, or the brilliance of Athens and Sparta, Publius tells us to disregard them when it comes to politics and listen instead to those who met in Philadelphia. New York Anti-Federalist Brutus, who adopted the pen name from the Roman Brutus who slew Cesar in the name of liberty and republican government, saw things quite differently from Publius. While Publius made no apologies for taking what was good from previous governments and then devising an entirely new system and theory, Brutus thought such a break was presumptuous, conceited,

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and foolhardy. With no proof that what Publius proposes can succeed, Brutus says that it cannot succeed. History furnishes no examples of a free republic, anything like the extent of the United States. The Grecian Republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world (Ketcham 1993: 276). This is a clash of worldviews on display. One side, Publius, thinks that breaking from the past is possible and beneficial; that the U.S.A. can re-create what has always occurred by learning from its mistakes. Brutus thinks that if it has not been done it cannot be done, that breaking with the past should be limited in manner and extent. As if a conflict of this magnitude were not enough for a single paper, before #9 is over Publius writes that these governments, as all up until this point, have been kept in “perpetual vibration between the extremes of tyranny and anarchy” (#9: 66). There is in no other place in these papers that so clearly expresses the challenge of good government than in #9. Too much freedom will lead to anarchy; too much government intervention will lead to tyranny. What good government tries to do is find equilibrium, a balance, between the two extremes. No government, according to Publius, has been able to establish a system that can reliably produce this balance. When other governments have found it, it was by accident and chance (#1), but this new government can guarantee it. If now and then intervals of felicity open themselves to view [in these former republics], we behold them with a mixture of regret arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. … Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors (#9: 66–7).

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If we have not thought these papers bold before, perhaps now we should. In the third paragraph Publius refers to his enterprise as following the new science of politics in which the principles of politics are now well understood. The principle to be followed in a republican government is the separation of powers. It will not be until later that we receive a full treatment of how the separation of powers will work, but here it is introduced as a way of correcting some of the inherent deficiencies of republican government; deficiencies which commonly lead to its destruction. To this list though Publius adds one more: enlarging the orbit. In #10 this will be referred to as “extending the sphere.” Enlarging the orbit in a republican system is difficult because the larger the republic gets the more likely it is to succumb to internal corruption. The Anti-Federalists have pointed this out, and have cited Montesquieu as the authority on which they rest their prediction that a nation the size of the proposed United States would be too large to function as a republic. The Anti-Federalist Agrippa warned that “on an average one thousand miles in length, and eight hundred in breadth, and containing six million of white inhabitants all reduced to the same standard of morals, of habits, and of laws, is, in itself an absurdity, and contrary to the whole experience of mankind.” But, Publius addresses the Anti-Federalists by correcting their reading of Montesquieu and citing additional passages which seem to suggest that Montesquieu would actually support the United States system of government because a “Confederate Republic … [is]… A republic of this kind, able to withstand an external force, may support itself without any internal corruptions” (#9: 69 citing Montesquieu). This is an abridged argument in favor of the system defended by Publius. The Constitution will create a government that integrates the best of the big with the best of the small and will leave out the disadvantages of each. To prevent any interpretation that would equate a confederate republic with a consolidated union—which is one that would essentially be one large republic and therefore would not possess the ability to stop internal corruptions—Publius seems to soften his position in the previous papers about the advantages of union and just how strong it should be: The definition of a confederate republic seems simply to be ‘an assemblage of societies,’ or an association of two or more

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states into one state. … So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy (#9: 70–1). A confederacy, in the way he frames it here, is more closely linked to the modern notion of federalism. A confederacy is, in modern parlance, precisely what the U.S.A. is moving away from with the new Constitution. However, it is not entirely clear where the line is to be drawn in either federalism or a confederacy, and #9 does not go far in making matters clear. The essay that receives the most attention from historians, political scientists, and legal scholars is #10. The reason it has received so much attention is because it not only embodies the central elements of the Federalist argument, but it wrestles with the central question of free government: How do we maintain liberty while preventing anarchy? Or, how do we maintain order while avoiding tyranny? These questions seem to put order and liberty at odds and the job of government is to balance the two. The unaltered pursuit of order will lead to a government that strips its citizens of all liberty, and to go the other direction would render the government ineffectual. We do not want anarchy, or ineffectual government, since government creates an ordered environment— which means one in which I am safe—so that I can be at liberty to act on my liberty. Liberty is dependent on order but can also be destroyed by it. Thus, with the stage set, let us see what Publius has to say in #10: “Among the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction” (#10: 71). Factions, despite what modern readers may think, are not political parties. Factions are, in the words of Publius, any group of people who are motivated to do something which is adverse to the rights of certain citizens or to the “permanent and aggregate interests of the community.” A faction can be composed of a minority or a majority of a nation’s citizens. In a representative system of government we do not have to worry about a minority faction since it takes a majority to get something done. Our

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concern is when a faction takes hold of the majority. And because this is the concern, we can eliminate democracy as a desirable form of government, since it provides no check on the majority and, therefore, no way to thwart a factious majority (#10: 76). The only solution is to have a republic. To start in his quest for a solution Publius states that there are two cures for the mischiefs of factions: we can remove its causes or control its effects. Publius quickly dismisses the first option, since there are only two ways to remove the causes of faction: destroy the liberty that gives rise to a diversity of opinions, or give everyone the same opinion. To adopt the first strategy—to eliminate liberty—is a cure worse than the disease and the second of these simply cannot be done. There will always be a diversity of opinion among man because man’s reason is inextricably linked to his self-love, which means that there will be a reciprocal relationship between his opinions and his passions, and his passions will attach themselves to his opinions just as his self-love will find justification in his reason. And, as the Bard might say, there is the rub, “the latent causes of faction are thus sown in the nature of man” (#10: 73). Because men are naturally self-interested actors, they cannot be judges in their own cases, since they will always be biased toward themselves and similar interests. This serves as the basis for the horizontal and vertical separation of powers and the system of checks and balances. We must not give one man or one part of government the power to do too much since it will always act in its own interest, which will then lead it to act against the interests of others when the two diverge. So the trick is to take what we know of human nature and create a system of government that uses its natural inclinations to produce a common good. And government must be the answer because “we well know that neither moral nor religious motives can be relied on as adequate control,” and a clever institutional arrangement must play a major role in that answer because “Enlightened statesmen will not always be at the helm” (#10: 75). This new science of politics, by creating an institutional framework through which human nature passes to reliably produce good results, will not only replace the role morality and religion once served, but it will also make us independent of chance, for only by chance do we get enlightened statesman. Because a majority faction is our primary concern, we can eliminate democracy as a viable solution to the problem because a

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democracy does not provide a check on the majority and therefore no way to thwart a factious majority (#10: 76). The only solution is to have a republic. A republic has two advantages over a democracy: (1) the people are represented by those they elect and therefore do not take part in government themselves; (2) a republic may be extended over a greater sphere and a greater number of citizens than a democracy. The benefit of having representatives is that they act as a filter through which the views of the public are passed. Representatives are not necessarily better people, and the people will not always be able to select the best representative, but to become an elected representative one must have moderate views in order to win more votes than one’s opponent. But this only works in a large republic where one cannot court a small group of people. The larger the republic, the more moderate one’s views must become and the more interests one has to be sensitive to. In a small republic a representative can get by with advancing the interest of a single group; this cannot be done in a large republic. In addition to producing better representatives, a large republic also means that there will be more interests among the populace. And as you increase the number of interests it will be more difficult for a single interest to use government to its advantage. Most interests are factious, so by multiplying interests you multiply factions. Why would we want that? Because factions will be forced to fight with one another for the attention of voters, and the competition filters out the most outlandish ideas and allows only those that can gather support from a large portion of the population to persist. But this is where the logic falters, as Publius discounts the possibility of a faction becoming the majority in a sufficiently large republic. But majorities have bad ideas and history has shown that even in the U.S.A. the majority can make bad laws. The essay’s central challenge is to understand how to thwart a factious majority and in the end it only gives us a majority. It seems redundant to suggest that a different way to achieve a majority is superior than any other way to arrive at the same outcome. Delay is a key component to the system. What separates a republic is that it introduces delay and forces debate. When this is done people will not be reactionary or merely follow the first impulse. They will choose to think about the problem. It seems an unstated assumption in this argument that when you force delay

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you force thought. But if reason and self-love are reciprocal, it is not at all clear how, even after long delay, reason will not be subservient to selfish passions. In this system there is no ultimate or final check. Rather it is a system of constant fluctuation and revision. That is in part the beauty of it. No single interest or faction can become so entrenched that it cannot be dislodged. We can never know for sure when there is a faction in power or when there is a good policy, but the system remains open for all to participate and for debate to occur. This system will not prevent factions from coming to power; it will prevent them from staying there and instituting their agenda. Paper #15 reinforces, through summary, the argument made in #10: Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses for which they would blush in a private capacity (#15: 106). There are several layers to the argument of #10. One was referenced only in passing above, which is property ownership. Some people will have more property than others, or people’s livelihoods will depend upon utilizing property in different ways, which will lead to conflict. The simple answer to this problem is to equalize property. But doing so, as seen above, would produce affects worse than unequal property distribution. This is because the differences among men give rise to disproportionate property ownership. Property must be preserved since doing so is the only way to preserve liberty. To understand this argument entirely, and thus why we all cannot be made equal in property, we need to go deeper into Madison’s understanding of property.

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Madison’s view on property and its relationship to government is uncomplicated: the chief duty of government is to protect property. The similarity to statements made by Locke are startling. Locke writes, “The great and chief end, therefore, of men’s uniting into common-wealths and putting themselves under government, is the preservation of their property” (§124); when compared with Madison’s comments in Federalist #10 and elsewhere, the similarity between the two becomes undeniable, which then reinforces just how influential Locke was on the founding generation as well as the primacy of property rights to our republican government. However, it is still important to review why Madison makes the chief duty of government the preservation of property and the importance of property more generally. To answer these questions it is first necessary to understand Madison’s definition of property. Then, after defining property and the relationship between property and government, I will explore the proper balance between property and equality in Madison’s thought. When read carefully, Madison indicates that the preservation of life, liberty, and property is the key to happiness and safety. “That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety” (Schwartz 1971: 1026). Madison is saying that government is created for the protection of those things that are naturally ours, and in protecting those things we are aided in pursuing and obtaining happiness and safety. The point is obvious: that a threat to one’s life is a threat to his or her safety and happiness. A threat to one’s liberty is a threat to the same, but primarily to happiness. Property is set off from liberty and life, but it is no less important to one’s happiness and safety. While his writings on property are helpful in interpreting this passage, just as instructive is a comment Madison made to Congress illustrating his general economic outlook: I own myself the friend to a very free system of commerce, and hold it as a truth, that commercial shackles are generally unjust, oppressive, and impolitic; it is also a truth, that if industry and labor are left to take their own course, they will generally be directed to those objects which are the most productive, and

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this in a more certain and direct manner than the wisdom of the most enlightened Legislature could point out (Madison 1953: 269). As property is the basis of a free economic order, and a free economic order is a desirable arrangement, then by extension protecting private property is among the government’s highest priorities. But since the government cannot, and should not, be relied upon, the people must retain this power. Before any discussion moves too far along, the terms in the discussion must be clearly defined. For Madison, property has a dual meaning. Madison explicitly tells us how he defines property in an article published on March 29, 1792 for the National Gazette. The first of his definitions is akin to Locke’s given at §32, and the second corresponds to what Locke asks us to infer. This term in its particular application means that dominion which one man claims and exercised over the external things of the world, in exclusion of every other individual. In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves every one else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them (Madison 1999: 515). Madison is not far off from Locke in his conception of property. For Locke, each man possesses his labor and whatever he mixes his labor with becomes his. For Madison, man has property in his material possessions and in himself. Madison does not speak of labor, but skips straight to property without explaining how one gains exclusivity over land or himself. In some sense, Locke’s account is more detailed, but Madison’s account explicitly includes those things that Locke only implies. “He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights” (Madison 1999: 515). Where Locke asks the reader to draw the conclusion that liberty and property are inseparably linked which is why protection of property is the first object of government,

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Madison explicitly states that we have property in those rights that are inalienable. The government cannot take a citizen’s right to free speech anymore than it can take a citizen’s land simply because property is defined as something exclusive over which one person, and one person only, can have dominion. Madison does not tell us how property comes to be; he only describes what it is and that it is of some value to the individual. For both Locke and Madison property indicates exclusivity. My property is that which I have a right to for myself and can prevent others from having. While I cannot prevent others from having a free conscience, I can prevent them from having part of mine, and just as I cannot take another person’s land, they cannot take my land or my hog. Madison’s definition of property includes a bundle of rights that are unalterable, inviolable, and exclusive to the individual. On this account, there is not much separation between Madison and Locke. What is still unclear at this point is what type of property Madison had in mind when drafting what would become the Fifth Amendment or Federalist #10. There are at least two possible ways of answering this question. First, it does not matter which property he was referring to, as material property flows from the free employment of one’s faculties, which is also one’s property. Therefore, while Madison posits two definitions of property, it gives a false sense of duality. The two properties he refers to are, as Locke would have us conclude, inseparably linked. One cannot have security in his conscience without having security in his physical property. Positive laws ought to reflect natural law, which tells us that each individual has property in himself. Positive laws protecting physical property are only valid because they are derived from a natural law which says man has property in his own conscience, and his conscience—or faculties—is what leads to the physical property that is to be protected by positive law. Second, assuming a duality actually exists, Madison was referring to physical property in the Fifth Amendment, as the other type of property was the focus of the First Amendment. But, even if one accepts that there are two separate definitions of property that are unrelated, it is still clear that Madison has an attachment to physical property that is undeniable. Furthermore, in his discussion of the value of physical property, he indicates that the relationship between the two types of property is one of interconnectedness rather than duality.

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If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence will have been anticipated, that such a government is not a pattern for the United States (Madison 1999: 517). Madison argues that a government that violates one’s property, while preserving another, is one that the United States should not become. The key to unlocking the connection between the two types of property lies in this passage when he suggests that the violation of an individual’s opinion will indirectly violate his property in actual possession. The connection between the two types of property will be discussed throughout the remainder of this chapter. The aim here is to set the stage for that discussion by providing the two definitions of property Madison gives in order to shed light on what he meant by property in the Fifth Amendment. In any event, we will see a consistency between Madison, pre-Constitution America, and post-Constitution America in that the value of instrumental rights resides in their ability to protect property and that when considering property seizures; our modern government must overcome an enormous hurdle to justify its taking given the founding generation’s attachment to property. The balance tips in the favor of property and is opposed to seizures—at least historically. “Government is instituted to protect property of every sort; as well as that which lies in the various rights of individuals, as that which the term particularly expresses” (Madison 1999: 515). While how a government best protects property, and what constitutes a protection, are the central questions of #10, it is important to note that the protection of property is why government is instituted. This not only tells us that Madison considers property to be important, but it is the reason government is instituted. Bad government is that government which exercises too much power over individual property, which then leads to insecurity and a loss of liberty (Madison 1999: 515).

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But protecting property, though of paramount importance, is not an easy task, even in representative government. “The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right. The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse” (Madison 1999: 825). Madison made this statement at the Virginia Constitutional Convention on December 2, 1829; this demonstrates his attachment to property rights even after the ratification of the Bill of Rights. This statement makes three interesting contributions. First, it moves the acquisition of property from a right protected by positive law to a natural law, which then places it alongside property of conscience in terms of priority. Second, it draws a link between property acquisition and safety as a social right, which demonstrates that in a properly constructed government rights naturally possessed by the individual become rights granted to the entire society by positive law. Third, Madison admits that to protect these rights the government must have power, for without power it has no authority. However, the power that is required to protect property is sufficient for destroying property, and thus the challenge becomes how to give a government enough energy to serve its purpose without overstepping its bounds. This is the topic visited by Publius throughout The Federalist Papers. John Locke and James Madison recognize that when private property is protected, inequality will result. Different people have different ambitions and capabilities—what Madison refers to in #10 as a “diversity of faculties”—which will result in different levels of property accumulation. For Madison this is problematic because it causes a rise in factions. Madison is not alone in his concern about economic disparity, but he does recognize that to enforce equality of property ownership would be to infringe property rights. As already discussed, Madison recognizes that to deprive men of their property is to rob them of their liberty, and to make men equal in terms of property would require the government to strip them of those things that government was originally formed to protect. The tension that exists between property and the common good in contemporary discussions did not exist at the time of the founding, as it was recognized by that generation that the common good is dependent upon the protection of private property. This point, in

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addition to what has already been said, finds support in Madison’s discussion of property and equality. In some instances Madison is ambiguous in his promotion of property over equality. Since he recognizes the damage factions can do, and he recognizes that factions arise from disproportionate levels of property ownership, which is the result of men being unequal in their faculties, Madison does recognize the need for government to promote some level of equality among its citizens. In a National Gazette article titled “Parties” published on January 23, 1792, Madison writes, “By the silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort” (Madison 1999: 504). This might have the reader suppose that equality is an object of government that warrants some amount of property right infringement. At some point, it could be concluded that even Madison recognized that the public good requires the refusal of property acquisition and accumulation to some despite what he has consistently said to the contrary. However, this would be a false conclusion. If we assume that Madison held similar views to others in the state ratification conventions who argued for an amendment protecting property rights, then, as has been shown, the preservation of the public good is second to the protection of private property. This assumption is justified when one reads carefully what Madison wrote in 1792 as he recommends the promotion of equality with respect to property rights. Even though inequality is damaging to the political order, violating the rights of property would be worse. The ambiguity that seems to exist in Madison’s essay on parties never appears in any of his others writings, which means we may safely conclude that when equality and property come into conflict, the government must decide in favor of property. In his “Property” essay, published only a few months after his “Parties” essay, Madison writes, “Government is instituted to protect property of every sort. … This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own” (Madison 1999: 515 [italics in original]). When it comes to the protection of property rights, the government cannot favor one faction over another, nor is it recommended—or even conceivable—that there be an ideological divide among those in government over the importance of property. There

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has been no evidence to suggest that there were dissenters on the issue of private property protection. While two of the proposed amendments were not ratified, indicating there was some dissension on some issues, property had unanimous support. This is indicated not only by Madison’s full-throated support, but in the House and Senate debates in which no dissenting view was expressed over the eminent domain provision recommended by Madison. In the “Property” essay, Madison argues, “That is not a just government, nor is property secure under it, where the property which a man has in his person of safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest” (Madison 1999: 516). I do not want to paint too sympathetic a picture of Madison and suggest he is making an argument against slavery; rather he is merely restating a point Locke had already made (§§11–13). It may be read that Madison is suggesting that where property is not secure, nothing is secure. This is true, but oversimplified in the fact that the separation between property, safety, and liberty is truly nonexistent. Property— whether conscience or landed—is the realization of liberty. To have property, and thus liberty, one must also have safety. But one cannot be safe without liberty, thus making property vital for safety as well, since it is the ability to realize one’s liberty that places the ultimate check on government. Thus, there is a unity of rights. Madison reiterates this point in the next paragraph of his essay when he writes: That is not a government, nor is property secure under it, where the arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called (Madison 1999: 516). There is no ambiguity in this statement. Moreover, the relationship between the two definitions of property, liberty, and safety is clearly stated. Madison has clearly indicated his attachment to property and why. To deprive one of property is to deprive one of liberty and safety, the preservation of which is the sole purpose of government; thus, a government that infringes one’s property, infringes one’s

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liberty and safety, thus rendering it not a government. But that does not resolve the problem of deciding to what degree equality ought to be sacrificed for property; or how property provides for the public good to a greater degree than equality. Madison understands that property ownership leads to one of the most persistent problems in governance. But as he stated earlier in the essay, you cannot get rid of property, or the source of the inequality of property without first destroying liberty, which he readily admits is a solution that is worse than the problem. Moreover, eliminating factions is impossible, even if we were willing to sacrifice liberty and safety, because “The latent causes of faction are thus sown in the nature of man” (#10: 73). So not only is eliminating faction undesirable, it is impossible, which means the solution lies in controlling factions and not eliminating them (#10: 45). Implicit in his solution is the recognition that property is more valuable than equality, for if it were not, there would be no problem extinguishing the source of faction. Not only is Madison unwilling to sacrifice liberty for equality, but that sacrifice would not result in the reduction of factions. In his critique of democracies, Madison writes, “Theoretic politicians, who have patronized this species of government, have erroneously supposed, that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions and their passions” (#10: 46). Thinking that the pursuit of equality holds the key to solving the ills of government is, in Madison’s words, erroneous. This is why he argues for a republic and not a democracy. The public good is not preserved or achieved by the promotion of equality, rather it is only through the promotion of property—which entails a promotion of safety and liberty. The promotion of equality at the expense of property calls for a restriction of liberty and is therefore a threat to safety. But more than erroneous, the restriction on property rights is wicked, “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union” (#10: 79). Therefore, liberty—and by extension property—ought not to be sacrificed for equality, because the public good is achieved not through equality but through liberty and safety. The promotion of equality at the expense of property threatens the public good.

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For Madison, and for others, there is no trade-off between property, liberty, and safety, since they are interdependent. Sacrificing one would be sacrificing the others. This has been seen in Madison’s comments, as well as in those politicians in the founding era who treated instrumental and intrinsic rights along the same dimension. The phenomenon of splitting economic rights from other rights came after the founding generation passed. The politicization of these rights, by placing one set of rights with one political party and the other set with the other, represents a profound misunderstanding of these rights and a break with the founding, thereby increasing the risk of losing these rights. Papers 11 to 14 continue with the theme of #2 to 10, which is to show the utility of union. “The importance of Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the object” (#11: 79). Paper 11 demonstrates how with a strong union the U.S.A. can have a strong navy. A strong navy improves commercial relations with other nations as the other nations will be less likely to take advantage of the U.S.A. commercially if the U.S.A. can defend itself militarily. A strong navy will be able to protect merchant ships and a strong navy will act as a unifying force within the U.S.A., as each state will be asked to make its own unique contribution to a common cause. All of these factors also help improve government revenue streams. In #11 we also see a reference back to #5, and in anticipation of #22, that the common ties that bind and make Americans a single, unified people must be reinforced by the institutions of government; otherwise those bonds will break. Under a vigorous national government, the natural strength and resources of the country, directed to the common interest, would baffle all the combinations of European jealousy to restrain growth. This situation would even take away the motive of such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, a flourishing marine would then be the inevitable offspring of moral and physical necessity. We might defy the little arts of little politicians to control or vary the irresistible and unchangeable course of nature (#11: 82).

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Paper 11 reflects Publius’ knowledge of his audience perhaps more than any of the other papers. Publius was writing in New York City which means the readers would have been from that area as well. People living in New York City at that time, as now, made their living as merchants and in commercial activities. Therefore, showing how this new government could help them financially was a persuasive tactic. This argument would never have worked if they were writing in upstate New York, South Carolina, or some other region where the economy was based around a more agrarian lifestyle. New York City needed the help of a unified powerful nation to become a force in world markets. A unified government meant that when merchants and manufacturers needed help opening up new markets for processed goods they would have the backing of a strong navy and military. In addition, this meant that there would be a free flow of goods from agrarian states to manufacturing states which would have benefitted both the North and the South as long as no policies were implemented by the national government to advantage one more than the other. Paper 12 builds on #11 by arguing that “[t]he prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares” (#12: 86). In other words, the best thing a country can do for itself and its people is to make money through commerce. With increased commerce comes a greater tax base. And in addition to having a greater tax base, government revenue will be enhanced by having a central government in place because with enough power given to it, the central government can collect the necessary taxes and make sure that the tax laws are being implemented fairly so that no state or region can set itself at odds with the national interest by passing protective policies of its own. Along with helping the government increase its revenue, the new government will help those in commerce and agriculture increase their own revenues as well. By providing a strong central government, not only will the efforts of the states be coordinated and protected (#11), but the economy of the nation will be improved by facilitating cooperation between states by eliminating trade barriers between states and implementing uniform rules for

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interstate commerce (#11 to 13). In #13 Publius shows how the new government will be able to protect trade routes and provide safe passage more efficiently, and thus more cheaply, than the 13 colonies could do on their own. A united nation can take advantage of an economy of scale. Rather than one state being in charge of protecting and regulating all of its trade relations the nation as a whole can divide up the labor which will reduce redundancies and conflict of interests. Paper 14 ends this section of papers by summarizing the main arguments from #11 to 13 and referencing the arguments made in #10 to rebut the claims made by the Constitution’s detractors that a nation of this size is unsustainable if it is to remain in accordance with republican principles. Paper 14 summarizes most of the arguments up until this point for why a strong union is needed. Paper 14 combines the discursive argumentation and rhetorical flourishes better than perhaps any of the other papers. The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. … It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region. … Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great, respectable, and flourishing empire. … No, my countrymen, shut your ears against this unhallowed language (#14: 95–9). Rhetorically, #14 is the appropriate paper for a summary of the preceding papers, as #15 begins a new section in which it will be shown by Publius why the Articles of Confederation fail to provide what is needed—as stipulated in #2 to 10—for the new nation to flourish.

