In the “deep midwinter” of 2018, I taught a Christopher Wren class on The Federalist – often called The Federalist Papers. Despite the fact that this is a heavily academic topic, and that it was offered on three consecutive (and cold) Monday mornings in February, the 130-seat class was full, with a waitlist, and the people enrolled in the class showed up. This is proof that there’s not much to do in Williamsburg during the winter.
Just as a refresher – The Federalist was a series of essays written in support of the newly written Constitution. Alexander Hamilton wrote 51 of these essays, James Madison wrote 29, and John Jay wrote five. The essays were originally published In several New York newspapers under the pseudonym Publius between October 1787 and August 1788. A compilation of these essays was published in two volumes in the spring of 1788 and distributed to the state ratifying conventions.
I began the class by providing information about the context of The Federalist – the Transatlantic Enlightenment, the Constitutional Convention, and the ratification process in the states, among other topics. Then I started talking about the papers themselves.
There are 85 essays, so I had to pick and choose what to talk about. I decided to talk about Federalist No. 1, Federalist No. 10, Federalist No. 39, Federalist No. 51, Federalist No. 68, Federalist No. 78, and Federalist No. 84. I focused on two of them each week. Here’s a summary of what I presented to the class, with snips from my PowerPoint slides.
Federalist 1:
Written by Alexander Hamilton and published on October 27, 1787, this paper serves as a general introduction to the series. The question Hamilton addressed in this paper was “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.” He went with Door #1 -- that men are capable of establishing good government from reflection and choice. It took him a lot of words to make this point. Trust me. At this point no states had yet ratified the Constitution – Delaware would be the