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Critiques of the present confederacy (Papers 15 to 22) Papers 15 to 22 make the implied argument of #2 to 14 explicit. In arguing for a stronger union, Publius was arguing against the current Confederation. The benefits of the union were benefits over the Confederacy, since the Confederacy lacked the necessary components of a union that provide it with its utility. Paper 15 raises the stakes of the game by showing that the need for the new Constitution is immediate, as the nation was on its deathbed under the Articles. “We may indeed with propriety be said to have reached almost the stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience” (#15: 101). Publius does not dismiss the possibility of gaining a unified force under the Articles, but that unity could only be gained through coercive force. Under the current system, that is, the only way to coordinate efforts was through coercion, which is an undesirable method that Publius does not support. “This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war” (#16: 108). The logic behind this account is clear. If a number of states banded together for a specific cause the only means to gain cooperation from dissenting states would be through force. For instance, if the Confederation was in debt to a foreign nation and seven states had paid back their share of the debt and the remaining six refused, the only recourse the seven faithful states would have would be to pay back the remaining share of the debt or use their military force to compel the default states to pay. Or, if a state like Rhode Island would not agree to a measure that needed unanimity, the remaining 12 states could use military force to bring Rhode Island into compliance. A nation with a strong national government would have means other than physical coercion to resolve such disputes. Paper 17 then takes up the fears of those who think the new central regime will tend toward tyranny, as it will be too powerful. Publius dismisses this quickly, saying that a state, with its seat of

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power being in closer geographic proximity to the citizens, is more likely to be tyrannical which is one reason why a new national power is needed, to keep the states from turning on their citizens. Publius ignores the argument that when the seat of government is in closer proximity to the people the people can keep a closer eye on what the government is doing and are better able to exercise their civic duty. Publius also ignores the obvious counter-argument that the British King and Parliament were quite far from the colonies and were quite despotic as well. But Publius is out to win the argument and convince voters first, not address each argument exhaustively, particularly those to which he lacks a sufficient rebuttal. But there is a little pragmatism, and perhaps pessimism in this part of the debate. Both sides see tyranny, one from the local level and the other from the national level. Both sides have evidence from the historical record and from logic to support their claims. This portion of the dispute exposes the possibility that no matter what kind of government you create, and regardless of where the seat of power resides, despotism is possible. The only true safeguard is an attentive and engaged citizenry, a safeguard that Publius relies on but tempers with a complex web of institutional arrangements. The conclusion of #17 brings Publius to a comparative analysis of other confederations to show that all confederacies, not just the American version, are doomed to failure. The analysis takes up the better part of #18 to 20 with each example going to prove that a confederation can only be held together by force, remain ineffectual, or denigrate into anarchy. Paper 18 takes up the Grecian republics under the Amphicytonic Council, #19 the seven German tribes that united only to throw off invaders and remained weak in Publius’ time, and #20 discusses the poor performance of Belgium and the United Netherlands. Of the Greek city-states, Publius writes, The members retained the character of independent and sovereign states, and had equal votes in the federal council. … In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes … [however]. … It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party.

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Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage (#18: 118–19). Then, in #19, Publius addresses Switzerland which is by any measure a success. Publius does not dispute its success as a confederacy but acknowledges it is a unique example that offers no lesson to the U.S.A. except to prove that such a loose confederacy cannot exist in the U.S.A. as it does not have the peculiar geography and history of Switzerland. And in #20, published on December 11, 1787, Publius again discusses what seems to be another aberration from the claim that loose confederacies cannot endure. Switzerland had been around for close to 500 years at the time The Federalist Papers were being written, and is still in existence today, and the United Netherlands, the subject of #20, existed from 1581 to 1795 and in a later iteration still exists today in a confederate form. Publius points out that it is only because it is surrounded by enemies that the United Netherlands has remained united and without the immediate threat of external invasions it would have fallen to domestic dissension. “These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy” (#20: 133). The implication, drawing back on #16, is that unless the domestic government uses force, or there is some immediate threat, the union as currently formed will dissolve. And it is a miserable state to be in when one is only motivated by fear or force. The new Constitution was to provide a method to remain unified by consent and mutual need but necessarily fear. But one must ask whether union, and all those things that it can provide better than a decentralized system, is really what should be considered good. If we consider virtue, or community, or justice good then Publius has yet to provide an account of how union is good. If one considers stability, military, and economic might good then Publius has provided an adequate account. But it is up to the reader to decide what is good, since Publius does not address the topic directly.

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In #21 to 22 the strategy changes from addressing the deficiencies of confederacies in general to addressing deficiencies of the present confederacy. Paper 21 begins by discussing how under the present confederacy the central government lacks the means to coordinate the states or enforce regulations upon the states. Similarly, it also lacks the ability to intervene within states that begin to act against the best interests of their citizens. While not stated explicitly, it appears that Publius is here referring to Article IV, Section 4 as that section which corrects for this deficiency. In the U.S. Constitution Article IV, Section 4 reads, “The United States shall guarantee to every State in the Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” The concern with Article IV, Section 4 from the Anti-Federalist perspective is that it allows the national government to intervene in state matters when it thinks the state is acting against republican principles. To the skeptic, this might mean that the national government could regulate elections, terms of office, or structure of the legislature according to its interpretation of republican government. A republican government is not an objectively knowable fact; instead, it is a principle that is open to debate. However, in the system of government designed by the Constitution, the concern is that the debate will not be open, as the national government will always have the definitive say. It does not help ease the fears of skeptics that the defense of Article IV, Section 4 follows the argument that one of the deficiencies of the current confederacy is that “[t]he next most palpable defect of the subsisting Confederation, is the total want of sanction to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode” (#21: 134). In other words, one of the advantages of the new Constitution is that it allows the national government to punish the state governments, perhaps using the authority granted in Article IV, Section 4. But #21 does not stop there. Paper 21 argues why the new regime will provide a more equitable means of raising revenue. Under the Articles of Confederation the states were to give a certain amount of money to the central government to fulfill a quota. This put certain states at a disadvantage given the regressive

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nature of the quota system. What Publius proposes is that under the new system, the means of raising revenue, by allowing the central government to levy its own taxes, will be a more equitable system. This is also an important provision for the survival of the union, since without a reliable revenue stream the new government would quickly collapse. Paper 22 revisits the topic of regulating commerce and gives reasons why that power ought to be turned over to the central authority. The primary reason for placing this power into the hands of a central authority is that it will make commerce with foreign nations easier, since foreign nations will deal with a single entity that will guarantee the agreements made between itself and the foreign nations and this power in the hands of the central government will prevent states from blocking trade among the states or imposing trade barriers that create an unfair trade advantage for one state, region, or bloc of states. Such practices would threaten the survival of the union. Similarly, it is important for the new government to have the ability to raise an army. Doing so will give it the ability to quell insurrection, both foreign and domestic. Paper 22 also takes up an issue that almost tore the Constitutional Convention apart, and that was the issue of representation. Under the Articles of Confederation each state was represented equally in the Continental Congress. Small states like New Jersey liked this arrangement as it put them on equal footing with large states like Virginia. But we can understand why a large state would think it deserved a greater voice in Congress, because it had more people. During the Constitution Convention the Virginia Plan was drafted by James Madison and proposed by Edmund Randolph, both of Virginia, and would have created a two-house legislature, or bicameral legislature, where each state would be represented in proportion to the number of citizens it had. So the larger states would have more representatives in each chamber and the smaller states would be outnumbered in each chamber. The New Jersey Plan was proposed by William Paterson of New Jersey, which is why it is also known as the Paterson Plan, as an alternative to the Virginia Plan. The New Jersey Plan would have given each state one vote in a unicameral legislature. Paterson defended his position by arguing that it was consistent with what the convention had been authorized to do, and any other plan would be a radical

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departure from their intended purpose. Neither the New Jersey nor the Virginia Plan was accepted, as what was eventually adopted was the Connecticut Compromise which was proposed by Roger Sherman and Oliver Ellsworth, each of the Connecticut delegation to the Convention. The Compromise integrated aspects of both the Virginia and the New Jersey Plan. From the Virginia Plan it incorporated a bicameral legislature, but instead of giving both houses proportional representation, only the House of Representatives would have the states represented based upon population with the larger states having more seats than the states with smaller populations. In the Senate each state would be represented by the same number of senators (two), which was a way to appease the small states and integrate a component of the New Jersey Plan. So #22 tries to explain to the people of New York why the method of representation in the House and Senate is better than under the Articles of Confederation. The primary thrust of his argument is that it does not permit the small states to hold the large states hostage, nor does it allow the large states to trample on the interests of the small states. So each type of state, large and small, will have equal—which is not to say identical or the same—representation in Congress.

The need for a more energetic government (Papers 23 to 36) The next 14 papers, #23 to 36, set out to show why “a government at least equally energetic as the one proposed” is necessary for achieving the goals of government laid out in previous the 22 papers—the most central of which is the preservation of the Union. Publius divides the task into three parts: in the first, Publius will have to show what objects are to be provided for by a federal government, the amount of power necessary for achieving those objects, and the “persons upon whom that power ought to operate” (#23: 148). The purposes discussed up until this point are recounted in the third paragraph of #23, and the necessary authorities which have also been discussed, if not only implied, in the first 22 papers are again itemized in the fourth paragraph of #23. But Publius is bolder in his proclamation of the powers

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the central government should have when he argues that “These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them … for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed” (#23: 149). This proclamation seems counter to the principle of limited authority and checks and balances discussed in #9, #10, and #14. These earlier papers were designed to address the concerns of those who objected to the authority the new constitution would give to the national government. For some reason, #23 abandons this line of argument and proclaims a need for unrestrained national power for preserving the Union. If there was ever a doubt that the ratification debates were a deliberate dialogue between the two sides we only need to read Brutus’ sixth paper where he quotes from Federalist Paper #23. There are other favourers of this system, who admit, that the power of the Congress under it, with respect to revenue, will exist without limitation, and contend, that so it ought to be. It is said [quoting #23] “The power to raise armies, to build and equip fleets, and to provide for their support, ought to exist without limitation, because it is impossible to forsee, or to define, the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them” (Ketcham 1993: 285). There can be no doubt, in light of this exchange and many others like it, that the ratification debate was an open public discourse over the virtues and vices of the new governing document. To have this debate played out in public helped clarify for the people and their representatives what was at stake if the new Constitution was adopted. No one ratified the document with his eyes closed. One of the primary requirements of a nation, if it is to provide safety to its citizens, is a strong military. But this is a point, specifically a standing army, that concerned citizens who opposed the new Constitution, as it did not provide protection against the damage that could be done by a standing army to its own people and country. Anti-Federalist Brutus argued, “A free republic will never keep a standing army to execute its laws” (Ketcham 1993:

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278). In another context at a different time Thomas Jefferson, who was not at the constitutional convention or actively participate in the ratification debates, supported the Anti-Federalists on this point. “Standing armies [are] inconsistent with [a people’s] freedom and subversive of their quiet” (reply to Lord North’s Proposition 1775). And separate from their threat to freedom is the matter of practicality. The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so (Letter to Thomas Cooper 1814). Publius abruptly dismisses the concern over a standing army in #24 to 25 by arguing that a standing army is necessary for the new nation to protect itself against foreign invasions and domestic insurrection, so objections to the new Constitution on these grounds is merely shouting at the wind. Those who oppose standing armies and who would rather rely on militias misunderstand the nature of war and foreign affairs. “War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time and by practice” (#25: 162). But this raises the question as to if a standing army should be put to use on a regular basis whether there is a legitimate threat or not. If a well-operating military is desirable and requires practice, should war be sought? Would Publius advocate war for no other reason than practice? Then, continuing in #26, Publius argues that the legislative branch should be unconstrained in its ability to raise a military force for similar reasons, which is: because it is necessary it must be so. It is unlikely this would have appeased the objectors who thought these powers would threaten the liberty of states and citizens the way the English had, which is why we see the First Congress under the new Constitution move to adopt Amendment III, which prohibits the quartering of soldiers in time of peace and only in accordance with the law in times of war. In addition, one could imagine that Amendment II, which gives the right to states

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to raise and maintain their own militias and for the citizens to arm themselves, was adopted because the people feared a standing army. Papers 27 to 28 challenge those who argue that the new Constitution can only be enforced at the barrel of a gun which is what makes these two papers extensions of #24 to 26. Opponents of the new Constitution, as Publius has characterized their argument, suggest that policies from the national level will not be enforced or followed by the states or its citizens. Publius thinks this argument is ridiculous, given that the only way to reach this conclusion is if one assumes that the national laws will be the worse laws and an intelligent people will usually follow good laws, and always the better laws if there is a choice. Moreover, Publius argues that the people will become accustomed to the new government and will therefore become more agreeable to it as the momentum builds. “[T]he more the operations of the national authority are intermingled in the ordinary exercise of government … the greater will be the probability that it will conciliate the respect and attachment of the community” (#27: 172). But #28 takes a less aggressive stance against the opponents by suggesting that at times it may be necessary to use military force to save the union. Publius is not apologetic, but instead says that such a situation is unlikely, but if it were to occur, the national government should have the requisite power to quell domestic rebellions. But toward the end of #28 Publius does concede that the people have the right to check the government. In Lockean tones Publius gives the people the right to revolt. If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater

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than in a small, and of course more competent to a struggle with the attempts of the government to establish tyranny (#28: 176). The counter-argument not picked up by the Anti-Federalists, nor refuted by Publius, is that it may be more difficult to rally the people in a large republic. When people are spread out over a great distance what effects one group may not affect another in the same manner or to the same extent. And while we now have social media and instant means of communication, during the eighteenth century communication was much more costly and time consuming, making it much more difficult to get everyone on the same page. The Second Amendment of the U.S. Constitution makes the concerns of #29 less relevant than they were at the time of the writing. But at the time, states were worried that they would not be allowed to raise and regulate their own militia under the new Constitution given that the power to regulate the military was given to congress. Publius argues that this is a mere expediency, since a uniform fighting group is more effective than a dispersed one and the members of the Union Army would be citizens of the states first and therefore would not work against their states at the urging of the Union. In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. … If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy (#29: 183). Paper 29 ended the topic of military governance while #30 begins a discussion of taxation that will be carried out through #36: It has been already observed that the federal government ought to possess the power of providing for the support of national forces … but … in respect to revenue, [the Union] must necessarily be empowered to extend. … The conclusion is, that there

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must be interwoven, in the frame of the government, a general power of taxation, in one shape or another (#30: 183). The topic of taxation was raised in #11 and #12, but a more thorough discussion takes place in #30 to 36. Publius argues that the national government should have the power to levy and collect taxes, since doing so will enable a more uniform, equitable, and reliable tax system. “In the Ottoman and Turkish empire, the sovereign … has no right to impose a new tax. The consequence is that he permits the bashaws and governors of provinces to pillage the people without mercy. … In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation” (#30: 184). But the opponents worry that this will give the new government too much power. Publius agrees it will give the central government power, but without revenue, the life blood of government, the new government will fail. Governments need money to survive. But the power to tax is also the power to destroy (McCullough v. Maryland), which is why the Anti-Federalists are so concerned. And the Anti-Federalists were right to be concerned, for today the national government uses its ability to raise revenue and distribute tax dollars in a way that would shock Publius. For instance, with the ratification of the 16th Amendment on February 3, 1913 the national government was given the ability to levy an income tax on individuals; an act previously prohibited under Article I, Section 9. So, when reading the arguments put forth in #34 and #35 in particular, we must remember that the Constitution has been amended with regard to taxation, which means that the arguments put forth by Publius may not apply to our current Constitution. But initially at least, the Constitution rested upon the idea that “It might be demonstrated that the most productive system of finance will always be the least burdensome” (#35: 213) which simply means that if taxes are too high, people will stop engaging in productive commerce. To assuage the concerns of the Anti-Federalists that the new government will abuse its taxing authority, Publius replies, Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and

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irresolution … all observations be founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers (#31: 192). It is hardly reassuring to the skeptical reader to find that the best response Publius can muster to the criticism of the dangers inherent in the national government’s taxing power is, essentially, “Don’t ask that question please.” Publius, though, provides a more extensive philosophical justification for allowing the national government broad taxing authority, as the national government occupies a unique vantage point which the states do not. The states are concerned only with their well-being, whereas the nation is concerned with the well-being of all. “The man who understands those principles [political economy] best will be least likely to resort to oppressive expedients, or to sacrifice any particular class of citizens to the procurement of revenue” (#35: 212–13). What is discussed in #33 will become one of the most continuously debated clauses of the Constitution. The Necessary and Proper Clause, or the Elastic Clause, states that Congress shall have all power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (Article I, Section 8, Clause 18). Beginning with the creation of a national bank in Washington’s Administration at the urging of Alexander Hamilton and continuing into the twenty-first century with debates about state sovereignty and the regulatory and spending functions of Congress, this clause has been at the center of American constitutional debates. John Quincy Adams, writing in objection to the clause, warns, “But if some alteration be necessary [to the Articles of Confederation], where is the necessity of introducing despotism, yes, a despotism; for if there shall be any limits to the power of the federal Congress, they will only be such as they themselves shall be pleased to establish.” Concerns of this nature were echoed by Anti-Federalists in Pennsylvania as well: We dissent, secondly, because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states,

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and produce from their ruins one consolidated government, which from the nature of things will be an iron handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government (Ketcham 1993: 242). The claim Publius makes is that even if this clause were omitted, the Constitution would not change as these powers are implied. The framers could not itemize all of the government’s powers due to unforeseeable circumstances arising in the future. But the Anti-Federalists were still worried that the clause would permit an expansion of national authority that could not be checked by the states, and the defense offered by Publius did not go far in making them less concerned. As it applies to taxation, the states and Anti-Federalists worried that the national government would be oppressive, given the broad sweep of the Necessary and Proper Clause. But turning to #35 and #36 Publius acknowledges this is possible but unlikely, as those who occupy national office would have no incentive to be oppressive given that they too are members of the states and citizenry which they represent, and that the system of checks and balances would prevent legislation designed to benefit one class or region at the expense of another. But Publius knows his audience and is not above pandering. New York, and particularly New York City where most of the papers are being published, is a city of merchants, not farmers. So when discussing from which class of men the representatives in government ought to be drawn, Publius writes, Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions and trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. … We must therefore consider merchants as the natural representatives of all these classes of community (#35: 210–11). In other words, Publius is telling the readers in New York: do not worry about your interests being represented, for it is people just like you who are most likely to be voted into office which means your interests will be represented to your satisfaction.

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If we return to #32 we see another reason to worry, just as the Anti-Federalists had. Paper 32 takes up the argument that this union is only partially consolidated; what we know as federalism, in which the states retain sovereignty over certain matters and the national government regulates others. In #32 Publius tries to downplay the power of the national government by suggesting that the powers taken by the national government will never overcome those guaranteed to the states, since the Constitution clearly stipulates what the national government can and cannot do. “But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States” (#32: 194). So the reader who has read all the papers is left in limbo. No power is specifically delegated by the necessary and proper clause and it leaves open the possibility to regulate those things which were not specifically delegated to the national government, such as a national bank. What is left for you, the reader, to decide is whether in one of these instances Publius is being disingenuous, if the interpretation of the Constitution following its ratification went beyond what Publius had thought proper, or if there is some way to reconcile the two seemingly conflicting arguments put forth by the same author within the same two-week span.

How the new Constitution conforms to the principles of republicanism and federalism (Papers 37 to 40) With #37 Publius transitions from discussing Union in #1 to 36 to discussing the merits of the Constitution beyond the benefits of union. So it is only natural that #37 gives a description of the work of the Constitutional Convention. What the Constitutional Convention concluded was that the existing Confederacy had to be scrapped in favor of a government with more energy. What the Convention also found was that no previous philosopher, historian, or nation provided what was needed to create a suitable

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government. Thus the Convention was left with the task of creating something new, and presumably better, than any government known before. “Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary” (#37: 224). Publius argues that with this large task the Convention did not achieve perfection, but it did achieve something better than what had existed before and a Constitution that was certainly better than the Articles of Confederation. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers that the existing confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than beacons, which give warning of the course to be shunned (#37: 222). In addition to charting an entirely new course, the Convention had to do it as a collective; whereas all great governments that were previously achieved were done so through chance or through the virtue of a single individual. But the Convention created the Constitution through “deliberation and consent” within an assembly (#38: 228). Paper 38 also shows how far removed The Federalist Papers are from the current American regime. Publius does not see the rise of an administrative state as evidenced by his statement that “I shall be told that however danger this mixture of power may be in theory, it is rendered harmless by the dependence of Congress on the States for the means of carrying them into practice; that however large the mass of power may be, it is in fact a lifeless mass” (#38: 234). The states do not have to carry out the orders of Congress if the national bureaucracy is capable. And if Congress wants the states to do something but a state does not agree, Congress has the authority to withhold certain benefits from the state until it cooperates. For all the insight The Federalist Papers have on current politics, this is one area where it misjudged how the regime would evolve.

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Paper 39 examines the question of whether the new Constitution conforms to republican principles. Recall that in #10 the advantages of a republican government were given, specifically the advantages it offered over democracy. A republican government is one that derives its powers directly or indirectly from the people. And Publius is quick to point out that this means the “great body of society” and not just a preferred class of people. Publius makes the claim that the people elect, either directly or indirectly, the President and the members of each congressional chamber, thus making the new government deserving of the name republican. Furthermore, the new Constitution also guarantees, under Article IV, Section 4, that each state government will maintain a republican form of government. Approximately the last two-thirds of the paper was dedicated to defending the structure as partly federal and partly national. To those of us familiar with the term federalism this is a strange argument to make. A federal government is one that is a mixture of state and national government, so to say it is partly federal and partly national seems incoherent, as it did a few decades later to John C. Calhoun. But the term federalism as used by Publius, if we are to offer a favorable reading, understood federal to mean confederation in modern parlance. The term federalism has shifted from Publius’ time to ours. So when you read #39 you should read federal as confederacy. And when read in this way, what #39 argues for is a federal system as we understand the term today. Perhaps the most important insight that may be gleaned from #39 is in its description of the nature of the Constitution. The Constitution itself is a federal and not a national document. The people of the nation are not a singular people; rather, they are members of their states, and the states, by the consent of their people, consent to be bound by the new Constitution. The action of the state also binds the people, which may be viewed as a national people in certain respects, but the people referred to are the people of the states by and large. “Each state, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation then, the new Constitution will, if established, be a federal and not a national constitution” (#39: 240). To view the Constitution in this way is the only way to prevent majority tyranny, argues Publius.

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“Were the people regarded in this transaction [ratification] as forming one nation, the will of the majority of the whole people of the United States would bind the minority” (#39: 240). Viewing the Constitution in this light may force some to go back and revisit the U.S. Supreme Court opinion of Texas v. White (1869) which decided that secession was unconstitutional. Paper 39 goes on to discuss various aspects of the Constitution and whether it would be national or federal, but the most important argument is the one outlined above, as it says exactly who “We the People” refers to according to Publius and what role the states ought to serve in the new government. The question of treason now comes up, or if not treason, an examination of what gave the Constitutional Convention that met in Philadelphia its authority in #40. Remember from earlier in this book that the Convention was given the power, by each state that sent delegates, to revise the Articles of Confederation, not to write a new constitution. Through an exegesis of the order from the Continental Congress, Publius showed that they had the authority to rewrite the Articles of Confederation since they were asked to create a stronger national government and to revise the Articles to the degree necessary to make this possible. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means (#40: 244–5). The only option the Constitutional Convention had, according to Publius, was to rewrite the whole thing given its orders from the Congress and the states. The most important part of the instructions to the Convention, according to Publius, was to improve the Union, thus making the secondary concern the means by which the goal was to be achieved. If the means for revising the Articles would not improve and strengthen the Union to a satisfactory point, then the means should be sacrificed for the ends, since the means are only as good as the ends produced.

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Power of the new government relative to the power of the states (Papers 41 to 46) Paper 41 begins a shift from a discussion of generalities and theoretical concepts to a discussion of the particulars of the new Constitution. Paper 41 to 46 introduce a few new arguments but for the most part they simply articulate arguments familiar to those who read the first 40 with any care. So, before a shift to the particulars of the new Constitution can take place, #41 reviews familiar arguments about why the powers vested in the new government are necessary and need not concern the states, particularly the advantage the new government will have in staving off foreign invasion; whereas #42 rearticulates why the new government is better equipped to regulate intercourse with foreign nations, #43 discusses how it will help maintain harmony between the states, #44 discusses how it will prevent states from turning tyrannous, and #45 to 46 discuss the relative powers of the state and national governments. The core presumption to be defended in #41, and in earlier papers, is that union is better than disunion. The reader might hope that something new would be added now that the topic is revisited but that is not the case. Rather than a normative justification for union (is a union morally superior?) we simply get consequentialist (results-oriented) justifications based upon projections of how the new regime will work. The only new addition is that the new government is given a new power that had not been previously mentioned. Anticipating Hamilton’s push for a national bank when he becomes Treasury Secretary under George Washington, Publius argues that “[t]he power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense” could be construed as an argument in favor of a national bank. Publius reasons that this is both necessary and proper, since a government needs to regulate the supply of money for national defense, and providing for a national defense is the proper role of government. Paper 42 shows that the second and third class of powers to be lodged in the national government is also vital for the preservation of a union. “The second class of powers, lodged in the general government, consists of those which regulate the intercourse with

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foreign nations. … This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations” (#42: 260–1). A divided nation that could not act as a united front to help curb piracy, fight off invasion, enforce treaties, and regulate trade would not be respected in the international arena. Likewise, the national—or general—government needed to be able to regulate the interactions between states, since being able to do so effectively would go a long way toward holding the nation together and helping to present a united front internationally. When it comes to interstate interaction it is assumed that each state would work in its own best interests even if that meant working against another state’s interests. This would inevitably create conflict. The general government would act as a referee to make sure each state was working in the national interest. And aside from conflict, it would simply make things easier if there was one standard set of weights and measures, currency, and other means of interacting and conducting business. Paper 43 takes up the Guaranty Clause (Article IV, Section 4) in great detail. The clause stipulates that the federal government will guarantee a republican form of government for each state. The Anti-Federalists were worried that this would permit the government to come into states and take them over in the name of promoting republicanism. To this, Madison responded The authority extends no further than to a guaranty of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the states may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty of the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions (#43: 272). Paper 42 also introduces the regulation of trade, specifically the slave trade, which Congress could not interfere with until 1808 (Article I, Section 9). But the extensive focus on a part of the Constitution that no longer applies raises the question of whether

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the Constitution advocated by Publius is the same Constitution today, particularly in light of the structural changes made to the document with the Amendments. For instance, #45 argues that the states will retain their influence given, in part, their prominent role in electing Senators via state legislatures. Because Senators would not be directly elected, the interest of the states, and not the will of the people, would be represented in the Senate which would then serve as a check on the encroachment of the national power on state power. But this institutional check was altered in 1913 with the ratification of the 17th Amendment that provided for the direct election of Senators, thus amending Article I, Section 3 of the Constitution and perhaps altering the balance of power between the national and state governments. This is not to imply that the 17th Amendment radically altered the federal nature of our government, but the careful reader should make note of how later developments might alter Publius’ assumptions of how the government would operate and thus undermine portions of the argument. Such a critical eye should be used when reading #46 which revisits why the states will not be overrun by the national government. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a mediated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them (#46: 297). Publius’ central argument in this regard, namely that the states will not be overrun by the national government, is that the national government has only limited powers. “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite” (#45: 289). However, questions remain about how limited the national government’s powers are given the possibility of an expansive reading of the Necessary and Proper Clause and the Guaranty Clause.

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The separation of powers (Papers 47 to 51) The primary concern among the Anti-Federalists was that the new Constitution would place too much power in the hands of a central government that could use that power against the people and the states. The primary means of response to these charges by Publius is to show how the new Constitution gives power to the states and people or to show how these charges are fallacious in certain instances. Now, in #47 to 51, Publius uses a different approach by showing that even though the national government has more power than an individual state, the way power is divided among three branches at the national level would prevent the rise of tyranny, as coordinating the efforts of all three branches in the same direction at the same time would be nearly impossible. To introduce the concept of separation of powers Publius relies heavily on the authority of Montesquieu in #47. Quoting Montesquieu, Publius writes, “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates … if the power of judging be not separated from the legislative and executive powers” (#47: 299). And to make the point familiar to the readers, Publius shows how each of the 13 colonies incorporated similar structures into their constitutions with varying degrees of success. The separation of powers, on equal par with voting perhaps, is the key to guaranteeing liberty. If someone, or some body, can make the laws, enforce the laws, and arbitrate disputes over the law, that person or body would have unrivaled and unalterable power. Therefore, dividing power among several branches keeps the power of government limited. However, separation of powers is not enough, since in #48 it is shown that if the powers of the three branches of government are kept completely separate from one another there would be no way to stop one branch overstepping its bounds. The separation of powers must be complemented by the balance of powers. “I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained” (#48: 305). Paper 48 does not fully explicate how the system will work in the new model, and #49 and #50 only

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discuss the people’s role in preventing one branch from encroaching on another. As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others (#49: 310–11). Papers 49 to 50 are ultimately unpersuasive as the avenues for the people to participate are quite limited and because if the people were a sufficient check on government power, a complex system of separation of powers would be superfluous in the first place. It is clear that the people are not qualified to make the most important decisions, as only those who are in office are qualified; a point made clear when Publius argues against censors in government. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified (#50: 317). Thus it is not until #51 that we get a clear explanation of how the system, theoretically, will work. Paper 51 adopts similar arguments to #10, and other than #10, it is perhaps the most widely read of the Papers. Publius begins by reiterating that the structure itself will maintain balance among the branches. It is not the Constitution that will preserve the balance, even though it outlines what the balance should be, but the nature of the branches and the people who occupy them. “But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary

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constitutional means and personal motives to resist encroachments. … Ambition must be made to counteract ambition” (#51: 318–19). Paper 51 assumes that human nature, like #10, will lead man to encroach upon the station of other men, as men are naturally selfish and ambitious. Thus, rather than seeking to change man, or wait around for an “enlightened statesman,” the system takes men as they are and creates a system that allows them to act according to their nature. Because their nature is predictable, the consequences of their nature (i.e. their actions) will be predictable as well in given situations. The Constitution takes this into account by funneling men’s ambition so that it clashes with the ambition of other men which then neutralizes the effects of ambition without forcing man to change his nature. So the House of Representatives would not encroach upon the power of the Senate because the Senate would protect its interests against such encroachment as it is equipped by the Constitution with the tools to do so. The President could not encroach upon the House or upon the Supreme Court for the same reason. Each branch and department was equipped with the tools to protect themselves, which they would, for they would each be manned by the ambitious. The same could also be true for why the states would not permit encroachment upon their zone of authority or why the interests of one segment of the population would be kept at bay by the interests of another segment as was predicted in #10. Federalism (#39) and the separation of powers are designed to work together to limit the force of government and its ability to infringe individual liberty. In the compound government of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself (#51: 320). Paper 51, like #10, paints a nasty picture of man. But Jay, Madison, and Hamilton were realists looking to find solutions to the problems that ailed the country by instituting a government that worked. It does no good to anyone if we wish men were something different and not recognize them for what they truly

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are, thought Publius. If a government is going to work it must be created according to reality, not a utopian ideal. Such a realistic approach makes Publius unique among political theorists, particularly someone like Plato who spoke of Forms and wished for men to be guided by their higher desires. Publius also remains unique among statesmen, as his understanding of philosophical principles was sound as well.

House of Representatives (Papers 52 to 58) Readers looking for something more concrete will welcome #52, as it begins the discussion of the House of Representatives. This begins a discussion of the three branches that will, with the exception of five papers, make up the remainder of The Federalist Papers—#52 to 58 House of Representatives, #62 to 66 Senate, #67 to 77 Executive, #78 to 83 Judiciary. Papers 59 to 61 deal with the regulation of elections, while #84 takes up miscellaneous objections before #85 closes things out. To understand #52 one must recall the grievances levied against King George III in the Declaration of Independence. Against King George, the colonists, through the pen of Thomas Jefferson, levied the charges that: He has dissolved Representative Houses repeatedly, for opposing the manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the state remaining in the mean time exposed to all the dangers of invasion from without, and convulsions from within. Publius argues that the qualifications, meeting place, and term of service for the House of Representatives must be set in the Constitution, as it is fundamental to republican government to make sure that the people are properly represented by an assembly of those they elect. When left in the hands of a single person, or set of persons, rather than the rule of law the system of representation can be distorted to such a degree that the interests of the people

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are no longer represented and the government turns tyrannical. The Constitution’s primary purpose is to establish the rule of law so that arbitrary exertions of force can be nullified. This is but one instance in which that can be seen clearly. However, Publius did not think it proper for the national government to determine who was eligible for office, the rules of election, or other matters. It left it for the states to decide, with the national government acting as an overseer to make sure republican government was being maintained. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned (#52: 323). Elections for the House of Representatives are held every two years. The question taken up in #53 is whether this is an adequate interval. It was the opinion of many republicans, especially those with a more populist or democratic bent, that elections should be held yearly. Publius challenged this point on the grounds that a year was not enough time to get the work done that needed to get done. By the time the representatives made it to the capital, learned the layout of their new offices, and rules of the assembly, it would be time for them to run for election again. Taking into consideration also that trips would be necessary to return to one’s district to meet with constituents, there would be barely enough time to write and pass legislation, let alone debate seriously such matters: No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. … The period of service, ought, therefore, in all such cases, to bear some property to the extent of practical knowledge requisite to the due performance of the service (#53: 329–30).

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Two years was frequent enough to keep the representatives responsive to the needs of the people yet long enough to allow for some work to get done. One may challenge this conclusion as being antiquated given advances in travel that have turned the longest commutes between the capital and one’s district to mere hours, whereas at the time of the nation’s founding it could take weeks to get from the capital to Georgia or South Carolina. So one year may be long enough now. However, given that running for office is now a never-ending process that takes up so much of a congressperson’s time, we may also conclude that two years is not long enough to get any serious work done beyond securing campaign funds. If the author of #54 has said anything objectionable to modern sensibilities it would be that “[s]laves are considered as property, not as persons” (#54: 334). The Constitution instituted the 3/5s rule in order to accommodate the problem slaves presented when assessing population. The slave states would have preferred slaves to be counted as slaves as it would have given them a larger population and thus a larger representation in Congress, since the number of seats in the House allocated to each state was done so based upon population. The 3/5s rule has since been repealed, and thus the applicability of #54 to modern times, but reading the paper should remind us that the U.S.A. was created with a particular image in mind and has at times fallen short of that image, even at the beginning. It is not that the Constitution guarantees the ideal but that it allows us to pursue the ideal. Furthermore, the presence of these errors should remind us that the Founders were not faultless, and that their moral compass could sometimes stray. Blindly following them will thus do us no good. What we should engage in is a high-minded debate about the good life and how we can confirm that goal to the parameters of the Constitution. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. … The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty (#55: 338).

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Pubius takes the end of #55 to reply to this self-proposed question and answers it in the negative. Because representation in the House follows ratios seen in the states, and because it is one of two legislative branches, which itself is only one-third of the entire national government, there should be no reason to worry about the House of Representatives using its power against the people. The Representatives will be closest to the people, and if they do take action against the people, the people or the other branches can stop them. Each state in the union is guaranteed one member in the House of Representatives but the number of representatives is not to exceed one representative for 30,000 citizens (Article I, Section 2, Clause 3). The conclusion Publius reaches at the end of #56 is that considering the responsibilities of the House and the historical examples cited, “it seems to give the fullest assurance that a representative for every thirty thousand inhabitants will render the latter [House of Representatives] both safe and competent guardian of the interests which will be confided to it” (#56: 347). Anti-Federalist Patrick Henry worried that this provision was insufficient to guarantee representation: I mean, when it says, that there shall not be more Representatives, than one for every 30,000. Now, sir, how easy is it to evade this privilege?... This may be satisfied by one Representative from each State. Let our number be ever so great, this immence continent, may, by this artful expression, be reduced to have but 13 Representatives: I confess this construction is not natural; but the ambiguity of the expression lays a good ground for a quarrel. Why was it not clearly and unequivocally expressed, that they should be entitled, to have one for every 30,000? (Ketcham 1993: 202). Henry wanted to know why there was a ceiling and not a floor. The quality of representation, according to Henry’s assumption, is dependent upon a close relationship between the people and their representatives; the smaller the constituency the better the representation. Therefore, if there was nothing preventing representation of one for every 100,000, but there could not be any more representatives than one for every 30,000, quality representation was at risk. The current number of seats in the House of Representatives is capped at 435, and has been since 1913. Every ten years when

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the census is taken the number of representatives is redistributed among the states to reflect population shifts. Since the number is capped at 435, some states will lose representatives if other states make population gains. As of 2010, there was one representative in the House for every 700,000 citizens. If the Anti-Federalists were concerned that the ratio in 1790 (1:30,000) was unacceptable they would be yelling tyranny today. The Anti-Federalists’ argument, as replied to first in #55 and then in #56, was that the people and their representatives had to be closely linked, which meant that the number of representatives had to be such that the people’s will could be adequately expressed in Congress. They worried that the 65 members originally slotted to serve in the House would be inadequate. How could one person possibly know the will of the entire population of Delaware, or five for South Carolina? The implied response to this concern is that we cannot expect for there to be any greater number qualified to serve in this capacity than at a ratio of 1:30,000. This is an extension of the argument in #10 that we need to extend the sphere, not only to extend and disperse conflict, but so that we can expand the population from which to elect statesmen. Furthermore, if the assembly had been any more numerous, it would disintegrate into chaos. “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob” (#55: 340). Like many of the defenses of the Constitution offered by Publius, our author believes the Convention struck a balance between two extremes in setting the ratio the way it did. And his defense of why a balance needs to be struck reinforces the earlier point that enlightened statesmen who act as such are rare as well as the view of human nature articulated in #10 and #51. “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form” (#55: 343). For Publius the world is not an either/or proposition. Publius recognizes that things come in degrees and that people vacillate between good and bad. Republican government, with the necessary institutional checks, allows government to appropriately operate in this sort of ambiguity. The problem that is not directly addressed, however,

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is if republican government assumes the presence of a virtuous citizenry, and requires citizens to at times and in some degree be virtuous, then without virtue republican government fails. Publius does not address how republican government can instill or protect virtue. For all the institutional guarantees the Constitution provides, the one fundamental guarantee that the whole system requires is not granted. The topic of representation is continued over the course of the next several essays, but #58 is a direct continuation of the idea raised in #55, which is how the proper ratio of representatives to citizens will be preserved. At the time of ratification 1:30,000 was to be the set ratio and every ten years there would be a census to keep track of population size. If the population grew to such an extent that more House members were needed to maintain the ratio they would be added by apportioning the House seats to the states according to population. Publius argued that the other branches and the Senate would make sure the House acted constitutionally on this matter. But then he closes the paper by arguing again for the size of the House and against those who want more members serving: “[T]he more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason” (#58: 358). But this was not enough for Publius. He continued on in a passage that summarizes the core of his position up to this point and taking a shot at the Anti-Federalists. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSE OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic (#58: 358). However, even if we consider the matter settled that the structure and composition of the House is acceptable, Publius has a long

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way to go in justifying other aspects of it. For instance, the Anti-Federalists are concerned that the House will be able to elevate a certain class of men above others, thus exhibiting their skepticism of centralized government. The Anti-Federalists are concerned that the new government, by increasing the distance between the government and the populace, will create an entrenched political class that is inimical to the interests of the people. Publius thinks this is foolish given that the laws passed by Congress will be enforced upon the people and their representatives equally: “They [House of Representatives] can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society” (#57: 350). This sentiment is almost quaint to modern readers. No modern student of politics is ignorant of the fact that politicians have an easier time finding loopholes for themselves and passing laws which are favorable to one interest and unfavorable to others. Perhaps because of naivety, or it could simply be a matter of rhetoric, Publius’ assumption that such a restraint on the House from acting against the interest of the people seems misguided. But this is the fifth of five circumstances that will restrain the House according to Publius. First, the people elected to office will be “somewhat distinguished also by those qualities which entitle them to it” (#57: 349). Yet we know from earlier essays, specifically #10 and 51, that the system of checks and balances is in place because there is no guarantee that those in office will be virtuous; in fact, it is quite likely that they will not be. So it is hard to find consistency in Publius on this point. The second and third circumstances work in concert. Combined, the second and third suggest that because House members are elected to office they will owe their office to their constituents which will endear them to their districts and voters. In other words, because politicians can be counted on as self-serving office seekers they can be counted on to provide services and laws which are favorable to the greatest number of voters who are likely to vote them into office. This poses the question of whether the House member will simply look out for his district’s interest and not the nation as a whole, but the House was designed to represent local interests at the national level. The Senate and President should have a more national outlook than the House. Frequent elections are the fourth circumstance working against the rise of a political class. Frequent elections not only remind

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politicians to whom they are accountable, it allows the people to keep a watchful eye on their officials. House members are elected every two years, which means that every two years they must go back to their districts and explain themselves. This means that if they do anything against the people they will quickly lose office. This assumes, however, that the people are properly engaged and know what is in their best interests. However, the question raised at the beginning of #57 is only partially addressed by the end of the essay. For if we accept that the checks on the House that keep them tied to the people are sufficient, #57 has still left undefined who the people are. If the people are only a select group then the House cannot be representative of everyone’s interests and will elevate one group above another. At the time of the Constitution’s ratification the only people authorized to vote, and therefore the only people able to check House members, were white males, but it was ultimately left up to the states to choose who was eligible to vote. “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature” (Article I, Section 2). Thus, even if we take Publius’ argument as true, it would only lead one to conclude that white males would be advantaged under the system barring any amendments or reforms to the contrary.

Regulation of elections (Papers 59 to 61) In a representative system of government, the election of legislators is of paramount importance. Given that the legislature is to be the primary lawmaking body, the election of its members will go a long way in deciding what gets done. Thus, it is no surprise that the method by which members of the House and Senate were to be chosen under the new Constitution became a contentious issue during the ratification debates. On February 22, 1788, Publius published #59 to address the issue of how the election of members of Congress was to be regulated. In the Declaration of Independence, one set of grievances levied against King George III was the unfair manipulation of elections.

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Among the long train of abuses of which the King was found guilty were that: He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records. … He has dissolved representative houses repeatedly. … He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative power, incapable of annihilation, have returned to the people at large for their exercise; the state remaining the meantime exposed to all the dangers of invasion from without, and convulsions within. The idea that people should determine for themselves how their representatives are elected and when the legislative branch meets and dissolves is central to the Jeffersonian concept of self-government and all those who agree with the political theory outlined in the U.S. Declaration of Independence. For without the ability to do so, the people are left unable to govern themselves and must succumb to the whim of the body that does have the power to decide how legislators are chosen and when the legislature is to meet. Federalist #59 argues that these powers are given to the state except in instances when the national government feels it is necessary to step in. The national government, according to Publius’ argument, may alter the times and manner for holding elections of Senators and representatives, and may alter the places in which elections are held for representatives, but may not interfere with the places in which Senators are elected (Article I, Section 4). This provision seems to be precisely the sort of power that Jefferson and the Declaration of Independence were wary of. Publius’ argument was that leaving these powers in the hands of the states would leave the Union at the mercy of the states. Elections would vary too widely and thus threaten the viability of the Union. Publius’ fear was of disunion. He argued that the national government should be given a check on the ability of state governments to regulate the election of members to Congress in order to prevent disunion that would result from too much state autonomy. The Anti-Federalists did not see disunion as the primary threat to self-government as Publius did, but rather the accumulation of political power within a centralized national government was their biggest fear.

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While the debate over how to determine the means of representation is itself important, it brings to light one of the central debates in American politics—how to balance the need for stability and the need for liberty. We see this debate play out in issue areas as varied as federalism and national security to financial regulation. It is a continuous struggle to find the balance, but it is in the struggle where the balance is found. Had Publius faced no opposition, one could justifiably read the Constitution as a vehicle for government centralization, but because he faced opposition we know that the Constitution was designed to balance the need for a central government with the need to maintain local government structures. We need to take our cue from the founding generation—and not just Publius—but all of those who took it upon themselves to embark on a high-minded political debate that touched upon perennial questions of political significance. By following the founders in this respect we will be able to engage in a reasoned and informed debate about what is most important to us. By doing so we will be able to stay faithful to the wording and intentions of the founders’ Constitution as well as the spirit through which the founding generation governed. However, we should also recognize the tension between what the Constitution says and the aspirations of the Declaration of Independence. Of course, #60 mediates Publius’ support of the clause by suggesting that it would be equally harmful to turn too much power over to the national government in the regulation of elections. If nothing else, #59 and #60 combine to reinforce the position of Publius that a system of checks and balances is the best route to follow. Regardless of where power is placed it will look to extend its reach and the only way to combat the effect is to counter it with power from another direction. However, it is important to note that #60 eventually comes to a defense of the clause addressed in #59. What #60 adds to the argument is the idea that because of the different constituencies each of the elected branches served, it will be highly unlikely that any single interest can dominate each of the branches simultaneously. But the circumstances which will be likely to have the greatest influence in the matter will be dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people,

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the Senate by the State legislatures, the President by the electors chosen for that purpose by that people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors (#60: 366). In Federalist #61 Publius reveals his theory of constitutional construction in a peculiar way. The role constitutions should serve, according to Publius, is consistent with what modern political scientists consider vital for a long-lasting constitution. Constitutions, if they are to last, must be broad and treated with reverence. The topic of #61 is a carry-over from #59 and 60. The reason Publius cannot leave this topic alone is because his opponents will not. Much of the Federalist owes its structure to the fact that Publius was engaged in an ongoing public opinion campaign. If Publius felt that he lacked public support on a particular facet of the Constitution owing to an objection raised by an Anti-Federalist, then Publius would write another paper on the topic. Because many of the objections are being levied by those who favor a more decentralized structure than what the Constitution proposes, Publius uses the states to his advantage. In this paper Publius shows that, as has been customary throughout the Federalist, the provisions which are incorporated into the Constitution also appear in some of the state constitutions. This is a successful rhetorical strategy albeit one that lacks some logical and philosophical rigor. For instance, while Publius never reconciles the Constitution’s inconsistency with the U.S. Declaration with regard to the location of elections, he does make it a more palatable inconsistency to show that the people of New York have dealt with this in their own state without causing much of a problem. Publius gives a straightforward defense of placing the power to determine when and how elections are held in the latter third of #61, something for which the reader has been patiently awaiting. Putting this power into the hands of the national government is a matter of political expediency. If the power were left in the hands of the states there would be little or no consistency with regard to elections, and members elected to the House and Senate would begin their terms anytime between January and December depending upon when their state held elections. One could easily imagine what types of problems this might cause. Of course,

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Publius knows that there is an easy objection to his claim: Why leave the decision to Congress? Why not specify in the Constitution when all elections for national office are to be held? Publius’ response is where we see his theory of constitutional construction come through. Publius objects to the inclusion of such a specification in the Constitution because he is open to the possibility that events and changes may occur that would require an amendment to the Constitution as it relates to this matter. If there are such events on a regular basis, then regularly amending the Constitution would become necessary. Publius does not want to see this happen. For if constitutions are specific in their provisions, and they contain too numerous provisions, they will require constant amendment. Being so specific is not what constitutions are for, but rather laws. Constitutions provide the scaffolding and laws provide the bricks and mortar. Moreover, the more we amend constitutions the more feeble they become, if not in actuality, then at least in perception, which then leads to an actual weakening of the system. If citizens and officials perceive their Constitution as weak, then the whole system runs the risk of collapsing. A Constitution must be held in reverence by the people and officials; which means it should not be tinkered with too much after it is ratified. Publius knew this, and so did the framers who approved of Article V which made the amendment process so difficult and thus unlikely. Whether we agree or disagree with Publius’ position that the threat to a just government comes from below rather than above, we cannot deny that his understanding of constitutional construction is accurate.

The Senate (Papers 62 to 66) With all the time spent on the House of Representatives one may be excused for forgetting about the Senate. The presence of papers addressing the Senate and the House separately indicates just how different each one was perceived as well as how each was supposed to function separately from the other, serve different purposes, and act as a check to the other. The Senate is the more elite chamber. The members serve longer terms (six years vs. two in the House),

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there are only two Senators per state which means there are fewer Senators than House members in total, the Senators are not directly elected by the people, one must be 30 to be elected to the Senate but only 25 to be elected to the House, and the states are equally represented in the Senate, which means that the states, and the people necessarily, are to be represented. All of these attributes of the Senate were designed with the idea that the Senate was to serve as a check on the capricious nature of the general majority, to guard against the passions of the majority. That is, the House was supposed to go along with public opinion and the Senate was to mitigate its effects. Paper 62 makes each of these points in fairly short order without much elaboration. But mitigating the effects of the majority was not the primary end, but merely an means to achieving good government, which is “fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means of which that object can be best attained” (#62: 378). Without saying so directly, what this implies is that the people are ill-equipped to provide for their own happiness, and are perhaps unable to even know what is required for their happiness. This is as profound a statement against democratic rule as one is likely to find in The Federalist Papers. Furthermore, it supports the claim in #10 that what the Constitution creates is a republic and not a democracy, which echoes the statement often attributed to Benjamin Franklin: “We have given you a Republic. It remains to be seen if you will able to retain it.” This shift in emphasis from republic to democracy is one reason why modern readers have difficulty with The Federalist Papers. In modern times we value democracy and applaud nations that seek democracy when they throw off their dictators. In fact, America’s current foreign policy is guided by the idea that the spread of democracy is of immediate importance. But Madison, Hamilton, Jay, and the other founders such as Franklin would not approve of democracy, since they were skeptical of the capricious nature of public opinion. In #63, it is argued that the Senate will be a block against corruption and tyranny in the way a democratic institution like the House cannot. With direct elections every two years the members of the House can be swept in and out of office with great efficiency and must therefore succumb to the will of the majority. If some interest gains the support of the majority that runs against the general good, then the threat of tyranny becomes likely save for

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the protection against the passions of the majority provided by the Senate. The Senate, by being somewhat isolated from the will of the majority, will prevent the nation from being swept away by some immediate passion which is contrary to the general good. However, with the ratification of the 17th Amendment in 19131 which provided for the direct election of citizens, the entire system of checks and balances with regard to insulating the government from the passions of the majority was thrown off kilter. Acknowledging the tension between our values and the founders’ and between our amended Constitution and the original, we must raise the question as to whom, if anyone, got it right. Of course because it is the dominant opinion we are likely to say that a democracy is superior to a republic. After all, who is willing to say that we have regressed rather than progressed from 1789 to the present? But such courage is necessary if we are to examine the question with intellectual integrity. Therefore, one more reason to read The Federalist Papers is that it challenges our modern notions of what we think about the best means of governance. It forces us to question our foundational assumptions that might otherwise lie hidden from view. Paper 62 begins the discussion of the Senate. There has already been some reference to this paper above, but it deserves its own discussion as well. Publius intends to discuss, in order, the qualifications of Senators, the appointment of them by the state legislatures, the equality of representation in the Senate, the number of Senators and their term for which they are to be elected, and finally the powers vested in the Senate. This paper takes the first four and leaves the fifth to be addressed by later papers. Publius does not face much opposition on the first three points and therefore dispatches them fairly quickly. Because the Senate was intended to be the upper House, more stately and further removed from the people, and the House was intended to be more democratic and thus more raucous, it only made sense to have greater restrictions on who could become a Senator. To be eligible for the Senate a person had to be at least 30 years old rather than 25 as in the House, and a person must be a citizen for nine rather than seven years. “The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages” (#62: 374). This same argument is used

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to justify the election of Senators by state legislatures rather than by direct popular vote. “Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial to public opinion. It is recommended by the double advantage of favoring a select appointment and of giving to the State governments such an agency in the formation of the federal government” (#62: 375). In this regard, the Senators will be guided by their states’ interests which will ensure that the states are represented at the federal level and will not be overrun by the federal government. The paper concludes by discussing the equality of representation and the length of term and number of Senators. The basic argument put forth is that the idea of equality of representation was the result of a compromise between the big states and small states at the Convention that would ensure neither would gain an upper hand in the legislature. The number of Senators and length of time in office goes straight to the question of stability. Because Senators were to remain anchored to the Constitution, more so than the House which was to be anchored to public opinion, the terms and numbers were set up to provide internal stability that would help increase the level of debate—to move it from personal interests to issue substance. I will leave it for the reader to determine how well it has achieved its goal. Paper 63 states: A fifth desideraturm, illustrating the utility of the senate, is the want of a due sense of national character. Without a select and stable member of the government, esteem of foreign nations will only be forfeited by an unenlightened and variable policy. … Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body (#63: 380). The Senate is a bulwark against the more popularly minded House of Representatives: “[A]n institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.” And it is not unique to have an executive body, or a body further removed from the people, working alongside the representative body as a check. What is unique about the U.S. system, argues Publius, is its ability to check the power of

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the House with legislative, not just executive. “In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the people in their executive capacity” (#63: 382–3). In #64 Publius takes on the difficult task of defending the power of treaty making given to the President and the Senate. The President, with the advice and consent of the Senate, is given the authority to make treaties, and treaties are to have the force of law, thus binding the people to a decision made in a manner isolated from public influence. Publius begins by stating that making treaties in this way and giving them the force of law is a matter of practicality. In international relations and negotiations there is no time for deliberation and to wait for Congress to take action. The President must be able to act swiftly. In addition, because treaties are pacts made with other countries, there may be a need to keep things from public view that may either embarrass or threaten one of the involved countries. However, the argument seems to boil down to the simple fact that the people, viewed by the framers of the Constitution, were simply not sophisticated enough to be relied on in matters of high diplomacy. This is one of the fundamental principles of republican government that often goes unspoken but remains present within most arguments that favor republican government over democracy. Remember: the President and Senate were not directly accountable to the people, so putting the power of treaty making into the hands of these two entities was even further removed from the people, and thus democracy, in the eighteenth century than it is today. Publius tries to invoke the system of checks and balances as a safeguard against the President’s and Senate’s abuse of treaty-making power, but that check seems insufficient, even to Publius. Publius argues, as in earlier papers, that this power is justified in their hands, rather than in the people’s or in the House, and will not be abused, because, “As the select assemblies for choosing the President, as we as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens” (#64: 389). Yet “enlightened statesmen will not always be at the helm” is what Publius taught us in #10, which is why there need to be institutional and legal restraints. So the reason, Publius argued in the earlier essays, is that this new Constitution does not rely on chance or enlightened

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statesmen to produce good government, but rather a rational calculation of man’s nature that informs the institutional structure. Yet here in #64 we get just the reverse, a system that needs enlightened statesmen. Perhaps Publius was hoping his readers had bad memories and would not recognize the contradiction, but such a contradiction might force us to question the fundamental tenets upon which Publius rests his argument. It is an interesting historical aside that John Jay was at the center of one of the greatest international controversies around the time The Federalist Papers were published. The Treaty of Paris ended the American Revolution in 1783 once Great Britain and the U.S.A. signed; but there were still some loose ends and unfulfilled promises a few years later. Jay’s Treaty, as it was known, was signed in November 1794, passed through the Senate in June 1795, and took effect in 1796 after the British government and the American President gave their approval. The general terms of the treaty stipulated that British forces would withdraw from pre-Revolutionary forts in the Northwest Territory to which it had agreed in the Treaty of Paris but had continued to occupy in the following years, war time debts were to be sent to arbitration, and America was given trade access to British possession in the Caribbean, India, and elsewhere. While the Treaty did provide many advantages to the Americans, it caused a rift between the Jeffersonians and the Federalists that helped give rise to the first political parties. Jeffersonians favored the French and thought Jay’s Treaty tied the U.S.A. too closely with their former oppressor and enemy. Furthermore, James Madison argued that the Treaty should have been ratified by the House as well since it dealt with commerce and revenue. Madison and Jay stood on opposite sides of this dispute which took place only a few years after they collaborated on The Federalist Papers. This gives validity to the point that the founders, even those who found themselves for a time on the same side, were a heterogeneous group. So the next time somebody tells you what the founders thought, ask them which one. Papers 65 and #66 continue to deal with the Senate and each paper deals with the Senate’s role in holding impeachment trials for the President. The primary objection dealt with in #65 is why the Supreme Court is not better suited to be an impeachment tribunal than the Senate. Publius’ response is quite telling with regard to the constitutional role and powers given to the judiciary. The Supreme

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Court is an insufficient body to deal with impeachments because it will lack the fortitude to face down the executive who is in charge of appointing judges and who is in charge of enforcing decisions the Court hands down. In other words, the judiciary is too weak to handle this duty. It is much to be doubted, whether the members of that tribunal [Supreme Court] would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to class with an accusation brought by their immediate representatives (#65: 396). But #66 takes on more arguments to justify the Senate’s role in impeachment. Each of the four objections addressed in this paper centers on the idea that granting this role to the Senate would weaken the separation of powers by granting the Senate a judicial function and that it would weaken the balance the Senate is to serve to the President. Publius awkwardly addresses the first claim by stating that the Senate would still be checked by the executive, judiciary, and the House. And because the House is directly elected by the people, the people are more endeared to the House, which means that if the Senate errors in a way that harms the people the House will step in and rectify the transgression, though it is unclear under what constitutional justification for the action of the House Publius is here referring. On the second set of objections, Publius answers that with the turnover and the Senate, and with its natural tendency to check executive ambition, there is no need to worry about too cozy a relationship developing between the executive and the Senate that would prevent the Senate from discharging its duty of impeachment in a fit manner. The fundamental idea underlying the balance of powers logic put forth in #10 and #51 is what underlies the logic of putting the power of executive impeachment in the hands of the Senate. “So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of

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their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue” (#66: 405). What is probably most important to take away from #66 is a clear appreciation for Publius’ struggle to find a proper balance of power. He does not seek to advantage one branch over the other but instead he strives for a balance of power. In #66, and throughout the papers, we see that the balancing occurs because the powers of the executive, legislative, and judiciary are separated and also designed to check the others. Paper 66 offers insight into how this works: An absolute or qualified negative in the executive, upon the acts of the legislative body, is admitted by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may … be contended, that the powers relating to impeachments are … an essential check in the hands of that body, upon the encroachments of the executive (#66: 400).

The executive (Papers 67 to 77) “The constitution of the executive department of the proposed government claims next our attention” (#67: 405). In the first of 11 papers dedicated explicitly to the executive, Publius plans to set the record straight against inaccuracies promulgated by the opposition. There are more papers dedicated to the executive than to any other branch. Five papers are dedicated to the Senate, seven to the House, and six to the judiciary. This makes sense given that the new nation is quite wary of giving too much power to a single executive which might then turn to monarchy. Thus the critics of the constitution were wise to play on these fears and thus play up the perceived strength of the executive. It is the duty of Publius to dismiss the charges in the public’s mind, but Publius does not run and hide from the charge that the planned executive is a weak one. The best rhetorical strategy would be to say that the planned executive would not have that much power. But Publius’ principles force him to defend an energetic executive. There must be an energetic executive, for without one there cannot be a good country.

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Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy (#70: 421–2). The very existence of the country depends upon having an energetic executive; for if no other reason there must be a way to execute the laws, and a nation must be ruled by law and not by men, and the executive fulfills this objective. Paper 67 begins by defending the power of recess appointments. The Constitution gives the President the power to fill cabinet vacancies while the Senate is out of session, thus allowing the President to bypass the constitutional requirement of seeking the advice and consent of the Senate for such appointments. But recess appointments must expire at the end of the following session. Publius is quick to point out that recess appointments are temporary and therefore cannot cause much trouble. Recess appointments are a matter of expediency that all state governors of the time possessed. In other words, the Constitution was merely taking a cue from the states. But that didn’t stop the Anti-Federalists voicing their opposition to the plan. Cato, the pen-name for George Clinton, published his concerns over the recess appointment power of the executive in the New York Journal on November 8, 1787: Though the president, during the sitting of the legislature, is assisted by the senate, yet he is without a constitutional council in their recess. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites, or a council of state will grow out of principal officers of the great departments, the most dangerous council in a free country. How the President gets to office is just as important, to some, as the powers he has at his disposal when in office. If the President is not directly accountable to the people, then he is capable of great mischief regardless of formal powers granted to him. Paper

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68 defends the indirect election of the President. The President is elected not by the people but by the Electoral College, the members and the selection of which is to be determined by the states with the restriction that an elector cannot be in another position of public trust or profit. The Electoral College is still in place today and is ridiculed for not allowing the popular majority to decide the election. But the Electoral College reflects the founders’ distrust of democracy, or mob rule, as well as their attachment to keeping the states involved in the political process. The Electoral College makes the states significant in the selection of the President where a popular vote would render the states meaningless if the President were to be elected by a national majority. It was argued, by Publius, that this process would generate a person of higher moral character and political acumen than if the decision were left to the people, as the people are easily persuaded by methods which do not accurately reflect the character or leadership abilities required of the President. The people could not be trusted to select a president on their own, so they were not, and still are not today. To appreciate #69, and not to think it parochial, we must remember that Publius was directly addressing the people of New York. Given the audience, it makes sense that the dominant example relied upon by Publius in defending the executive in #69 is the executive of New York. The people of New York were, in general, happy with their state government and therefore could be persuaded to adopt the new Constitution if was shown to have the same virtues as the New York Constitution. Publius first establishes that, like New York, there will be no term limits for the President, which means that the President could be elected to as many four-year terms as the people chose. This was true in New York as well, except that the New York executive served a three-year term. Of course, George Washington set the precedent that presidents would not serve for more than two terms. This was true until Franklin D. Roosevelt, who was elected to four terms in office. FDR’s lengthy run as President led to the ratification of the 22nd Amendment in 1951 that limited presidents to two terms in office. On the second dimension of comparison Publius admits that the President would enjoy greater power of legislation than the Governor of New York. The President is able to veto any legislation congress passes whereas the New York Governor does not

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have the power solely in his hands. But Publius is quick to point out that the veto power is a qualified negative over the power of the legislature, as the legislature may override a presidential veto with a two-thirds vote from both houses. In addition, the power the President has over the military is qualified. Only Congress can declare war, and Congress holds the purse strings, which means that if it disagrees with the President’s use of the military it can withhold funding. Publius demonstrates how on this point, and all others he highlights, the President has less authority than the British monarch and similar authority to the Governor of New York due to the separation of power and checks and balances established by the Constitution. Whether it’s making treaties, appointments, or adjourning the legislature, the President cannot act unilaterally except in unique situations upon the expiration of which the President’s unilateral authority expires as well. But, by the end of #69 it is not clear if the Constitution gives the President more or less authority than what is enjoyed by the Governor of New York, since “it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the governor of New York” (#69: 420). But the matter is not settled, for in #70 the same subject continues but along different lines. The objection is raised by the Anti-Federalists that the executive should not be headed by a single person but should be a council, or a tribunal. Publius bristles at this idea, suggesting that a plural executive would be too weak and too unaccountable to the people. The job of the executive, as the name implies, is to execute, or put into force, those laws passed by Congress. In order to do this successfully, the proper amount of energy must reside in the executive, but that energy must be kept in check not only by the other branches but by the people at large by making it clear who made what decisions. “The ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers. … The ingredients which constitute safety in the republican sense are due dependence on the people, and a due responsibility” (#70: 422). Taking the usual strategy in disputing the claims of the Anti-Federalists, Publius relies on historical examples, particularly from Rome, to show how a plural executive lacks the energy to carry out its duties. What makes the examples so forceful is that they are supported, in this instance, by common sense. It stands

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to reason that a single individual will have an easier time taking action than a group—even a small group—of people. In a plural executive the laws may never be put into force because the executives may disagree among themselves. If such an instance were to occur, the law would fail to have the desired effect in the short term and the executive would likely crumble in the long run. A single executive would be a more powerful and more effective one in the long term. In addition, a singular executive would be more accountable to the people than a plural, for a plural executive could more easily “conceal faults and destroy responsibility.” In a plural executive each person would be looking to blame the other, whereas in a singular executive, if something goes bad, there is only one person to blame: “[T]he multiplication of the executive adds to the difficulty of detection. … It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall” (#70: 426). With this, Publius ends #70 and moves on to defend the duration of office for the President in #71 and 72. Three days after the publication of #70, on March 18, 1788, Publius begins to lay out the concerns over term length in #71. Publius begins by stating the problem: if the term is too long the President will not do what is best for the nation but what is best for himself. If too short, the President will have no incentive to do the job well, but merely bide his time until the end of the term and be susceptible to undue influence from the people and Congress if his term is not long enough. What might be surprising to some readers is that the concern is over term length when the real discussion should be on term limits. With the ability of incumbents to entrench themselves in office, it might not matter if the term is two years or eight years; if the President keeps getting re-elected the term in office could go on indefinitely, thus bringing about the first set of negative consequences established by Publius. Remember: it was not until 1951 with the ratification of the 22nd Amendment that the President was limited to two terms. However narrow-sighted #71 might appear at first blush, we should always remember that Publius warned in #1 that in writing he will keep his motives within the “depository of his own breast,”

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which means we should always be on the lookout for multiple lessons. One lesson in particular found in #71, and elsewhere when discussing the executive and the Senate, is the implied criticism of democracy. Paper 71 is not just about how long a President should serve before coming up for re-election, but rather the competing preferences of rule by the elite or rule by the people. In the second paragraph, Publius mocks those who suggest the President should be moved by popular opinion: But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion (#71: 430). The President should strive for the public good while keeping in mind that the public may not always know what is in its own good. Publius recognized that the people could be petty and have a short memory; thus something like presidential authority should be institutionally defined and insulated from popular influence. Publius would be abhorred by a President who “governed by the polls” in which he would pursue policies based on their popularity with the people. Presidents should be above such matters. Whether it is going to war or looking to reform health care, Publius suggests that the President should not be influenced by popular opinion. While he was a Member of Parliament, Edmund Burke held a similar position when he said, It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

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The opinion of the people should not guide the elected President; thus the President should have mechanisms in place to shield him from the public’s backlash, which is why the length of the term is so important to Publius. If the term is too short, the President would only do what was popular. Thus, in order to insulate the President from undue influence from the people, and from congress, the length of term needed to be set at four years. Of course, the topic raised in #71 was not exhausted and was picked up again, the very next day, in #72 in conjunction with a discussion of term limits. This is only appropriate, since “[t]his view of the subject will at once suggest to us the intimate connection between th duration of the executive magistrate in office and the stability of the system of administration” (#72: 434). With regard to term limits specifically, Publius changes tone in justifying a four-year term limit by focusing on the practical side of politics. It takes time to get things done and four years is the right amount of time for a president to push his agenda as far as the public is willing to let it go. If the term were any shorter the country would change directions too quickly by electing a new president, which would mean that very little, if anything, would ever get done, forcing the new nation to fall apart. In addition, on the international front, it is important to maintain the appearance of consistency when dealing with foreign officials. If presidential turnover was rapid, the U.S.A. would lose legitimacy in its dealings with foreign leaders who would never know with whom they were working or whether a former agreement would be honored. This is particularly important if one considers the mode of travel and communication at the end of the eighteenth century. To get a message from the U.S.A. to Europe could take several months. So imagine if the President was removed from office every two years. There would be only time to send three or four messages to a magistrate of a European nation which would not be enough time to get a treaty or pact in order. The discussion of the correlation between term limits and length of term, however, only takes up the first two paragraphs before #72 begins to focus on term limits exclusively. Opponents of Article II wanted to institute term limits on the President in which he would never be allowed to serve after his initial term or he would have to wait out an election cycle before becoming eligible to run for office again. Publius gives five reasons why this is a bad idea; the last two reiterate points made earlier in the essay, simply that it

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would cause too much disruption and inconsistency in the system, so to Publius, term limits made little sense. But, the first ill effect was much more pessimistic and reflects Publius’ cynical assessment of human nature. If there were no chance of re-election, the sitting President would simply utilize the office to improve his own station in life and enrich his friends and associates. There is no reason to secure the public good if one will never be held accountable to the public again. Re-election is an incentive, and if the President loses that incentive he loses at least one reason to serve the public good. A second potential ill effect that would come from limiting the President to one term is that an overly ambitious and unscrupulous man may seek to extend his term through illegal means. What would the country do if the sitting President simply refused to leave, or if he issued an executive order changing the term limit, or if the dominant party liked the sitting President and simply amended the Constitution to allow him to sit indefinitely? Publius believed that allowing the President to run for re-election would prevent such scenarios. The justification for this view requires the reader to remember earlier papers, specifically #10, in which Publius reveals his view of human nature as something nasty, as it is something which is always, and perhaps only, self-interested. Relying on this view of human nature, Publius justifies his opposition to term limits by extending the same logic used in #10 and #51. Man’s nature cannot be changed; thus man’s nature must be used against itself to help limit the negative effects of his natural self-interest. In this context, his self-interest will be best served by pursuing the common good, as that will give him the best chance of remaining in office for another term. In addressing the second ill effect in particular, Publius again allows his perception of human nature to shape his understanding of institutional design. Remember: men are nasty sorts of creatures governed by their passions, and governments should not wish men to be better than they are but take them as they are and create a system that will steer their passions to desirable ends. Men’s passions can be made useful by pitting passion against passion in an institutionalized and controlled format. When discussing the re-eligibility of the President, Publius shows how different passions can counteract each other in order to reach good policy. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and

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arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from undertaking, when he foresaw that he must quit the scene before he could accomplish his work. … Add to this, that the same man might be vain or ambitious as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them [passions], to his appetite for gain (#72: 436). The third ill effect is that it would prevent the accumulation of relevant experience unique to the office. Think of how difficult it is to elect a good president, and to assess who might be a good president during the election cycle. One reason why it is so difficult to predict who will be a good president when trying to choose between two or more candidates is because there is no other job in America quite like it. The qualities and skills that are required to be a good president, along with the tasks a president is asked to deal, with are unique. So, once a president has some experience and proves he can do a good job, it would be a disservice to the nation to not allow him to serve again. After considering the term and the nature of the office, Publius must defend certain powers granted to the President under the Constitution beginning in #73 with the veto power. But, because it is not enough for the President to have competent powers so that the proper energy may be in the office, #73 begins with a provision in the Constitution that protects the executive from Congress. Because Congress has the power of the purse, which then means it has the power to increase or decrease the President’s salary, the framers of the Constitution thought it prudent to include a provision which states, “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them” (United States Const., Article II, Sec. 1). This provision would allow the President to act independently and not be pressured or bribed by Congress who could either increase or decrease his salary to get what they wanted from him. This would help keep the executive independent from the legislative.

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Paper 73 moves quickly to the question of veto after showing that the President is properly insulated from undue influence from Congress or the states with respect to his salary. In #70, when Publius listed the conditions necessary for providing enough energy in the executive, he listed “adequate provision for its support” as the third necessary condition. It is here that we get the last of these provisions as the veto is a power that will make him a competent actor who can stand up to Congress if it manages to pass a piece of legislation which runs counter to the common good. There are two primary reasons for giving the President this power. “The primary inducement to conferring the power in question upon the executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design” (#73: 442). The first of these is a check on Congress’ power to infringe on executive authority. The second is a reflection of Publius’ skepticism of the people and those closest to them. One objection to democracy is that the people are capricious and make decisions with little regard to long-term considerations but instead act impulsively. And because this is a characteristic of the people, it will also be a characteristic of the House of Representatives who are directly elected by the people and to a lesser extent the Senate. It is the President’s job to make everyone stop and think. Once a piece of legislation passes through both Houses of Congress in identical form it goes to the President. The President can either sign it, in which case it becomes law, or he can veto it, in which case it goes back to the two Houses who can override the veto with a two-thirds vote from each House which will then make the bill law. Barring a veto override, the vetoed bill will die and not become law. The ability of Congress to override a president’s veto, as noted also in #69, makes the veto a qualified negative and therefore does not give the President absolute control over legislation. This is restated in #73 to help soothe the worries of those who think this power will make the President a monarch. But Publius is also quick to point out that even the monarch in England has an unqualified veto authority which is rarely used. Publius thinks it will be used prudently in the U.S.A. as well, since the President is tied to Congress through various institutional dynamics which encourages cooperation rather than antagonism.

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The shortest of all the papers dedicated to the executive is #74. In this paper Publius quickly dispatches concerns over the President’s role as commander-in-chief of the military and his pardoning power. As for the first, the nature of the executive branch, and the President at its head, is to enforce the laws passed by Congress. So once Congress has declared war, and provided for its funding, it is the job of the President to act as the head of the military to carry out Congress’ orders. The military could not be an independent agency for fear it would turn against the citizenry or the government, which means it must come under the command of an elected official; in this case, the President. In addition, there is no fear of the President using the military against the wishes of the people since he is held accountable by them, because the consent of Congress is needed for an act of war and military funding. As for pardons, the only dispute seems to be over issues of treason, to which Publius responds: It is not to be doubted that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment than any numerous body whatever. … In every such case we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense (#74, 447). As is consistent with earlier papers on the executive, Publius makes the argument that the people, perhaps in a fit of patriotic fervor or wartime paranoia, may exact too harsh a penalty, or reach too hasty a verdict on an individual charged with treason. In these instances the President, who is more deliberate and even-tempered due to his isolation from the people, should thus be given the responsibility over offering pardons, particularly in cases of treason. In #75, Publius revisits a topic addressed earlier in #64 which is the making of treaties. The issue was first raised when the Senate was being discussed, since the Senate is supposed to give the President advice and consent on treaties. Publius’ tone in #75 seems to be one of impatience with the Anti-Federalists and their inability to let the topic go, or to be persuaded by his argument. “As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a

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discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks” (#75: 448–9). There are three broad objections to the plan: (1) the President alone should have the authority, (2) the Senate alone should have the authority to make treaties, (3) more people should be involved in the process. The first two were taken up extensively in #64 where he discussed why it was necessary to have the powers of the President and Senate intermixed when making treaties. But he reiterates the general point when he writes, “It [treaties] relates neither to the execution of subsisting laws nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations which have the force of law, but derive it from the obligations of good faith” (#75: 449). But more generally, the President alone should not have this power unchecked by the Senate since he may abuse the power, thus reflecting Publius’ overall suspicion of unilateral authority which inspired the separation of powers model. “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States” (#75: 450). Conversely, because relations with foreign nations must be handled discreetly, sending the entire Senate to engage in negotiations would be ridiculous, which is why the Senate alone cannot have this authority. The Senate serves in an advisory role to make sure the decision reached between the President and his foreign counterpart serves the nation’s interest. Similarly, Publius rejects the claims that the treaty-making power should be extended to include the House of Representatives. The House, with its large number of members and frequent turnover, is no place for diplomacy to occur, as the interests of House members are too localized and they are not in office long enough to take part in serious diplomacy or treaty negotiations. Paper 76 continues with the President’s interaction with the Senate, but this time it deals with the appointment powers of the President in Article II, Section 2 of the Constitution. The ability to produce a good administration is the true test of a good government according to Publius, and the best way to form a good administration is through the method prescribed in Article II,

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Section 2: “It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union” (#76: 453). Publius’ justification for placing the appointment power in the hands of the President is based upon a presumption of the President’s character that is inconsistent with his view of human nature expressed in those instances where he is calling for a separation of powers and checks and balances. In this paper, Publius states that: one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment. … The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. … He will have fewer personal attachments to gratify than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and affection (#76: 454). This is a long-winded way of saying that the President will be less likely to put friends and confidants into positions of power than members of Congress would be. But, as #10 pointed out, “an enlightened statesman will not always be at the helm,” which is why the advice and consent of the Senate is required except for recess appointments. The concurrence of the Senate “would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President” (#76: 456). One would have thought this matter would be put to rest, but, alas, again in #77 Publius feels compelled to defend the system of checks and balances between the Senate and the President one last time. Publius demonstrates how this intermingling of powers will facilitate stability and a peaceful transition of power. “The consent of that body [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of offices” (#77: 458). To demonstrate his point he uses the failure of the New York system to show what happens when a single small body is in charge of making appointments.

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However, just as the appointing body cannot be too small it cannot be too big either, which is why the House of Representatives is not included in the process just as it was not included in the process of making and ratifying treaties. “A body so fluctuation and at the same time so numerous can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all when it is recollected that in half a century it may consist of three or four hundred persons” (#77: 461).

The judiciary (Papers 78 to 83) Publius finally leaves the elected branches of government when he turns to the judiciary in #78. Ending a discussion of the three branches of government with a discussion of the judiciary fits with the outline of the Constitution which deals with the judiciary in Article III, following the executive in Article II and Congress in Article I. To Publius, there are not many particulars to discuss, since Article III sets forth only a skeleton of a judiciary with little mention of its overall job or structure. It leaves Congress in charge of the rest. Much of the judiciary’s structure has taken shape through congressional action such as the Judiciary Acts of 1789 and 1891 and the Judiciary and Removal Act of 1875. Most of how we view the judiciary’s power is shaped by The Federalist Papers which set the contours of the debate for much of the constitutional dialogue that would follow, but even more so with the judiciary. Publius’ understanding of the judiciary borrowed from the jurisprudence of Lord Coke and William Blackstone in England as well as the Enlightenment principles put forth by Montesquieu. What resulted was a unique vision of the judiciary which would go on to become an active part of government, specifically through judicial review, an action not mentioned in the Constitution but one that would be established as a precedent by John Marshall’s majority opinion in Marbury v. Madison. Because the U.S.A. created the model of the independent judiciary that has since been adapted in nearly every nation with a representative system of government in the world, it is important to spend more time examining the intellectual heritage and justification for the American judiciary as well as situating it within

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the broader dialogue of The Federalist Papers. To give the student a better understanding of the importance and uniqueness of the American judiciary I will break from the format which has taken us up to this point and provide a more broad, theoretical treatment of the judiciary before turning to the format which has brought us to this point. One cannot deny the influence of Montesquieu and William Blackstone on the thinking of the American founders, particularly when it comes to the development of the separation of powers and an independent judiciary. These two men were cited more than any other Enlightenment thinkers. Moreover, if we are looking for an indication of America’s departure from the English common law the reader should recognize that Blackstone is referenced six more times by the founding fathers than is Lord Coke. However, such a superficial analysis will never do to convince the discerning reader, and even if it could, it leaves too many questions unexplored to be interesting. Furthermore, the founding fathers were more than scribes; they were political philosophers in their own right. And it was their quality as original thinkers that allowed them to develop a system with an independent judiciary. So, on the question of what was possible, Publius departs from Montesquieu and Blackstone while still borrowing from them to develop his idea of an independent judiciary. Whereas Montesquieu and Blackstone used history as a tool to transmit their teachings and as the basis for their philosophy, Publius sought a clean break with the systems of the past in an effort to create a system founded on a new political science. Montesquieu sought to replicate history in his system of separated powers, and he attempted to use the judiciary as a facilitator of moderation much in the same way history had functioned to balance the extremes. He learned from history how things naturally progressed, and institutionalized those lessons into a system of governance so as to create a government that would achieve liberty without having to rely on fate or fall victim to the unpredictability of history. Blackstone saw history in much the same way as Montesquieu had, but limited the role of history more than Montesquieu had. Even after Montesquieu established his new system, he did not deny that history and other factors could still affect the character of a people, which is why he says it is the job of a good ruler, or a good system, to adapt to these variables.

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Blackstone, however, seems to say that when the system he created is implemented, there is no room for outside forces to become involved, as all variables are controlled for in a proper system. When we arrive at Publius we find a thinker who considers all previous attempts at governance to be failures. Publius believes that the system created by the United States Constitution is far superior to any that has existed before and it is the advances of the science of politics that have allowed the founders to isolate and correct the deficiencies of past republics. Publius sees no need to be confined by the lessons of history; instead he seeks a clean break. Publius falls in line with Montesquieu and Blackstone in his reliance on the proper institutional design to perpetuate a strong system of government. Publius does not rely on the virtue of the rulers or the people; instead he seeks to replace the need for virtue with institutional design. The institutional design proposed by Publius is heavily influenced by Montesquieu’s separation of powers design, and he uses the judiciary in much the same way as both Montesquieu and Blackstone. The judiciary serves as the moderating force for all three men. While it is accepted knowledge that Montesquieu and Blackstone had some influence on the thought of all the founders, not just Publius, it is Publius who follows most closely the teachings of Montesquieu and Blackstone while also branching out on his own. While Montesquieu and Blackstone both use historical examples to make their point about the need for various reforms, and to transmit their philosophical teachings, Publius uses historical examples only to show that the past attempts at governance have been wrong which is why a new political science is necessary. For Publius the only lesson to be taken from history is that we should not duplicate what has been done before, and instead build on a new foundation in order to make a new system of politics that is better than any system previously known. It is impossible to read the history of the petty republics of Greece and Italy, without feeling the sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions, by which they were kept perpetually vibrating between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrasts to the furious storms that are

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to succeed. … The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients (#9: 66) While Publius’ treatment of history may seem pretentious or dismissive it was this break with the past that allowed him to formulate an independent judiciary. Had Publius sought to do what had already been done, then the new Constitution would have been much less impressive and would not have become one of the most important developments in representative government. Not only did ancient republics not understand these principles, the Articles of Confederation, which the Constitution was intended to replace, did not apply these new principles. Publius was worried about how the rule of law would survive in the earlier American confederation since it lacked a strong judiciary, and a strong judiciary was important since the administration of the laws is the “cement of society” (#17). He goes so far as to say that the want of a judiciary power in the earlier American confederacy is its chief defect. A circumstance which crowns the defects of the confederation remains yet to be mentioned … the want of a judiciary power. Laws are a dead letter, without courts to expound and define their true meaning and operation. … Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. … To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort an uniform rule of civil justice (#22: 145–6) This passage reflects not only the central importance the judiciary serves in Publius’ thought, but also how far his thought has departed from traditional common law thinking to approximate the liberal thought of Blackstone and Montesquieu. First, uniformity is inimical to the common law tradition; a central

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characteristic of common law was its adaptability to local interests, something uniformity cannot accomplish unless all local interests are uniform. Second, “one tribunal paramount to the rest” is not a common law system. Common lawcourts were by definition local courts that made decisions at the community level; they were intended to handle matters of justice which central powers could not handle adequately. Finally, in the common law tradition, courts do not “declare” law or a “uniform rule of civil justice.” The idea that courts can declare law is direct evidence of the influence of Blackstone’s theory of a judiciary that is the sovereign lawmaker. Publius places the judiciary at the heart of the government and lawmaking. It is the judiciary that serves as the moderating force between the other two branches and between minority and majority factions. For all the talk about how to control the effects of factions in #10 and #51, in #78 we see the judiciary introduced as an important means for controlling the effects of factions. The judiciary, it should be remembered, is independent of popular influence. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority … the judicial magistracy is certainly one of the most valuable modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of a prince: in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws (#78: 466). In Publius’ scheme the judiciary is treated as, in Blackstone’s terms, the depository of the law. But even more than a depository, the judiciary plays an active role in holding the system stable and maintaining national supremacy. The authority granted to the federal judiciary becomes undeniable when one reads closely. When Publius is writing about the need for the national government to have superiority over the state governments, it is through the judiciary that this can most successfully be accomplished.

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It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the union … must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support, those passions, which have the strongest influence upon the heart. It must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is entrusted, that are possessed and exercised by the governments of the particular states (#16: 111 [italics added]). As was seen in #22, it is through the federal courts that uniformity in the laws will be maintained, and this uniformity will help tie the people to the national government. The need for uniformity in interpretation of the laws is repeated in #80, when Publius compares 13 states with their own power of interpretation to a hydra. In #80, he makes it a point to state that the power of the judiciary must be at least equal to that of the legislature. But he seems to place the judiciary above the legislature when he gives the court power to review legislative actions, then quickly denies that judicial review would give the judiciary supremacy over the legislature. “Nor does this conclusion by any means suppose a superiority to the intention of the judicial to the legislative power” (#78: 466). Publius’ treatment of the judiciary in #78 is not quite convincing. I say this because he continually states that the judiciary will not be able to exert its will over the legislature or the Constitution, but the argument progresses in such a way that one is almost forced to draw the conclusion that the judiciary does in fact have control over both the legislature and the Constitution. First, the Constitution is the supreme law. “No legislative act therefore contrary to the constitution can be valid. … A constitution is in fact, and must be, regarded by the judges as a fundamental law” (#78: 466). Second, the judiciary makes all decisions when there is a constitutional question. “It therefore belongs to them [the courts] to ascertain its [constitution’s] meaning as well as the meaning of any particular act proceeding from the legislative body” (#78: 467). The judiciary has the power to determine which of two contradictory laws is valid. Judges are free to make decisions according to

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their will. Publius warns that “[t]he courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body” (#78: 467). One might expect Publius to follow this up with some restriction to prevent judges from making judgments according to their will, or some condemnation of judges who do exercise their will outside the boundaries of the law, but he provides neither. What Publius leaves us with is this: the Constitution is supreme law, making statute law subordinate to the Constitution, which makes the legislature subordinate to the Constitution, since the legislature’s authority arises from its ability to make statutes. The Court decides the meaning of the Constitution, which means that the meaning of the Constitution is defined by the Court, as there is no reference to higher law which would hold the meaning of the Constitution stable. Since the judiciary defines the Constitution, judges have authority over the Constitution, thus giving them power over the legislature and statutes, as the power to define seems to be the power to control when it comes to constitutionalism. Furthermore, there is no restriction placed on the judiciary which would prevent it from enforcing its will upon the Constitution, nor is there punishment for doing so. In fact, “[t]he rules of legal interpretation, are rules of common sense, adopted by the courts in the construction of the laws” (#83: 495). Common sense, not precedent, or logic, or reason, is what judges should use to construct laws—according to Hamilton—and Hamilton gives courts the power to construct laws, something not given to them in a traditional common law setting.2 Publius moves away from common law thought and closer to Montesquieu and Blackstone, but Publius seems to move past Montesquieu and Blackstone in the sense that he is willing to break with the past even more definitively than were his two predecessors, and he is willing to grant even more authority to the judiciary than either Montesquieu or Blackstone. What separates Publius from Montesquieu and Blackstone is less reliance on moderation or history. A lingering question must be: Why does Publius grant so much authority to the judiciary? One answer could be that he followed the thought of Montesquieu and Blackstone, was compelled by their reasoning, and took their lessons to the extreme. This answer may be true, but it tells us very little about Publius’ reasoning.

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Another answer could be that he saw the judiciary as the best way to promote a national government. I have shown that this too is plausible, but I would also argue that the answer is incomplete. Both of these answers extend from what I consider to be the most accurate approximation for why the judiciary is central to Publius’ government. Publius requires that reason be present, at least somewhat, in order to give direction to the system and to make sure that the passions are properly balancing one another. Reason is the ultimate check on government action, but reason is not present in all those who govern; only the judiciary can be relied upon to harbor reason. Publius makes his opinion of the “learned profession” quite obvious, but his reliance on the judiciary to promote reason is not made quite explicit, and must be derived from the duties he gives the judiciary.3 When Publius makes the point that the “learned professions” ought to be the office holders since they “truly form no distinct interest in society…they will be the objects of the confidence and choice” (#35: 211) it can be safely assumed that he is referring to lawyers, as they were the most prominent profession within the state legislatures at the time. Adding strength to the assumption is #78 which praises the virtues of attorneys while making the argument in favor of a strong and independent judiciary. Since the virtues of the learned professions are praised, we can then conclude that these virtues will carry over when these men assume office; however, this is an indefinite conclusion since the passions of men can overtake their reason, especially when they assume office. However, we can logically deduce from what information has already been presented that the judiciary will maintain more reason than the other branches. The path of deduction flows like this: reason is embodied in the Constitution into which the founders injected their reason while creating the system, the judiciary is supposed to interpret and define the meaning of the Constitution, this process of interpretation makes them the beneficiaries of the founders’ legacy, the legacy of the founders is reason which the judiciary would have to inherit in order to interpret the Constitution, each time the judiciary interprets the Constitution it is essentially “refounding” the Constitution which makes the judges founders by extension of their interpretive powers. However, the closest thing we get to a direct statement that the judiciary is the reason within government

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occurs in #49 where Publius makes the point that judges embody reason in the government, and the legislature reflects the passions of the people. Paper 49 is concerned with frequent appeals to the people, and that if the people are consulted too frequently their might be instability. In fact, when there is disequilibrium in the Constitution, the people cannot be relied upon to correct it, since it is the people, or attempted appeals to the people, that created the problem in the first place. The legislature is the most likely to breach its limits which would result in disequilibrium, since they are the branch which is closest to the people. “The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people. Their connections … embrace a great proportion of the most influential part of the society” (#49: 413). But it is the judiciary who “are too far removed from the people to share must in their prepossessions” (#49: 313). Both the executive and the legislative might fall victim to temporary popular opinion which would result in “[t] he passions, therefore, not the reason, of the public, would sit in judgment” (#49: 314). And it is argued in #49 and in #78 to 83 that the institutional constraints built into the judiciary are too strong to allow for this sort of popular infiltration, thus preserving reason in the judiciary. For Publius, judges do not always possess reason, but they make reasonable determinations more often than the other branches due to their deliberative nature and removal from popular influences (i.e. the institutional design of the judiciary). I do not intimate that Publius requires a philosopher-king. Like Montesquieu and Blackstone before him, Publius makes it clear that liberty and stability can be achieved in the absence of great statesmen so long as the proper institutions are in place. Reason is present within the system itself. The plan which the government is based upon is one where reason becomes institutionalized. The system created will pit passion against passion, branch against branch, and faction against faction; this will create a stable environment resulting in a government that will promote the common good. In order to create a system of government that will achieve these ends, reason among the founders is required in order to create a system that embodies reason, a system that will perpetuate the reason of the founders.4 It is in #49 that we see Publius making the point that a founding requires reason to

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sit in judgment (#49: 311). But while the direct textual evidence is slim, one can put the pieces together in order to show that Publius did require the founders to have reason and interject it into the Constitution. Publius thinks the efforts in Philadelphia were superior to other founding efforts, as they were writing a Constitution deliberately with a broad view of government in mind, and they were informed by the lessons learned from a “new science of politics.” However, Publius does not expect this sort of knowledge and deliberate action to continue, as that is the whole point of establishing a government with institutional checks on human nature, which he considers to be dominated by passion in most instances. As much as he criticizes human nature for being ruled by passion, he applauds himself and the other founders for possessing a clear understanding of human nature and how to properly control its ill effects. This means he must attribute reason to himself and the other founders, since it is reason that has enabled them to create a system which controls passion through a scientific understanding of politics. It is possible for a nation to establish a stable system which promotes liberty through a favorable turn of history, such as what happened in Montesquieu’s England or during the reign of Louis IX, but in order to create such a system intentionally, the founders must possess an understanding of the new science of politics that Publius had explicated throughout The Federalist Papers. To state more directly, Publius argues that prior to the creation of this new science of politics, it was only through random turns of history that a nation could have a government that would promote liberty and stability. But by applying the knowledge that he possesses, a government can be created which promotes liberty and stability through institutional design. While this is certainly consistent with Montesquieu’s ambition, Publius departs somewhat from Montesquieu by taking another step, moving further away from a reliance on history. According to Publius, even history cannot create a system that will be stable; a nation may enjoy stability from time to time, but that nation will eventually fall. It is only through the application of reason that stability will endure. Thus not only will reason replace history but it is superior to history, according to Publius. Publius’ answer to the question of how to establish a stable regime without destroying liberty appears to be certainty, which means the forces of history must be eliminated and replaced with

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human constructs that are designed to balance the vices of human nature. But did Publius sacrifice liberty for certainty? When we think of the judiciary today and its constitutional implications we think of it as the final arbiter of the Constitution. When there is a dispute that involves the Constitution we go to the Supreme Court. This power is immense and the abuse of this power in the judiciary’s hands can be devastating. No one understood this more than Anti-Federalist Brutus: This government is a complete system, not only for making, but for executing laws. And the courts of law, which will be constituted by it, are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them to execute all their decisions. The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of judicial power (Ketcham 1993: 293). The judiciary, worried Brutus, would decide how the people understood the Constitution and would decide its affect upon them. The gauntlet had been thrown down and Publius must defend the Constitution against this charge. This section began with a broad analysis of the judiciary within Publius’ scheme. The intention is to show just how unique and important the judiciary was for Publius. What follows is an analysis of papers 78 to 83 that returns to the format that has been followed throughout. Paper 78 begins to defend the judiciary against its critics in the same manner Publius has defended the other branches of government, by itemizing the objections then addressing each in turn. The first objection is the manner in which the judges are appointed. However, since they are appointed in the same manner as other officers, namely appointed by the President and confirmed by the Senate, Publius sees no reason to go into the matter further as he considers the point settled. The second point which receives more attention from Publius is the tenure of judges. Federal judges receive lifetime appointments and can only be removed through impeachment procedures. Publius positions the judiciary as the least dangerous branch, as it has power of neither the purse nor the sword, which means it

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cannot enforce the laws or make the laws; the judiciary is subservient to the other two popularly elected branches. Thus there is no harm that can be done in giving judges life tenure. But giving life tenure has a positive effect on judges as well. The judiciary is understood, at this point, to be a passive branch that sits in judgment above the political fray. To maintain its status as an impartial judge it cannot be susceptible to the whims of the majority which means a lifetime appointment is imperative if it is to maintain its impartiality, since if it had to worry about public opinion it would allow the majority to cloud its judgment on the law. Each of the other two branches, to a greater or lesser degree, is to be held responsible by the public. The law, and the Constitution in particular, should be, according to Publius, applied and interpreted independently of the majority’s will. The assumption is that the majority can go off track from time to time and the Constitution is supposed to get it back on track when it does deviate. “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like” (#78: 465). The only branch of government which can preserve the Constitution is the judiciary, so long as it is insulated from public opinion. “[I]n a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws” (#78: 464). The tenth paragraph of #78 seems to change topics from discussing life tenure to the implications of judicial review. But the discussion of judicial review does contribute to the overall argument that there is no danger in giving judges life tenure. The reason for this seemingly odd rhetorical turn is because Publius was writing in reaction to detractors of the proposed Constitution and the most persuasive arguments against the judiciary were those that discussed the ability of the judiciary as constructed in Article III to strike down a legislative statute. The most sophisticated objections to the judiciary were put forth by an Anti-Federalist writing under the pen-name of Brutus. Brutus is thought to have been Robert Yates, a judge from New York, so it only stands to reason that a judge would be most informed and concerned with the role of the

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judiciary. Brutus wrote 16 papers to the people of New York from October 18, 1787 to April 10, 1788 with his eleventh, twelfth, and fifteenth papers addressing the judiciary. Brutus’ papers on the judiciary were published between January and April of 1788 which gave Publius plenty of time to have thought about his response before publishing #78 on June 14, 1788. Brutus does not derive his expectation of the judiciary from any specific powers described in the Constitution, as the document does not give the judiciary the power of judicial review; rather, it is an implied power. Publius does not dispute this point but takes it as an opportunity to defend judicial review as a necessary condition for constitutional government while showing that the power poses no danger to the people or to any other branch. To begin his defense of judicial review Publius has to establish that the Constitution is the supreme law of the land. He does so without referencing the Supremacy Clause in the Constitution (Article VI, Section 2) but by an appeal to common sense: No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize but what they forbid (#78: 466). Thus it is the judiciary’s job to decide when laws conflict and to side with the Constitution over legislative laws when there is a conflict. This power cannot be entrusted to Congress since Congress passes laws, and to allow them to sit as judges upon their own laws would guarantee a biased hearing. And it cannot be entrusted to the President, since the executive cannot be given this discretion without making him more powerful than Congress, as it would put the power to judge and execute the law within the same branch. In addition, because the judiciary is charged with nullifying unconstitutional laws passed by Congress and signed off by the President the reason for their lifetime appointment becomes even clearer. In order to maintain their independence, and thus their ability to interpret the Constitution impartially, judges must have lifetime appointments. Paper 78 concludes on this point and has

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since become one of the most influential defenses of judicial review and an independent judiciary in Western political thought. Having established the need for judicial independence, and thereby defining the role of a judiciary in a republic, Publius turns in #79 to the issue of salary for judges for “a power over a man’s subsistence amounts to a power over his will” (#79: 471). Congress is in charge of setting the salaries of judges but Congress cannot reduce a judge’s salary while he is serving in office. This means that raises and stagnant salaries are possible but Congress can never reduce the pay of judges; thus Congress cannot use the power of the purse to punish judges with whom it disagrees by taking money away from them. This, along with life tenure, and restrictions on impeachment to include only malconduct and not competence or ability, leaves the judiciary independent of the other branches to the degree necessary for it to be a check on the other branches. Because the judiciary had power over neither purse nor sword it was important that their station remain insulated from the effects of the other branches. If the other branches could threaten their employment or salary the judiciary would no longer remain independent. Taking a person’s livelihood, or salary or property, was, as Publius pointed out early in the essay, just as good as taking away his will. The right to property is paramount to the protection of liberty for those in the founding era. We know that in pre-Constitution America there was a high value placed on property as one commentator wrote: “The right to property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of liberty” (Lee 1775: 14). It is safe to assume that little changed from the Revolutionary era to post-Constitution America with regard to the people’s disposition toward property if 100 years later Alexis de Tocqueville could still be accurate when he wrote, “[i]n no other country in the world is the love of property keener or more alert than in the United States, and nowhere else does the majority display less inclination toward doctrines which in any way threaten the way property is owned” (Tocqueville 1969: 638–9). This sentiment in Tocqueville’s era was reinforced by such jurists as Joseph Story who remarked, “Indeed, in a free government, almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen” (Story 1833: Section 1790). But we need not move to Tocqueville or Story for evidence just yet, as influential

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statesmen in the early republic commonly remarked, “Property must be secured or liberty cannot exist” (Adams 1851: 280). These all echo the sentiment expressed in #79 and earlier in #10. And when writing in his own name Hamilton wrote, “[o]ne great object of government is personal protection and the security of property” (Hamilton 1937: 302). Of course, Hamilton and Adams were not alone; John Rutledge said, “[p]roperty was certainly the principal object of society” (Rutledge 1980: 191). Although a discussion of the powers of the judiciary was raised in the previous two papers, in #80 a fuller treatment of its duties is to be discussed. To address the question Publius takes in order those areas of jurisdiction granted to the judiciary under Article III. The judiciary shall hear all cases in which U.S. laws are concerned. The implication is that the state courts could handle the case load with regard to U.S. laws if there were no judiciary. However, such a scenario would pose a threat to the union as there must be a common arbiter shared by all states in order to prevent dissension and settle conflict between the states on legal matters. The second consideration is an offshoot of the first. The court ought to hear cases regarding the execution of the laws. To leave this in the hands of the states would be just as threatening in this case as it would have been in the first. Publius appeals, implicitly, to John Locke and Montesquieu in arguing that the judicial power must be present in a government and held separate from the other branches. To deny the national government a judiciary with the authority to decide on matters concerning the execution of the law would undermine its very status as a government. As to the third point, Publius responds, “Controversies between the nation and its members or citizens can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum” (#80: 475). Publius is probably right in concluding that a national judiciary with jurisdiction to hear cases in which the U.S.A. itself is a party is so well grounded in common sense that an extended defense is not needed. The fourth set of cases that may be heard by the national judiciary are those concerning the peace of the nation. So whether it is cases with foreign nations and a state, between states, or between citizens of different states, the national judiciary will have jurisdiction. “This is no less essential to the preservation of the

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public faith than to the security of the public tranquility” (#80: 475). The disputed point is why the national judiciary and not a local judiciary should have jurisdiction if a crime is committed by a foreign official. If it is a local law that is violated then it was argued by the Anti-Federalists that the states ought to have jurisdiction. Publius argued that the conviction of a foreign official could ignite an international incident leading to war; thus such cases should be left in the hands of the national government which has final authority on foreign relations. One might expect Publius to now turn to the fifth point listed in the first paragraph of #80 but he makes the odd omission and moves on to “proceed to test, by these principles, the particular powers for which, according to the plan of the convention, it is to be composed” (#80: 478). Publius begins by citing the section of Article III which further defines the types of cases the judiciary ought to hear. The first set of cases, which corresponds to the first two principles laid out in the opening of #80, are “all cases in law and equity, arising under the Constitution and the laws of the United States.” Having settled the question of law earlier Publius feels the need to address what types of equity cases might arise under the Constitution or national laws. Brutus expressed concern over this clause, since giving the same court power to hear cases arising from law and equity was a break from tradition and could present some problems moving forward. “By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to words or letter” (Ketcham 1993: 295). By merging law and equity, Brutus argued, the new judiciary would not be constrained by anything other than its own opinion and thus untethered from the Constitution entirely. At common law there is a law/equity distinction which was well known to the colonists who had inherited the British common law system and the legal theory of William Blackstone. Such a distinction seems foreign to modern readers who do not have legal training. Equity cases are those that seek a remedy beyond legal remedies. Because the law as established may not speak directly to a particular case, or may not, when applied strictly, be just, equity is sought. Publius uses the example of a contract. In private dealings that are bound by contract there may be issues that arise that the law has not spoken to because the situation is unique.

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Thus, if one party of the contract partakes of fraudulent behavior that has yet to be defined as fraudulent by the law, the other party may seek an equitable remedy to nullify the contract. “There is hardly a subject of litigation between individuals which may not involve those ingredients of fraud, accident, trust or hardship, which would render the matter an object of equitable rather than legal jurisdiction” (#80: 479). Brutus agrees with this point, but thinks the law/equity distinction ought to be maintained so as to prevent a judge from abandoning the law, even when the law deals adequately with a problem, in order to support his own interests through equity. Publius does not entirely dismiss this possibility. The rest of #80 does not provide an argument but a simple statement of what the Constitution says and where each category of cases itemized in Article III fits into principles established in the opening. A week after #80 was published, on Saturday, June 28, 1788, Publius published #81 in the Independent Journal. Paper 81 takes up additional charges lobbed at the judiciary by the Constitution’s opponents and Publius goes into more detail defending the judiciary. Some of the debate that takes place in #81 incorporates legal terms that are either outdated or unfamiliar to anyone but a legal professional, thus making it somewhat difficult to follow. Perhaps this is why #81 is not among the most frequently cited, which is unfortunate, because much of what it says has a direct bearing on how the judiciary has developed and on how we view it today. Publius first defends the judiciary against the charge that the courts will be free to interpret the law according to what judges view as the spirit of the Constitution. It is true, as Publius writes, that “there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution” (#81: 481). But it is equally true that there is no syllable in the plan that prohibits such jurisprudence. Publius moves on to suggest that the criticism derives from the court’s construction as independent of any elected body. This does not directly address the criticism or elaborate upon his response, but simply side-steps the issue all together so that the author may address a question with which he is more comfortable defending, that being the structure of the judiciary. Publius defends the independent judiciary on practical grounds by stating that a person who has dedicated his life to studying

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and practicing the law is better equipped to make decisions with regard to the law than an elected official, so it only stands to reason that the judiciary should be independent of the legislature. Furthermore, as Publius often does, he lists all the states that have an independent judiciary: New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Absent from this list is New York, which Publius does not draw attention to. Publius quickly dismisses the charge that the legislature will not be able to correct errant judicial opinions, as nothing in the Constitution states that Congress shall not pass laws that run contrary to judicial precedent and that the danger of judicial encroachments upon legislative authority is a “phantom.” Publius, still in #81, turns to a separate issue of whether Congress should have the ability to establish courts inferior to the Supreme Court as prescribed in Article I, Section 8. The alternative would seem to be to allow states to create federal courts within their states, but this, as Publius suggests, would make them mere instruments of the state and not federal courts. “[T]he most discerning cannot foresee how far the prevalence of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover that courts constitution like those in some States would be improper channels of the judicial authority of the Union” (#81: 485). Following this statement the paper turns to a defense of the manner in which judicial authority is distributed between the Supreme Court and the inferior courts. The Supreme Court will only have original jurisdiction, which means it will be the first court to hear a particular case, when there is a case affecting an ambassador, public minister, or consul, and where states are a party. And because such cases will be rare there is no concern about the Supreme Court having too much power if it is given original jurisdiction in these cases. Publius includes a peculiar digression to show that the federal court structure will not deny state sovereign immunity. The principle of state sovereign immunity holds that no state can be sued without its consent. “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent” (#81: 486). Simply stated, a private citizen cannot sue a state without its consent. The 11th Amendment was ratified in

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1795 after the Supreme Court decided in Chisholm v. Georgia (1793) that the state of Georgia could be sued by a private citizen. The Supreme Court in Alden v. Maine (2000) affirmed, in line with the 11th Amendment, that state sovereign immunity cannot be abrogated. What this series of events shows is that Publius was wrong in predicting how the court would react with regard to state sovereign immunity without an amendment being added to the Constitution to overrule the court’s precedent in Chisholm. Paper 81 ends with Publius assuring the critics that trial by jury would not be eliminated at the hands of the federal judiciary. It is not clear how convincing the argument is, but what is clear is that there was a real concern about whether the Constitution protected the right to a jury trial even after the Constitution was ratified. It is clear because one of the first acts of the first Congress was to propose and have ratified a bill of rights which included the protection of a jury trial. The right to a criminal trial is guaranteed in the 6th Amendment and in the case of a civil trial the 7th Amendment guarantees a right to a jury trial in which “the value in controversy shall exceed twenty dollars.” In the Independent Journal on Wednesday, July 2, 1788 the 82nd paper was published and took up the question of jurisdiction. Publius assumed the task of defending the jurisdictional boundaries of the new judiciary. Broadly speaking, there are two types of jurisdiction: geographical and subject matter. Geographical jurisdiction means that a court has authority to hear a case within a specified geographic area. For instance, if a crime is committed in Des Moines, IA, a court in Rochester, MN could not hear the case since the geographical boundaries of Rochester’s municipal courts do not extend beyond its city boundaries. Subject matter jurisdiction means that particular legal questions, whether civil or criminal, are not determined by geographical boundaries but by the legal question being raised. For instance, if a person is being tried for murder, a federal bankruptcy court would not hear the case since the subject matter jurisdiction of a bankruptcy court restricts it to cases dealing only with bankruptcies. Opponents of the Constitution were worried that the national judiciary would have jurisdictional supremacy over cases which the states previously could decide. This would mean that the state courts would be weakened relative to the national court if the

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national courts could take cases from the state courts. Publius addresses these concerns by saying that the national judiciary will have jurisdiction over what are corollaries to Congress’s lawmaking authority or in those cases that arise which are peculiar to the Constitution. This means that where states had jurisdiction before they will continue to have jurisdiction, but if legal questions arise that would not have arisen were it not for the presence of the new Constitution those matters will be decided at the federal level. For instance, if a dispute arises over the interpretation of the necessary and proper clause that is a federal matter since the necessary and proper clause exists in the Constitution and therefore is a legal question unique to the Constitution. The question that lingers is: What happens when there is a jurisdictional dispute or when a state case is tried at the state level and appealed to the Supreme Court? Because the duties and structure of the judiciary are only vaguely outlined in the Constitution it is difficult to know for certain, but for matters of expediency Publius allows such matters to be decided by the Supreme Court, which in turn fits with the overarching theory of federalism in The Federalist Papers. If the Supreme Court did not have a final say then the states would have little or no incentive to remain united. But the states were concerned that this concession would be a dangerous release of sovereignty. Federalism does not work if the central government has too much power, since too much power could be used to render the states meaningless and unable to support themselves. Finding the proper balance is the greatest challenge in establishing a federal regime. Another question that is left unanswered, but can be correctly assessed now given that we have over 200 years of data to draw upon, is whether the Constitution strikes a proper balance. Paper 83 is one of the longest essays. This might be surprising given the narrow scope of the subject matter. The essay discusses jury trials and tries to defend the absence of the guarantee of civil jury trials in the U.S. Constitution. Opponents of the Constitution suggest that the document destroys the right to a jury trial since it omits any mention of it, while it does guarantee the right to a jury trial in criminal cases (Article III, Section 2). Publius quickly dismisses this rebuttal by suggesting there is no logical connection between omission and destruction. This is done easily enough by simply stating that “Every man of discernment must at

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once perceive the wide difference between silence and abolition” (#83: 495). Given the simplicity of the requisite rebuttal there is something important about why the essay continues on well after this point is put to rest. Publius understood his audience, which comprised sympathizers, objectors, and skeptics. He was most concerned with the objectors and skeptics in #83. One of the grievances listed in the Declaration of Independence was for King George “depriving us in many cases, of the benefit of Trial by Jury.” Historically, juries were important to colonists, since they were the only bulwark against arbitrary decisions from the Crown or its officers. A jury is a random selection of citizens chosen to hear a case and decide guilt, innocence, and punishment. A jury, then, is intended to be an approximation of the sentiment of the community in which the trial is being held. It takes the power to decide away from the government and gives it to the people. The jury trial might be the most democratic feature of any government. To deny the right to jury trial, or to not guarantee its presence under the new Constitution, raised concerns that there would be no check on government authority in judicial proceedings and it revived memories of King George III. Publius understood this, and therefore could not simply end the matter by exposing the flaws in the opposition’s logic. Publius had to argue that the jury trial was not the best path to justice because juries could not be relied upon to settle civil matters or matters relating to foreign relations. His argument is an extension of his well-established skepticism of the average person. Publius, if you recall, argued for a republican form of government and not a democracy for fear that the people would make capricious decisions that reflected passion rather than reason. Thus, their passions would govern them in the jury box as well. In this context though, Publius had to argue against such a deeply held position, namely that the jury trial should be protected, that he had to dedicate many pages to the argument in an effort to persuade those in opposition. Ultimately his argument was unpersuasive, since the jury trial was guaranteed to the American people in the 6th and 7th Amendments that were drafted and proposed by James Madison in the first Congress. This brings the discussion of the judiciary to a close as well as a close to all the papers that discuss in detail the institutional structure established by the new Constitution.

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Miscellaneous objections and conclusion (Papers 84 to 85) Paper 84 ties up some loose ends. Whatever objections not addressed in the previous 83 papers are to be dealt with here; the most pressing of which is the lack of a bill of rights. The original Constitution did not have a bill of rights. It was only after the Constitution was ratified that the first Congress initiated the amendment process that would eventually add the ten amendments that we now know as the Bill of Rights. Madison, one-third of Publius, drafted and navigated the amendments through the process despite his earlier objections to a bill of rights. Madison the pragmatist knew that if there were no promise of a bill of rights it would be nearly impossible to get the needed nine of 13 states to ratify. In fact, North Carolina did not ratify the Constitution until 1789, which was after the Bill of Rights had been proposed in Congress. So important was a bill of rights to key states that it is worth spending a little time discussing some of the demands for a bill of rights before examining Publius’ reply. On Friday, December 12, 1787 in Pennsylvania, the state legislature suggested that the national government add a number of provisions, two of which directly addressed their concern for property (Pennsylvania Legislative Records December 12, 1787: 658).5 Just as they demanded it in their own constitution and declaration of rights, the people of Pennsylvania demanded that property be guaranteed in the national governing document and protected through procedural measures also outlined in the same document. Pennsylvania still ratified even without a bill of rights, although they put a great deal of pressure on the Federalists, in addition to Madison, Jay, and Hamilton, to make concessions regarding a bill of rights. The fifth state to ratify, Massachusetts, did so without a national bill of rights but recommended that one be added. Massachusetts was a key figure in getting a national Bill of Rights adopted as it was the first state to submit its recommended amendments to Congress with the ratification. South Carolina followed Massachusetts’s model and sent four proposed amendments to Congress with the ratified Constitution. Maryland, the seventh state to ratify, also offered amendments but did not send them to Congress. Instead it submitted them in pamphlet form to the people of Maryland in

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order to gain popular support for the measures. New Hampshire, the ninth state to ratify and thus bringing the Constitution into effect, could only get the ratification passed in the legislature by adding 12 amendments to the document in order to pacify the Anti-Federalist opposition. These amendments were not added to the Constitution but it was enough for the Anti-Federalists to ratify under protest and to have their voices heard. While each of these states proposed amendments in one form or another, the recommendations were non-binding on the federal government, even though James Madison assured the states that a bill of rights would be added, thus making Publius’ argument against a bill of rights seem hard-headed. With nine states on board the new country was constitutionally created. But everyone knew that without Virginia and New York on board the new nation would fail. All the delegates who drafted the 1776 Virginia Declaration of Rights were also at the 1788 ratification Convention, including James Madison. The home state of James Madison, the architect of the national Bill of Rights, was the first state to have its own Bill of Rights after 1787 and therefore it is no surprise that this state would want the national Constitution to have the same. Here is a sampling from the amendments Virginia offered: 1st That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety. 9th That no freeman ought to be taken, imprisoned, or disseized of his freehold liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land. 11th That, in controversies respecting property … the ancient trial by jury is one of the greatest securities. 12th That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character.

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14th That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property (Schwartz 1971: 840–1). What can be seen in these amendments is a clear commitment to the preservation of property through those instrumental rights found in common law and codified in pre-Constitution state constitutions, as well as an understanding of property that makes its preservation necessary for life and liberty. Property is a natural right which government is created to protect, and without which safety and happiness are sacrificed. The laws and legal institutions, as understood by the legislature of Virginia, are to be designed with the express purpose of protecting property. Whether by jury trial or law, a person’s property was to be protected from both government and private individuals. The government was designed to settle disputes between individuals, and the Constitution and Bill of Rights were designed to make sure that those same laws applied to the government’s interaction with individuals. Virginia’s proposal had a profound influence on other hold-out states as well. North Carolina’s ratification of the Constitution contained identical language. Rhode Island’s ratification, which occurred after the Bill of Rights had been ratified, differed only on small matters (Siegan 1997: 25). While North Carolina did not vary from Virginia, it is significant in that it signals how important these rights were to a large segment of the population. Rhode Island does not mention property in its amendments, but makes known its position—which was identical to Virginia’s—by offering 18 declarations of how they read the Constitution and the rights they found valuable. New York was the home state of Alexander Hamilton. Although Hamilton and Madison, along with Jay, authored arguments against a bill of rights, their thoughts did diverge on the question of the Bill of Rights. Madison believed it was superfluous so there was no harm in adding it, especially if it would help move the ratification process along and keep the states satisfied once ratified. Hamilton on the other hand understood a bill of rights to be dangerous. He suggested that if a Bill of Rights was added, people would think that the list was exclusive, meaning that the only rights the government is designed to protect are those listed. Hamilton thought that since there were so many rights some would

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be overlooked and potentially left unprotected. But Hamilton was fighting a losing battle and acquiesced. The debate in New York was far more divisive than in Virginia, as both sides had equally powerful figures6 and the sides were further apart than they were in Virginia. The Convention assembled on June 27, but it was not until Thomas Tredwell rose on July 2 that a bill of rights was brought up. On July 7, John Lansing read the proposed Bill of Rights to the Convention. Hamilton indicated in a letter to Madison that the Federalists were willing to make this concession in order to get the Constitution ratified, which is probably one of the reasons why the measure was successful. In terms of the rights that were protected in the New York proposal, there was little difference between New York and Virginia, but there were some details in the language that were significant. The New York proposal stated “That no person ought to be taken, imprisoned, or disseized of his freehold, or be exiled, or deprived of his privileges, franchises, life, liberty, or property, but by due process of law” (Schwartz 1971: 912). By substituting “due process of law” for “law of the land,” the New York document follows more accurately the language employed in Edward III’s Chapter 29 of the Magna Carta. The due process clause appeared for the first time in America in Massachusetts’s Body of Liberties in 1641. But it was probably New York’s proposal that led to the adoption of the language in the 5th Amendment, which then led to the same language in the 14th. Given the importance of the due process clause in the Supreme Court’s protection of rights, the change of phrase was not trivial. Similar to the provisions found in the Virginia and national Bill of Rights, the delegates at the New York Convention found it necessary to protect property, both landed and otherwise, from government infringement. In New York, and Virginia as well, the protection of property is aimed at thwarting government intervention, not invasion by private citizens, indicating that when it comes to rights, the government is considered the greater threat to one’s rights. This only stands to reason, given that they just overthrew a government that did not respect their rights. So with the stage set, let us move on to Publius’ objection to a bill of rights. Publius first suggests that the Constitution does contain protections for certain rights already, but not all the rights clamored for by the opposition. Publius acknowledges that “bills

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of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince” (#84: 512). But this Constitution is different, according to Publius. The very end of the new government is stated in the Preamble and those institutions established are set to establish a government that will pursue those ends. This makes a bill of rights unnecessary, as there is no need for a pact between the new government, and the people for the new government have no other goal but to secure the blessings of liberty. A bill of rights would have been redundant. But even worse, it would have been damaging to the new government and the people. A bill of rights would do no more than contain protections against powers which had not been granted to the new government. Listing all the things the new government cannot do might give the potential usurper reason to believe that the new Constitution implies certain powers that it does not explicitly grant. Take, for instance, liberty of the press, as Publius does. There is no reason to grant freedom of the press since there is nothing in the Constitution which authorizes regulation of the press in the first place. In addition, if the new government gives the press its freedom then it may be deduced that it can strip it of its freedom as well. If the new government has no authorization to interfere with the press, and the press is assumed to be independent of government action, the act to infringe it could easily be challenged on constitutional grounds. In addition, no bill of rights can list all the rights that a person can have. Therefore, by listing them, a person could rightly argue that only those rights that are listed are the rights that can be enjoyed. If the rights are not listed in a bill of rights, then it is assumed the people enjoy all rights, free from regulation and suspension, which are not explicitly under the control of the government established by the new Constitution. In other words, according to Publius, a lack of a bill of rights gives the people more rights. Publius moves on, in #84, to address the concern about the location of the new government. Objectors state that because the seat of power will be far removed from so many states the new government should be denied. A government with a seat of power far removed from the people it governs cannot be held accountable by the people and cannot know the needs of the people. Remember England, the objectors might proclaim. Publius does not have a

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persuasive argument against this one. First, he replies that if there were no seat of government then there would be no government at all. So, he seems to ask, do you want a government or not, because if you do, and it is not the Articles of Confederation, the government must have somewhere to meet. His response is accurate, but it doesn’t explain how the people will be made aware of what their representatives are doing while away from their states and districts meeting in some far-off capital. Second, he states that those elected to state office will be able to keep tabs on those in the nation’s capital, which would first be in New York City, not Washington DC which was not yet a city and would not become the capital until after 1790. The elected officials at the state level will look out for their own interest, and since each state has a competing interest, each state will serve as a check on the other as well as on the national government. But this will not prevent elected officials from striking deals out of the view of the public, which will benefit them directly while leaving the people to fend for themselves. In addition, Publius suggests that the residents who live around the capital will have the same interests as an average resident of a far-off state, so they can be relied upon to look out for corruption. But this is not true at all. Publius throughout has recognized that different people have different interests, and these different interests are why we establish a federal system with a separation of powers. There would be nothing under this scheme to prevent officials from passing laws that favor the residents living around the capital at the expense of other citizens. If this were to happen there would be no outcry from the citizens living around the capital and thus no reason for them to alert citizens living further away or to try and prevent corruption at the national level, since they would be the direct beneficiaries. Again, not a persuasive argument, but since ten states (Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, and Virginia) had ratified the constitution before #84 was originally published on July 16, 1788, which meant the Constitution was technically in force, perhaps Publius did not feel the need to be on top of his game. But New York was still deliberating, and since the purpose was to convince New York to ratify, the project could not be given up entirely. The remainder of the essay addresses expense. Some objected to the new Constitution that it would simply be too expensive

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to maintain and should therefore be rejected. Publius rehashes common themes already discussed, such as the limited taxing power of the new government, that it would run against the self-interest of the government to become too burdensome and therefore would not, the new government would be a friend of profitable enterprise and therefore have sufficient revenues without placing burdensome taxes on businesses or individuals, and the people and states could adequately check the expense. Added to this list is the idea that a single coordinated government would be more efficient and therefore less expensive than a disjointed confederacy. Whether the new government would become too burdensome is a debate we are still having today. Paper 85 brings the project to its close as it is the last of the papers published in serial form. Publius states that, with only minor deviations, he has stuck to the plan that was outlined in the first paper, and because he has exhausted all the relevant topics there is no need to go further in dismissing the critics. However, he continues to do so. This, as we have seen, is a common rhetorical strategy. Publius states that there is no reason to consider the matter further yet proceeds to consider the matter, or that there is nothing left on a topic to consider, yet raises another issue not yet mentioned. So since this is how the whole of the project has progressed, we should only expect a continuation in the final installment. Publius summarizes each of the areas considered and applauds himself for doing so well in defending the Constitution. He also argues that he has shown that in each area of criticism the proposed Constitution was shown to either be identical to, or better than, the existing New York Constitution which the opponents hold in such lofty esteem. It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. ... Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable (#85: 520).

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He continues this line of argument by restating that the new plan is superior to the old plan, and New York’s, in preserving liberty and security, for it better preserves the union. And union is a better protector of liberty and security than disunion. Publius is so convinced by his superior argument, and the case made for the Constitution, that the only people who can object are those who are biased in their own cases and do not have the nation’s best interest at heart. By this time ten states had already ratified the Constitution and it is now time for New York to do the same. No partial motive, nor particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject (#85: 522). The objection still stands that the Constitution is not perfect, a point which Publius concedes. Publius also acknowledges that no such constitution can be perfect and to hold it to such a standard is unrealistic and exposes the unreasonable nature of the Constitution’s opponents. I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed (#85: 523). Then, using Article V of the Constitution, Publius goes on to show that whatever defects exist, or will arise in the future, can be rectified through the amendment process, a process which is a far more desirable option than trying to reconvene a new constitutional convention and set about the task again.

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It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine in favor of subsequent amendment, rather than of the original adoption of an entire system (#85: 524). The Constitution is clearly not perfect and thus may be amended from time to time to correct errors and tackle new problems. The objection to Article V is that it is too difficult. Article V is a road-block rather than a pathway to amending the Constitution. John DeWitt argued that adopting a constitution that is so difficult to amend means adopting the document that will never be changed. And if this document in particular cannot be changed the promotion of vice and self-interest will be institutionalized within the American regime. “Go, and establish this Government, which is unanimously confessed imperfect, yet incapable of alteration,” and the consequences of doing so means to “Intrust it to men, subject to the same unbounded passions and infirmities as yourselves, possessed with an insatiable thirst for power, and many of them, carrying in them vices, tho’ tinsel’d and concealed, yet, in themselves, not less dangerous than those more naked and exposed” (Ketcham 1993: 316). Whether the Constitution has worked in this fashion or not cannot be resolved by reading the debate. Knowing the stakes of the game and what to look for, we now have to begin our own observations of the American political regime. If we approach contemporary policy questions informed by the debates that came before we can more successfully grasp and deal with the current problems. The job of Publius has been completed. Whether because of his efforts, or for some other reason, almost three weeks before #85 was published, on July 26, 1788, the Constitution was ratified by New York in a vote of 30 to 27. Of the original 13 colonies only

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North Carolina and Rhode Island had not ratified. But with New York’s ratification the Constitution’s fate was sealed. The United States of America was born.

Notes 1

Delaware did not officially ratify the amendment until June 25, 2010. Utah, Alabama, Florida, Georgia, Kentucky, Maryland, Mississippi, Rhode Island, South Carolina, and Virginia are states that have not yet ratified the Amendment. Alaska and Hawaii have not either but they did not become states until after 1913. The reason the amendment became part of the Constitution without the support of all the states may be found in Article V of the Constitution which states that only three-quarters of the states are needed to ratify an amendment, whereas only two-thirds of the states, or of both Houses of Congress, are necessary to propose an amendment.

2

Some might argue that #81 offers a more moderate representation of Publius’ thoughts on the judiciary than what may be found in #78. However, it should be recognized that #81 does not salvage the common law system, or the system of separation of powers of the much admired Montesquieu. In #81 Publius admits that the American system has moved against the British model by taking the final appellate level out of the legislature—the final appellate level in the British common law system was in the House of Lords—and places it in a distinct body of the judiciary which is independent of the legislature. Montesquieu—whom Publius openly cites as an authority—admired the British model. In #81 Publius moves beyond Montesquieu and abolishes a distinguishing characteristic of the British common law model. When one recognizes this, the teaching of #81 is consistent with, and no less revolutionary than, the reading of Publius’ which I have advanced up until this point.

3

Publius’ view of the judiciary seems to be well informed by Montesquieu’s observation that “Tribunals of the judiciary must, on the contrary, be coolheaded and, in a way, neutral in all matters of business” (Spirit of the Laws, Book VI.6).

4

This point was originally made, I believe, by Martin Diamond (1959), though he does not draw the conclusion for the same reason that I do. Diamond seems to say that reason is present because it must be present at the founding. I say that it is present at the

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founding, according to Publius, because it is allowed to be present, since the founders have a sound understanding of politics due to their “new science of politics,” and have given up trying to mimic historical examples. 5

All page numbers that accompany state documents refer to Schwartz 1971, Vol. II.

6

Federalists included Alexander Hamilton, John Jay, and Robert Livingston. The Anti-Federalists include, George Clinton, John Lansing, and Melancton Smith.

Chapter Four

Contemporary relevance Now that we know what The Federalist Papers said, it is worth revisiting why they are worth reading. Throughout this book examples have been given over how The Federalist Papers have informed our ideas about the Constitution but even that is not justification for reading the papers. Those who argue that The Federalist Papers are worth reading because they have shaped the way we think about the Constitution today miss the point. If I already think in a way consistent with Publius, why do I need to go back and read him? However, the most prominent justification for reading The Federalist Papers is that it will bring us to a more complete understanding of the intent of the founders which then leads us to a more faithful interpretation of the Constitution in our own times. The U.S. Supreme Court has latched on to this justification as well as constitutional scholars who strive for an original meaning. In the aggregate, academic writers and jurists have cited the Federalist Papers as evidence of the original meaning of the Constitution more than any other historical source except the text of the Constitution itself … more than 9700 law review articles and more than 17000 cases have referred to the essays. The Supreme Court takes the essays especially seriously. It recently quoted the Federalist Papers 35 times in a single case, Printz v. United States (Maggs 2007: 802). Thus reading The Federalist Papers is important so that we can understand how significant people reference them. That is, if we

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want to know whether those academics, lawyers, and judges who use The Federalist Papers use them correctly, we must read them for ourselves. If we simply let others tell us what something says then we are effectively letting other people think for us. But this justification for reading The Federalist Papers seems incomplete. James Madison did not want The Federalist Papers used in this manner. He thought that if someone wanted to understand the true meaning of the Constitution one should read the records of the state ratifying Convention in which the people in charge of ratifying the Constitution gave their understanding of the Constitution, and it was their understanding that was ratified, not Publius’. For example, in the South Carolina ratifying Convention the arguments that won there may have been similar to Publius’ but they were not Publius’. The arguments expressed at the South Carolina ratifying Convention were those that expressed the understanding of the Constitution of South Carolinian Federalists and that was the interpretation of the Constitution that was ratified. Or, the interested student could go to the now published records of the Constitutional Convention in Philadelphia to learn what the founders understood themselves to have been writing. What might keep many people from going to the Constitutional Convention and the records of the state ratifying conventions is not that they don’t think these are valuable resources but it is harder to hunt down these writings than it is to order a copy of The Federalist Papers and start reading. However, this should not be a reason to dismiss The Federalist Papers as a valuable resource by which we can come to understand the founding period and the Constitution. The three men who made up Publius had a profound influence on the course of the nation and constitutional interpretation before, during, and after its ratification. Even beyond their influence, The Federalist Papers simply “are intelligent analysis based upon sophisticated political theory” (Eskridge 1992: 261). We can compare how the system operates now with how these men thought it should operate in order to understand how far we have strayed, or how faithful we have been, to one set of influential writers’ concept of constitutional government. We can use their understanding of the Constitution to help us decide what we should do in moving forward. If we think it is valuable to remain faithful to the founders’ vision of



Contemporary relevance

175

the Constitution then we must consult the founders’ vision of the Constitution when considering current policy choices. I would like to offer one more reason why The Federalist Papers, and the ratification debates as a whole, are valuable; a reason usually not offered. In the current political climate debate occurs at the most basic level. Politicians and pundits rely upon clichés and polarizing tones that appeal to a large group of generally disinterested observers. The modern context of high-speed media does not necessarily lend itself to long-form argument. Rather, those looking to capture and persuade popular opinion have to speak in sound bites, to dumb down the debate for mass consumption. The result has been a less cerebral and intelligent debate. The Federalist Papers show us that the way things are is not the way they have to be. We can return to a more sophisticated form of debate, and raise the civility and intellectual rigor of our discourse, if we only demand that it is done. If we vote against politicians who appeal only to our emotions, or switch the channel when a broadcaster only goes for shock value, then things can change. But until we take responsibility for our own thinking and our own consumption, things will continue to strive for the most base level. Publius demonstrated that you can appeal to reason and still win in politics. Beyond American shores there are lessons from The Federalist Papers that can be adopted. Publius and his opponents were at odds over what direction the nation would take. Each side was concerned that if their recommendations were not followed their interests would be sacrificed. People’s livelihoods, belief structures, and manner of living were in question. If the opposing side was victorious, those on the losing side feared that they would suffer cultural and material loss as a result of institutionalized bias. Similar debates are happening every day across the world. Whether it’s Southern Sudan, Egypt, Libya, or Afghanistan, countries with opposing factions are trying to build new countries and neither side wants to give in to the other. As a result, the question is raised as to whether representative government can exist outside of nations steeped in the Western intellectual tradition. What those who propose such a question forget is that Western democracies have a similar history of disagreement and violence. Settling disputes and establishing a representative system of government does not have to be a Western phenomenon and Publius gives us clues as to how

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representative government can be established in other places as well. First, the American ratification debates show what sort of debates are necessary for a nation to adopt a new system of government to which there is widespread and sustained opposition and suspicion. Rather than resorting to violence, name calling, and extreme rhetoric, one simply needs to appeal to reason. Certainly there were those on both sides of the debate who resorted to negative tactics but the leaders of the movement to ratify the Constitution did not stoop so low. In the simplest terms the first lesson is: Leaders should act like leaders. Second, when deciding upon which institutions are viable, new and developing nations should not feel the need to reinvent the wheel. The ratification debates created a foundation on which all future debates about the representative government can build. Publius crafted a sound theoretical justification and gives examples of why certain institutions should be adopted and others should be abandoned. This is not to suggest that each nation should mimic the American model, but only that nations looking to move in the direction of democracy should reflect upon the American founding. In the American ratification debates other nations can perhaps see their own struggles and concerns reflected, and can therefore draw on that experience for some direction. In conclusion, The Federalist Papers must remain on the bookshelf and in the classroom, since it is in these writings that we see the foundation of representative government justified and defended most cogently and persuasively.

BIBLIOGRAPHY

Adams, John, The Works of John Adams, Vol. 6, ed. Charles Francis Adams, Boston, MA: Little, Brown, 1851. Bailyn, Bernard, The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, Parts I and II, New York: The Library of America, 1993. DeRose, Christopher, Founding Rivals: Madison vs. Monroe, the Bill of Rights, and the Election that Saved a Nation, Washington, DC: Regnery Publishing, 2011. Diamond, Martin, “Democracy and the Federalist: A Reconsideration of the Framers’ Intent,” American Political Science Review, 53 (March 1959): 52–68. Elliot, Jonathan, The Debates in the Several State Conventions on the Adoption of The Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, Volume III, Philadelphia, PA: J. B. Lippincott, 1941. Eskridge, William N., “Cycling Legislative Intent,” International Review of Law and Economics, 12 (1992): 261. Eubanks, Cecil, “New York: Federalism and the Political Economy of Union,” in Ratifying the Constitution, Michael Allen Gillespie and Michael Lienesch (eds), Lawrence: University Press of Kansas, 1989. Farrand, Max, The Records of the Federal Convention of 1787. Vol. I, New Haven, CT: Yale University Press, 1911. Fleet, Elizabeth ed., “Madison’s ‘Detached Memoranda,’” William and Mary Quarterly, 3.3 (1946): 565. Ford, Paul Leicester, Pamphlet on the Constitution of the United States, Published During its Discussion by the People, 1787–1788, Brooklyn, NY, 1888. —Essays on the Constitution of the United States, published During its Discussion by the People, 1787–1788, New York: B. Franklin, 1970. Furtwangler, Albert, The Authority of Publius: A Reading of the Federalist Papers, Ithaca, NY: Cornell University Press, 1984. Hamilton, Alexander, The Records of the Federal Convention of 1787,

178 BIBLIOGRAPHY

Vol. I, ed. Max Farrand, New Haven, CT: Yale University Press, 1937. Hamilton, Alexander, James Madison and John Jay, The Federalist Papers, Clinton Rossiter ed., with introduction and notes by Charles R. Kesler, New York: Signet Classic, 1999. Kaminski, John P. and Richard Leffler (eds), Federalists and Anti-Federalists: The Debate Over the Ratification of the Constitution, Madison, NY: Madison House, 1998. Kendall, Willmoore and George W. Carey, The Basic Symbols of the American Political Tradition, Washington, DC: The Catholic University of America Press, 1995. Kenyon, Cecelia M., “Men of Little Faith: The Anti-Federalists on the Nature of Representative Government,” William and Mary Quarterly, 12.1 (1955): 13. Ketcham, Ralph, Framed for Posterity, Lawrence: University of Kansas Press, 1993. Lee, Arthur, An Appeal to the Justice and Interests of the People of Great Britain, in the Present Dispute with America, 4th edn, New York, 1775. Locke, John, Second Treatise of Government, ed. C. B. Macpherson, Indianapolis, IN: Hackett Publishing Company, 1980. Lodge, Henry Cabot, ed., The Works of Alexander Hamilton, New York: G. P. Putnam’s Sons, 1885–1886. Madison, James, The Complete Madison, ed. Saul Padover, New York: Harper and Brothers, 1953. —James Madison: Writings, ed. Jack Rakove, New York: Library of America, 1999. Maggs, Gregory E., “A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution,” Boston University Law Review, 87.1 (2007): 801–47. McWilliams, Wilson Carey, “Democracy and the Citizen: Community, Dignity, and the Crisis of Contemporary Politics in America,” in How Democratic is the Constitution?, Robert A. Goldwin and William A. Schambra (eds), Washington, DC: American Enterprise Institute for Public Policy Research, 1980. —“The Anti-Federalists, Representation, and Party.” Northwestern Law Review, 84.1 (1990): 19. Morris, Richard B., Alexander Hamilton and the Founding of the Nation, New York, 1957. Pangle, Thomas L., “The Federalist Papers’ Vision of Civic Health and the Tradition Out of Which That Vision Emerges,” Western Political Quarterly, 39.4 (1986): 596. Rutledge, John, The First American Constitutions: Republican Ideology and the Making of State Constitutions in the Revolutionary Era, ed.

BIBLIOGRAPHY

179

Willi Paul Adams, Chapel Hill, NC: University of North Carolina Press, 1980. Schwartz, Bernard, The Bill of Rights: A Documentary History, 2 Vols, New York: McGraw Hill, 1971. Shklar, Judith, “Publius and the Science of the Past,” Yale Law Journal, 86.6 (1977): 1290. Siegan, Bernard, Property and Freedom: The Constitution, The Courts, and Land-Use Regulation, New Brunswick, NJ: Transaction Publishers, 1997. Siemers, David J., ed., The Antifederalists: Men of Great Faith and Forbearance, Madison, NY: Madison House, 2003. Storing, Herbert J. ed., The Complete Anti-Federalist, Vols II and IV–VI, Chicago, IL: University of Chicago Press, 1981a. —What the Anti-Federalists Were For, Chicago, IL: University of Chicago Press, 1981b. Story, Joseph, Commentaries on the Constitution, Boston: Hilliard, Gray and Co. 1833. The following readings are not cited directly in this book but have influenced my thinking on this subject and are valuable resources for anyone wishing to deepen their understanding of The Federalist Papers and the Constitution. Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction, New Haven, CT: Yale University Press, 1998. Bailyn, Bernard, Ideological Origins of the American Revolution, Cambridge, MA: Harvard University Press, 1967. Beard, Charles A., An Economic Interpretation of the Constitution of the United States, New York: Macmillan, 1913. Becker, Carl, The Declaration of Independence: A Study in the History of Political Ideas, New York: Vintage Books, 1942. Carrese, Paul O., The Cloaking of Power, Chicago, IL: The University of Chicago Press, 2003. Cooley, Thomas, A Treatise on The Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, Boston, MA: Little, Brown, 1868. Corwin, Edward S., “‘The Higher Law’ Background of American Constitutional Law.” Harvard Law Review, 42.1 (1928). Dumbauld, Edward, The Bill of Rights and What it Means Today, Norman: University of Oklahoma, 1957. Ely, James W., The Guardian of Every Other Right: A Constitutional History of Property Rights, New York: Oxford University Press, 1998. Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain, Cambridge, MA: Harvard University Press, 1985.

180 BIBLIOGRAPHY

Hartz, Louis, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution, New York: Harcourt, Brace, World, 1955. Kendall, Willmoore, Willmoore Kendall: Contra Mundum, ed. Nellie D. Kendall, Lanham, MD: University Press of America, 1971. Kent, James, Commentaries on American Law, New York, 3rd edn, 1836. Ketcham, Ralph, ed., The Anti-Federalist Papers and the Constitutional Convention Debates: The Clashes and The Compromises That Gave Birth to Our Form Of Government, New York: Signet Classic, 1986. Levy, Leonard W, Seasoned Judgments, New Brunswick, NJ: Transaction Publishers, 1995. —Origins of the Bill of Rights, New Haven, CT: Yale University Press, 1999. Lutz, Donald S., “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review, 78.1 (March 1984): 189–97. Pangle, Thomas L., The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke, Chicago, IL: University of Chicago Press, 1988. Scott, Kyle, Dismantling American Common Law: Liberty and Justice in Our Transformed Courts, Lanham, MD: Lexington Books, 2008. —The Price of Politics: Lessons from Kelo v. City of New London, Lanham, MD: Lexington Books, 2010. Siegan, Bernard, Property and Freedom: The Constitution, The Courts, and Land-Use Regulation, New Brunswick, NJ: Transaction Publishers, 1997. —Property Rights: From Magna Cart to the Fourteenth Amendment, New Brunswick, NJ: Transaction Publishers, 2001. Tocqueville, Alexis de, Democracy in America, ed. J. P. Mayer and trans. George Lawrence, New York: Harper Perennial, 1969. Zuckert, Michael P., Natural Rights and the New Republicanism, Princeton, NJ: Princeton University Press, 1994.

Index

academics, evaluating use of The Federalist Papers by 173–4 accountability checks and balances and 53 plural executive and 131 of President, term limits and 134 of representatives, Anti-Federalists on 29 of representatives, frequent elections and 115–16 Adams, John Quincy 38, 97, 154 administrative state 100 advice and consent of Senate 124–5, 128, 137–8, 139, 150 age, to qualify for election as Representative vs. Senator 121, 122 Agrippa (Anti-Federalist) 27, 70 see also Winthrop, James Alden v. Maine (2000) 158 ambassadors 63 see also statesmen amendments see also specific amendments adoption of Constitution without revisions or 39–40 Article V on process for 168–9, 170n. 1 including election regulation in Constitution and potential need for 120 proposed, sent with ratification documents 161–2

Amphicytonic Council, of Grecian republics 87 anarchy see also instability coercion to coordinate unity under Articles of Confederation and 86 tyranny in Greek and Roman republics and 69 Annapolis Convention (1786) 36–7 Anti-Federalists see also states’ right advocates; specific writers on decentralized government 9–10 distrust of institutions by 23 on entrenched political class 115 on factions and House of Representatives 22 government consolidation fears of 18 on human nature and republican government 16–17 naming of 14 opposition to Constitution ratification by 14–15 opposition to national power by 54–5 on ratio and quality of representatives 112, 113 on small government and public good 24–5 spokespersons for 15, 171n. 6 on thirteen separate sovereignties 19 Treaty of Paris and 125

182 Index

appointment power 128, 138–40, 150–1 Aristotle 31 arms, right to bear 67, 93–4, 95 army see also military; national defense debate on powers of central government and 92–3 of national government, international trade and 90 Second and Third Amendments on 67, 93–4 standing, Publius on 66–7 Article I, Section 3 on state legislatures’ selection of Senators 105 Article I, Section 9 on Congress not interfering with slave trade until 1808 104 prohibiting income tax 96 Article II, Section 2 on appointment powers of President 138–9 Article III 140, 155 Article IV, Section 4 guaranteeing republican government in each state 104 on protection against invasion or domestic violence 89 Article V see amendments Articles of Confederation see also confederacies critiques of 89–91 The Federalist Papers on corrections to insufficiencies of 3–4, 45 governmental power problems under 35 independent judiciary missing from 143 Madison on differences between Constitution and 39–40

negative passions of men debated under Constitution vs. 59–60 perceived failure of 36 replaced not revised 1, 99–100 unsettled western land disputes and 65–6 Athenian assembly 113 see also Greek city-states Belgium, as confederacy 87 bicameral legislature 5–6, 91 Bill of Rights see also specific amendments The Federalist Papers on lack of 161 passage of 67–8 Publius’ objection to 164–5 for Virginia 162–3 Blackstone, William 140, 141, 144, 146, 155–6 Boston Tea Party 61 branches of government 45, 118–19 see also specific branches British common law see English common law British Empire 25, 63–4 see also England, King of; George III Brutus (Anti-Federalist) on central government powers 92 on centralizing governmental power 55–6 on Greek and Roman republics 68 on judicial review 151–2 on judiciary merging cases on law and equity 155, 156 on judiciary’s decisions on constitutional law 150 on private and public interests in small districts 30–1

Index on small community as homogeneous 27 Burke, Edmund 132 Burr, Aaron 13 Calhoun, John C. 101 Carey, George 22–3 Cato (Anti-Federalist) 25, 32–3, 128 census, representatives to House based on 111–13 Centinel I (Anti-Federalist) 30 checks and balances see also separation of powers and checks and balances legislative 123–4 Seventeenth Amendment and 122 in treaty powers 124–5 veto power and 136 Chief Justice of the Supreme Court 13 Chisholm v. Georgia (1793) 158 Cincinnatus (Anti-Federalist) 19 cities, federalism and 56 citizens see also people of different states, judiciary to hear cases between 154–5 good, Philadelphia Convention effect on development of 57 judiciary to hear cases between U.S.A. and 154 participation by, as check on representatives 52–3 suing states 157–8 virtue of, Publius’ assumption of 113–14 citizenship, as qualification for Senators 122 civil cases, trials for 158, 159, 160 Clinton, George, 171n. 6 see also Cato Coke, Lord 140, 141

183

colonies deprived of trial by jury 160 election manipulation in 116–17 Representative Houses dissolved in 109 separation of powers in constitutions of 106 united people and history of 61–2 commander-in-chief 137 commerce see also economic advantages; interstate commerce; property; trade excessive taxation effect on 96 Madison on free system of 75–6 regulation by central authority 90 relation to politics of 50 in republics 64–5 strong government institutions and protection of 83–4 common good see public good common law 141, 143–4, 146, 155–6, 170n. 2 common sense, judicial 146 competition, in large states, public good and 32 confederacies 17, 18–19, 70–1, 87–8 see also Articles of Confederation; federalism Congress see legislature Connecticut ratification of Constitution by 40 rejection of Annapolis Convention by 37 Connecticut Compromise 5–6 conscience, property of 77–8, 79, 81 consensus, homogeneous societies and 28

184 Index

consolidating communities Cato on lack of national homogeneity and 32–3 Constitution on 26 consolidating power, checks and balances and 51 Constitution see also ratification Framers on adoption without amendment or revision of 39 as fundamental law for judiciary 145 judiciary to interpret law according to spirit of 156 Madison on understanding true meaning of 43–4 objections to expense of maintaining 166–7 objections to Philadelphia Convention and 37–40 Constitutional Convention 4–5, 99–100, 102, 174 constitutional law 145, 146 Continental Congress 61, 102 Cornelius (Anti-Federalist) 29 counties, federalism and 56 criminal cases, right to trial in 158, 160 currency, standard, international trade and 104 debate(s) on army and powers of central government 92–3 intelligent, The Federalist Papers as basis for 175 on Neutrality Proclamation 11 over public and private rights 23 over sovereignty of state governments 97–9 on ratification by states 14–15, 43–4

on ratification by states as example to other new governments 176 in republics 73–4 debts of states, repayment of 66, 86 Declaration of Independence 109, 116–17, 118, 119, 160 see also Jefferson, Thomas Delaware Annapolis Convention and 37 independent judiciary in 157 ratification of Constitution by 40 delay and debate, in republics 73–4 deliberation, in small states, as foundation for government 31 deliberative power Carey on virtue of leaders and 22–3 separation of powers, public good and 20 democracy Electoral College and founders’ distrust of 7, 129 in House, Senate as check on 121–2 presidential authority and 132 as undesirable form of government 72–3 veto power of President and 136 despotism see tyranny DeWitt, John 59–60, 64, 169 Diamond, Martin 170–1n. 4 divided power 56 domestic rebellions, national government power to quell 94 domestic tranquility, unified America and 53 due process clause 164

Index economic advantages 53, 84–5 see also commerce; trade economic disparity, factions and 79–81 economic rights, politicization of 83 Edward III 164 Elastic Clause 97–8 see also Necessary and Proper Clause elections see also term of office frequent, accountability of representatives and 115–16 interval for House of Representatives 110–11 of President after initial term 7, 134–5 regulation of 6, 116–20 of Representatives vs. Senators 121 Electoral College 7, 128–9 electoral districts, Anti-Federalists on representation and size or distance of 28–9 Eleventh Amendment 157–8 Ellsworth, Oliver 91 eminent domain 81 England see also British Empire colonists as united whole fighting against 61–2 England, King of 6, 87, 130, 136 see also George III English common law 141, 143–4, 146, 155–6, 170n. 2 Enlightenment see Blackstone, William; Locke, John; Montesquieu; Rousseau, Jean Jacques equality Madison on property ownership and 75–81 of representation by Senators 122, 123 equity, judiciary to hear cases regarding 155–6

185

Eubanks, Cecil 49–50 executive see also President energetic, importance of 127–8 The Federalist Papers on 109, 127–40 institutional restraints on legislature of 49, 108 plural, deficiencies of 130–1 protection from Congress of 135 expense of maintaining Constitution, objections to 166–7 experience, re-election of the President to benefit from 135 factions definition of 71 Federalists on national control of 3, 14–15 instability and national control of 17–18 Madison and Locke on economic disparity and 79–81 majority, in democracy vs. republic 72–3 size of republic and 20, 21 types of 71–2 Federal Farmer (Anti-Federalist) 27, 36 federal judiciary 144–5, 150–1, 157–8 see also judiciary federalism changes in use of term over time 5, 101 The Federalist Papers on 45, 55–8 jurisdictional disputes and balance in 159 separation of powers and 108–9

186 Index

Federalist #1 on plan for The Federalist Papers 58, 61 on self-interest of Publius 60 Federalist #2, on American people as united people 53–4, 61–2 Federalist #3, on safety in union 62–3 Federalist #4, on nonunified government and foreign aggression 63 Federalist #5, on confederacy or a single nation 63–4, 83 Federalist #6 on human nature and necessity of constitutional government 46 on utility of union for national defense and commerce 64–5 Federalist #7, on land disputes, interstate commerce, and state debts 65–6 Federalist #8, on standing army 66–7 Federalist #9, on science of politics and new nation 68–71 Federalist #10 on control of factions 71–5 Federalist #51 arguments and 107–8 on government protection of property 75, 78–81 on improvements to republicanism under Constitution 52 on liberty and safety and property 81–3 on property definitions 76–8 on property ownership and equality 75–81 on public good and proper system of representation 19

on religious or moral constraints on citizens 54 on separation of powers and public good 20, 51 Federalist #11, on commercial protection by government institutions 83–4 Federalist #12, on commerce and good government 51, 84–5 Federalist #13, on trade relations as a nation 85 Federalist #14, on kindred blood of American citizens 54, 85 Federalist #15 on control of factions 74 on need for new constitution 86 on republic constraints on factional passions 74 Federalist #16, on coercion to coordinate unity under Articles of Confederation 86 Federalist #17, on national government vs. state power 86–7 Federalist #18, on Greek city-states’ deficiencies as confederation 87–8 Federalist #19, on Switzerland as confederacy 88 Federalist #20, on endurance of loose confederacies 88 Federalist #21, on deficiencies of current confederacy 89–90 Federalist #22 on common ties reinforced by institutions of government 83 on regulating commerce by central authority 90 on representation 90–1 on uniformity in laws under federal judiciary 145

Index Federalist #23, on powers of central government 91–2 Federalist #24 and #25, on standing army 93 Federalist #26, on legislative branch and military 93–4 Federalist #27 and #28, on enforcement of Constitution 94–5 Federalist #29, on right to revolt 94–5 Federalist #30, on taxation 95–6 Federalist #31, on dangers of national government’s taxing power 96–7 Federalist #32 on sovereignty of state governments 56–7 on state sovereignty and powers of national government 99 Federalist #33, on Necessary and Proper Clause 97–8 Federalist #34, on taxation 96 Federalist #35 on merchants as natural representatives in government 98 on taxation 96 Federalist #36, on merchants as natural representatives in government 96 Federalist #37 on historical examples of confederations 18–19 on new course for Constitutional Convention 99–100 Federalist #38, missing potential rise of administrative state 100 Federalist #39. on Constitution and republican principles 101–2

187

Federalist #40, on authority for Constitutional Convention 102 Federalist #41, reviews powers invested in new government 103 Federalist #42, on new government and international relations 103–4 Federalist #43 guaranteeing republican government in each state 104 on new government and harmony between the states 103 Federalist #44, on preventing states from turning tyrannous 103 Federalist #45 on interest of states through selection of Senators 105 on state powers relative to national government 103 Federalist #46, on national powers relative to state governments 103, 105 Federalist #47, on separation of powers 5, 106 Federalist #48, on checks and balances 106 Federalist #49 106–7 on judges as reason in government 148–9 Federalist #50, 106–7 Federalist #51 on ambition counteracting ambition 5, 49 on checks and balances 107–8 on factions canceling each other out 20 Federalist #52, on state oversight of House elections, 109–10

188 Index

Federalist #53, on interval for elections to House 110–11 Federalist #54, on 3/5s rule for slaves 111 Federalist #55, on census and representatives to House 111–12 Federalist #56, on ratio and quality of representatives 112–13 Federalist #57 on large districts and suppressing factions 21 on representatives and populace 115–16 Federalist #58, on preserving ratio of representatives to citizens 114–15 Federalist #59 on regulation of elections 116–18 Federalist #60 on checks and balances in national government branches 118–19 Federalist #61 on role of constitutions 119–20 on when and how elections are held 119–20 Federalist #62 on qualifications for Senators 122–3 on Senate mitigating public opinion expressed in the House 121 Federalist #63 on factions and House of Representatives 21 on national character of Senate 123–4 on Senate as protection from passions of majority 121–2 Federalist #64, on treaty power of President and Senate 124–5

Federalist #65, on Senate tribunals for impeachment of the President 125–6 Federalist #66 on balance of power and impeachment trials for President 126–7 on separation of powers and checks and balances 49 Federalist #67, on energetic executive 127 Federalist #68, on indirect election of President 128–9 Federalist #69, comparing President with New York governor 129–30 Federalist #70, on deficiencies of plural executive 130–1 Federalist #71 on duration of President’s term 131–3 on presidential authority 132–3 Federalist #72, on term limits for President 133–5 Federalist #73, on powers of the President 135–6 Federalist #74, on commanderin-chief and pardoning power 137 Federalist #75, on treaties 137–8 Federalist #76, on appointment powers of President 138–9 Federalist #77, on appointment and removal powers of President 139–40 Federalist #78 on attorneys’ virtues and independent judiciary 147, 170n. 3 Federalist #81 on judiciary power compared to 170n. 2 on judicial appointments and tenure 150–1

Index on judicial review 151–3 on judiciary power to construct laws 145–6 Federalist #79, on salaries for judges 153–4 Federalist #80 on power of judiciary compared to legislature 145 on powers of judiciary 154–6 Federalist #81 on judiciary interpreting law according to spirit of Constitution 156–7 on judiciary power moving beyond Montesquieu’s model 170n. 2 on state sovereign immunity 157–8 on trial by jury 158 Federalist #82, on judicial jurisdictions 158–9 Federalist #83, on jury trials and absence of guarantee of civil jury trials in Constitution 159 Federalist #84 on bill of rights 164–5 on location of new government 165–6 publication after ratification 42 Federalist #85 further dismissal of critics in 167–8 on national control of factions 17–18 publication after ratification 42 The Federalist Papers complexity of argument and structure of 2 Constitution ratification and 43–4 critiques of the present confederacy 86–91

189

editions of, recommended 7 on election regulation 116–20 on the executive 127–40 on federalism 55–8 on House of Representatives 109–16 on human nature 45–8 on the judiciary 140–60 on miscellaneous objections 7, 161 on need for more energetic government 91–9 on power of new government relative to power of states 103 published as a collection (1788) 1, 42–3 reading of, to establish representative governments anywhere 175–6 reading of, to understand Constitution, 174–5 reading of, to understand how significant people reference them 173–4 reasons for 40–3 on republicanism 51–3 on republicanism and federalism 99–102 sectional themes of 2–7 on the Senate 120–7 on separation of powers 106–9 on separation of powers and checks and balances 48–51 structure of 45 on union 53–5 on utility of union 58–85 Federalists on Constitution ratification and public good 14–15 as first political party 14 on human nature and republican government 16

190 Index

on national government 9–10 pressure for Bill of Rights by Pennsylvania 161 spokespersons for 15 spokespersons in New York for 171n. 6 Treaty of Paris and 125 trust in institutions by 23 fellowship, in small states, as foundation for government 31–2 Fifth Amendment 77, 78 First Amendment 77 First Continental Congress 61 force, use of, to coordinate unity under Articles of Confederation 86, 88 foreign aggression, 62, 63 see also war foreign relations 103–4, 138, 154–5, 160 see also trade; treaties founders democracy as concern for 121–2 as heterogeneous group 125 modern response to errors by 111 on reason in judiciary 147–8 reason in writing Constitution by 149 Franklin, Benjamin 121 free speech, Madison on property and 76 gay marriage 26 geographical distance 28–9, 86–7, 115 geographical jurisdiction 158 George III, King of England 15, 18, 109, 116–17, 160 Georgia First Continental Congress without 61

independent judiciary in 157 ratification of Constitution by 40 rejection of Annapolis Convention by 37 Gerry, Elbridge 14 good see also public good Publius’ avoidance of definition for 88 good government see also republican government anarchy–tyranny balance and 69–70 commerce and 51 outside of nations with Western intellectual tradition 175–6 Papers addressing 4 greed, opponents to Constitution as motivated by 59 Greek city-states (ancient Greece) anarchy and tyranny of 142–3 assemblies of 113 as commercial republics 65 executive functions by officers elected by people of 124 failure of 15, 17, 87–8 Jefferson on citizen soldiers of 93 as petty republics 68 preserving individual and public good in 25 war due to men’s vices in 64 Guaranty Clause 104, 105 Hamilton, Alexander see also Publius on Annapolis Convention 37 on Bill of Rights 163–4 brief biography of 13 as Federalist in New York 171n. 6 on human nature, its passions, and necessity of government 47–8

Index on judicial common sense 146 national bank and 97, 103 on personal protection and security of property 154 public relations campaign for New York ratifying the Constitution 41–2 on sacred rights of mankind 61 self-interest in ratification of Constitution of 60 on separation of powers and checks and balances 48 writing as Pacificus 11 writing as Publius 1, 10–12 Henry, Patrick 14, 18, 29, 37–8, 112 history see also Greek city-states; Rome of colonies, united people and 61–2 Federalists vs. Anti-Federalists on lessons from 18–19 institutional design as break from 57–8, 142–3 Montesquieu and Blackstone on judiciary and 141–2 political, changing the course of 58–9 reason as basis for founding a country and, 149–50 Hobbes, Thomas 16 Holy Roman Empire 64 see also Rome homogeneous society, Anti-Federalists on 23–4, 27–8, 32 House of Representatives see also legislature; representatives actions against public good by 21 appointment power and 140 Cato on lack of national homogeneity and 32–3 diplomacy in foreign relations and 138

191

direct election of 56 The Federalist Papers on 5–6, 109–16 institutional restraints on Senate of 49, 108 proportional representation in 91 Senate attributes compared to 120–2 veto overrides by 136 human nature see also passions of man; separation of powers and checks and balances American people as united people and 54 Anti-Federalists on republican government and 15 checks and balances and 107–8, 124–5 defining, in discourse of political theory 16 diversity of opinion and 72 The Federalist Papers on 45–8 re-eligibility of President for election and 134–5 war likelihood and 64 impartiality, pseudonyms and 10–11 impeachment trials balance of power and checks and balances for 126–7 for federal judges 150, 153 Senate as tribunal for 125–6 income tax 96 see also taxes Independent Journal 41, 156, 158 individuals Anti-Federalists on republican government and virtue of 16–17 Anti-Federalists on small government and 24–5

192 Index

Philadelphia Convention effect on character of 57 inferior courts, Supreme Court’s judicial authority and 157 instability see also anarchy; stability Federalists on national control of 14–15 Federalists on private liberty and 23–4 national control of factions and 17–18 institutional restraints 23, 32, 48, 148 see also separation of powers and checks and balances institutions, governmental common ties of unified people reinforced by 83–4 design of, as break from history 57–8, 142–3 fears of cultural and material loss through bias by 176 instrumental rights see also rights codified in pre-Constitution state constitutions 163 on property protection 78, 83 interest, sustained and aggregate see also self-interest checks and balances and 51 majority factions in large republic and 73 interstate commerce 66, 84–5, 104 Intolerable Acts, 61 Jay, John see also Publius brief biography of 13 as Federalist in New York 171n. 6 self-interest in ratification of Constitution of 60 Treaty of Paris and 125 writing as Publius 1, 10–11

Jefferson, Thomas see also Declaration of Independence on The Federalist Papers 43 on George III dissolving Representative Houses 109 on national government role in election regulation 117–18 on standing armies 93 as states’ rights advocate 14 Jeffersonians see Anti-Federalists judges, evaluating use of The Federalist Papers by 173–4 judical review 140, 151–3 judiciary appointed by President, impeachment trials and 125–6 appointments to 150–1 authority of 146–7 The Federalist Papers on 7, 109, 140–60 historical context for 142–4 independent, Publius’ defense of 156–7 institutional restraints on legislature of 49, 108 to interpret law according to spirit of Constitution, 156 judicial review by 151–3 Montesquieu on neutrality of 170n. 3 national, states concerns on jurisdictional supremacy of 158–9 powers of 145–6 reason as basis for decisions of 147–9 salaries for judges 153 Judiciary Acts (1789, 1891) 140 Judiciary and Removal Act (1875) 140 jury, trials by 158, 159–60

Index Kenyon, Cecelia 16 Kesler, Charles R. 7 Ketchum, Ralph 23 land disputes, in unsettled western territories 65–6 landed property see physical property Lansing, John 164, 171n. 6 large government (republic) 73, 95 see also size of republic large states 90–1, 123 laws community, for the public good 28 U.S., judiciary to hear cases regarding 154 lawyers evaluating use of The Federalist Papers by 173–4 as judges and justices 147, 170n. 3 leaders, of new governments 176 see also statesmen learned professions 147 see also lawyers Lee, Richard Henry 36, 39 legislature (legislative branch) see also House of Representatives; Senate to be unconstrained when raising a military force 93–4 checks and balances and 54 courts inferior to Supreme Court and 157 independent executive and 136 independent judiciary and 156–7 institutional restraints on executive of 49 laws of, judiciary to hear cases regarding 154 Papers addressing 109

193

power of purse, President’s compensation and 135 salaries for judges and 153 as subordinate to judiciary 145, 146 Leviathan, The (Hobbes) 16 liberty Anti-Federalists on small, homogenous government and 23–4 balance of national government power with 118 control of violence of factions and 71–2 diversity of opinion and 72 Federalists vs. Anti-Federalists on understanding of history and 19 Madison on property and 81–3 private, Federalists on public good and 23 property protection and 78–9 reason as basis for founding a country and 149–50 separation of powers as element guaranteeing 106 Lives (Plutarch) 10 Livingston, Robert (Chancellor) 42, 171n. 6 local public good, national military spending conflicts with 25–6 location of new government 165–6 Locke, John 75, 76–7, 79–80, 81, 154 Madison, James see also Publius Annapolis Convention and 36 Bill of Rights and 67–8, 160, 161, 162 brief biography of 12–13

194 Index

on Constitution adoption without amendment or revision 39–40 definitions of property and liberty by 76–8 on government protection of property 75 on Henry’s opposition to constitutional convention 38 on past failures of confederacies 17 on private property protection and inequality 79–81 on reading The Federalist Papers 43–4 on republican government in states 104 self-interest in ratification of Constitution of 60 on Treaty of Paris 125 on understanding the Constitution 174 Virginia Plan and 90 writing as Helvidius 11 writing as Publius 1, 10–11 on writing procedures for The Federalist Papers 11–12 Magna Carta 164 majority factions 71–3 see also factions Marbury v. Madison 140 Marshall, John 12 Maryland independent judiciary in 157 Mount Vernon Conference (1785) and 36 proposed amendments sent to Marylanders by 161–2 ratification of Constitution by 40 rejection of Annapolis Convention by 37

Maryland Farmer (Anti-Federalist) 19 Mason, George 14, 28 Massachusetts Annapolis Convention and 37 on Bill of Rights 161 independent judiciary in 157 ratification of Constitution by 40 McClaine from N. Carolina 26 McCullough v. Maryland 96 McWilliams, Wilson Carey 31 military 83–4, 130, 137 see also army; national defense; navy military bases, national spending choices, local public good issues and 25–6 militias, Second Amendment on 67, 93–4, 95 minority factions 71–2 see also factions Minot, George 12 modern government theory, on democracy vs. republicanism 111 monarchy, 6, 37–8, 130, 136 see also England, King of Montesquieu as authority on size of republic 70 on centralizing governmental power 55 on government promoting liberty and stability 149 influence on founders 141 on the judiciary 140 on judiciary separate from other branches 154 on neutrality of judicial tribunals 170n. 3 Publius on judiciary power to construct laws and 170n. 2

Index Publius on judiciary vs. 146 on separation of powers 49, 58, 106 Mount Vernon Conference (1785) 36 mutual good, Federalists on public good as synonymous with 27 national authority, of Constitution 94–5 national bank 97 national defense 53, 62, 64, 66–7, 103 see also army; military; navy National Gazette 76, 80 national government efficiency of disjointed confederacy vs. 167 election regulation and 117–18 judiciary promoting 147 nations, as naturally quarrelsome 63 natural law, on individual property 77 natural power, in small vs. large governments or societies 31 nature of man see human nature navy, strong, for commercial protection 83–4 Necessary and Proper Clause 97–8, 99, 105 Netherlands see United Netherlands Neutrality Proclamation, Pacificus–Helvidius debates on 11 New Hampshire Annapolis Convention and 37 independent judiciary in 157 proposed amendments sent with ratification documents by 162

195

ratification of Constitution by 42 ratifying convention in 40 New Jersey, Annapolis Convention and 37 New Jersey Plan 90–1 New York Annapolis Convention and 37 Anti-Federalist majority in ratifying convention of 40 citizens of, as target of The Federalist Papers 1 Constitution of, U.S. Constitution compared to 129–30, 167–8 debate over Constitution ratification and 14–15 governor of, executive compared to 6, 129–30 ratification of Constitution by 42, 58, 169 ratifying convention in 44, 164 New York City 84, 98, 166 New York Journal 128 North Carolina Annapolis Convention and 37 Bill of Rights passage and Constitution ratification by 67, 161, 163, 170 independent judiciary in 157 northern states, government institutions and commerce with southern states and 84 opinions diversity of, human nature and liberty and 72 as property, Madison on 76 orbit of republic, enlarging 70 Pangle, Thomas 50–1 pardoning power 137 “Parties” (Madison, 1792) 80

196 Index

passions of man see also human nature Anti-Federalists on public good and 24 checks and balances and 52–3 factions and 72 Montesquieu on separation of powers based on 58 necessity of government and 46–8 negative, control of under Constitution vs. Articles of Confederation 59–60 reasonable choices by judiciary and 148 re-eligibility of President for election and 134–5 restraining, small states and 30 trials by jury and 160 Paterson, William 38–9, 90–1 Pennsylvania Annapolis Convention and 37 Anti-Federalists in, on Necessary and Proper Clause 97–8 independent judiciary in 157 on property protection 161 ratification of Constitution by 40 Pennsylvania Gazette 44 people see also citizens checks and balances and 106–7 definition of 116 as members of states bound to new Constitution 101–2 opinion of, presidential authority and 132–3 Representatives as filter to views of 73, 121 Senate as check on capricious nature of 121 unified, common ties reinforced by governmental institutions 83–4

united, American people as 53–4, 61–2 widely dispersed, difficulty of rallying to revolt by 95 personal rights, property acquisition and protection and 79 Philadelphia Convention 1, 36, 37–40 physical property 77–8, 81 see also property Plato 109 plural executive, deficiencies of 130–1 Plutarch’s Lives 10 political class see politicians political discourse see debate(s) political knowledge, representation and 29 politicians 53, 63, 115–16 see also statesmen politics, science of improved government design due to 52 institutional framework to channel human nature and 72 reason as basis for founding a country and 149–50, 170–1n. 4 separation of powers in republican government and 70 superiority of Constitution over earlier republics due to 46, 142–3 polls, presidential authority and 132 populace see people popular will see passions of man positive law as derived from natural law 77 property acquisition under 79

Index power, governmental see also separation of powers and checks and balances election regulation and 117–18 Federalist #23 on 91–2 property protection, property destruction and 79 Preamble of the Constitution, on consent of the united people 54 President see also executive as commander-in-chief 137 duration of term for 131–2 impeachment trials for 125–6 indirect election of 128–9 institutional restraints on passionate nature of man and 48, 108 judicial appointments by 150–1 national outlook of 115 pardoning power of 137 popular opinion and authority of 132–3 recess appointment power of 128 treaty power and 124–5, 137–8 veto power of 129–30, 135, 136 Printz v. United States 173 probability, logic of, qualified representatives and 20–1 property Anti-Federalists on equal division of, in a republic 30 Madison on government protection of 75, 78–81 Madison on liberty and safety and 81–3 Madison’s definitions of 76–8 New York Convention on preservation of 164 ownership, equal or unequal division of 74

197

right to, protection of liberty and 153–4 Virginia’s Bill of Rights on preservation of 162–3 “Property” (Madison, 1792) 80–1 pseudonyms, writing using 10–12 public good Anti-Federalists on small government and 24–5 Cato on lack of national homogeneity and 32–3 Constitution and promotion of 9–10 Federalists vs. Anti-Federalists on how to get things done in government and 23 Federalists vs. Anti-Federalists on understanding of history and 19 homogeneous societies and 27–8 local vs. national self-interest and 26–7 military spending and local vs. national 25–6 national government vs. state and/or local government debate and 15 private liberty and 23–4 promotion of equality at expense of property as threat to 82 promotion of fellowship and deliberation by Anti-Federalists and 30–1 protection of private property and 79–81 Publius on Constitution ratification and 14–15 Publius on opponents to Constitution and 59 re-election of the President and 134

198 Index

representation and 28–9 self-interest of re-election of President in pursuing 134 separation of powers and checks and balances and 72 separation of powers, deliberative process and 20 veto power of President and 136 Publius see also individual Federalist Paper numbers Federalist viewpoint of 14 as Federalists’ spokesperson 15 as pseudonym 1–2, 10–12 public opinion campaign by 119 quartering soldiers without consent of owner, prohibition of 67, 93 Randolph, Edmund 90 ratification Framers on no amendments or revisions and 39–40 New York controversy over 40–1 state debates on 43–4 ratifying convention(s) in New Hampshire 40 in New York 44, 164 reading records of, to understand Constitution 174 reason as check on government action, federal judiciary and 147–9 institutionalized in founding a country 149–50, 170–1n. 4 Publius on appeal to 175 rebel, right to 94–5 recess appointment power 128

re-election of the President 7, 134–5 regulatory function of Congress, Necessary and Proper Clause and 97–8 removal powers of President 139 representative government see also republican government outside of Western intellectual tradition 175–6 representatives see also House of Representatives; statesmen Anti-Federalists on size and distance of district and 28–9 citizen participation as check on 52–3 distance between government and 115 to House, census on ratio for 111–12 to House, population shifts and 112–13 for large states and small states 90–1 of local interests at national level 115 preserving ratio to citizens of 114–15 private and public interests in small districts and 30–1 qualified, in small vs. large republic 20 republican government (republicanism) see also statesmen advantages of 73 capriciousness of human nature and 46 Constitution and principles of 101–2 democracy vs. 121–2 The Federalist Papers on 45, 51–3

Index House of Representatives as fundamental to 109–10 institutional restraints on factions under 72–3 national government vs. state and/or local government debate and 15 President’s authority with advice and consent of Senate on treaties and 124–5, 137–8 trials by jury in civil cases and 160 revolt, right to 94–5 Revolutionary War, Washington on Articles of Confederation and 35 Rhode Island Annapolis Convention and 37 Bill of Rights passage and Constitution ratification by 170 Philadelphia Convention and 36 ratification of Constitution by 163 rights debate over public and private 23 economic, politicization of 83 instrumental, codified in pre-Constitution state constitutions 163 instrumental, on property protection 78, 83 local vs. national, Anti-Federalists vs. Federalists on 26–7 social, property acquisition and protection and 79 Rome see also Holy Roman Empire anarchy and tyranny of 142–3 Jefferson on citizen soldiers of 93 Madison on failures of confederacies of 17

199

as petty republic 68 plural executive in 130–1 Roosevelt, Franklin D. 129 Rossiter, Clinton 7 Rousseau, Jean Jacques 27 rule of law 109–10, 143 Rush, Benjamin 35 safety Madison on property and 81–3 in union 62–3 Scottish Enlightenment 12 Second Amendment 67, 93–4, 95 sectionalism, as element weakening the nation 63–4 seizures of property, governmental, Madison on 78–81 self-interest see also interest, sustained and aggregate Anti-Federalists on republican government and 16 delay and debate in republics and 73–4 local vs. national, Anti-Federalists vs. Federalists on 26–7 opponents to Constitution as motivated by 59 Senate see also legislature advice and consent for appointments by 139, 150–1 advice and consent for treaties by 124–5, 137–8 The Federalist Papers on 6, 109, 120–7 House attributes compared to 120–2 institutional restraints on House of 49, 108 national outlook of 115 recess appointment power and 128

200 Index

representation in 91 as tribunal for impeachment trials of President 125–6 Senators 56, 105, 122–3, 170n. 1 separation of powers and checks and balances deliberative process, public good and 20 The Federalist Papers on 45, 48–51, 106–9 horizontal and vertical, for the common good 72 for impeachment trials of the President 126–7 Montesquieu on replicating history with 141 passionate nature of man and 48 powers of central government and 92 vertical application of, federal system and 54–5 Seventeenth Amendment 105, 122, 170n. 1 Seventh Amendment 158, 160 Shays’ Rebellion 17, 64 Sherman, Roger 91 Shklar, Judith 51–2 Sixteenth Amendment 96 Sixth Amendment 158, 160 size of republic 20, 21, 28–9, 73 see also large government; small government slavery and slave trade 13, 81, 104 slaves, 3/5s rules for 111 small government (republic) see also representatives; size of republic Anti-Federalists on decisionmaking and public good in 24–5 homogeneous, Anti-Federalists on liberty and 23–4

majority factions in 73 qualified representatives in large republic vs. 20 small states 90–1, 123 Smith, Melancton 36, 171n. 6 social rights, property acquisition and protection and 79 Socrates 113 South Carolina independent judiciary in 157 proposed amendments sent with ratification documents by 161 ratification of Constitution by 40 rejection of Annapolis Convention by 37 southern states, government institutions and commerce with northern states and 84 sovereignty of state governments Anti-Federalists on government control in hands of people and 22–3 debates over, Necessary and Proper Clause and 97–9 federal and not national Constitution and 101–2 Federalist #32 and Tenth Amendment on 56–7 spending function of Congress 25–6, 97–8 stability see also instability balance of liberty and 118 reason as basis for founding a country and 149–50 states see also large states; small states; sovereignty of state governments Anti-Federalists’ concerns on national government interference with 89 courts inferior to Supreme Court and 157

Index federal judiciary authority and 144–5 federalism role of 56 governors, recess appointment power of 128 Guaranty Clause on republican government in 104 with independent judiciaries 157 judiciary to hear cases with or between 154–5 legislatures, appointment of Senators 56, 105, 122–3 national government role in election regulation and 117–18 on national judiciary with jurisdictional supremacy 158–9 qualifications of electors, rules of elections and 110 repayment of debts of 66 represented by Senators 121, 122–3 separation of powers of three national governmental branches and 106 sovereign immunity of 157–8 structural similarities of Constitution to constitutions of 106, 119 states’ right advocates 14, 26–7, 55 see also Anti-Federalists statesmen see also politicians enlightened, treaties and 124–5, 138 representing national union, professionalism of 63 unenlightened, separation of powers and checks and balances and 72, 108, 113–14 statute law 146 Storing, Herbert 24

201

Story, Joseph 153 subject matter jurisdiction 158 subnational governing units, federalism and 56 suffrage 110, 116 see also citizens Supreme Court see also judiciary appointed by President, impeachment trials and 125–6 citing The Federalist Papers in recent cases 173 on due process clause 164 jurisdictional disputes and 159 original jurisdiction for 157 Switzerland, as confederacy 88 taking of property, governmental, Madison on 78–81 taxes (taxation) 84, 89–90, 95–6, 167 Tenth Amendment 56–7 tenure of judges 150–1 term of office elections and 6 length of, for Presidents 7, 131–2, 133 limits on, for President 129, 133–5 for Representatives 110–11 for Senators 120, 122 Texas v. White (1869) 102 Third Amendment 67, 93 Tocqueville, Alexis de 153 trade 85, 90, 104 treason, authority for Constitutional Convention and 102 treaties 62–3, 124–5, 137–8 Treaty of Paris, terms of 125 Tredwell, Thomas 164 trials by jury 158, 159–60 Twenty-second Amendment 129, 131

202 Index

tyranny anarchy in Greek and Roman republics and 69 Anti-Federalists on national control as 15, 64 of England, unified America against 62 majority, federal and not national Constitution and 101–2 national, states as bulwark against 55 national government vs. state power and 86–7 separation of powers to inhibit 48–9 union as better equipped to deal with foreign threats 62 factional control of government and 3 The Federalist Papers on 45, 53–5 national bank and 103 stronger, commerce and 50–1 utility of, introduction and discussion on 4, 58–85 United Netherlands, as confederacy 87 United States, judiciary to hear cases between citizens and 154 veto power 129–30, 135, 136 vice(s) in government, as positive element 58 of men, new government and 65

Virginia Annapolis Convention and 37 Bill of Rights for 162–3 Constitutional Convention (1829) 79 Declaration of Rights (1776) 162 independent judiciary in 157 Mount Vernon Conference (1785) and 36 ratifying convention in 40 Virginia Plan 90, 91 virtue see also democracy; statesmen of citizens, Publius’ assumption of 113–14 of individuals, Anti-Federalists on republican government and 16–17 of leaders, Carey on deliberative power and 22–3 of leaders or people, institutional design vs. 142 war, 62–3, 64, 67, 93 see also military; national defense Washington, George 13, 35, 36, 58, 129 weights and measures, international trade and standard set of 104 Western intellectual tradition, representative government outside of 175–6 Winthrop, James, 26–7 see also Agrippa Witherspoon, John 12 Yates, Robert 47, 151–2 see also Brutus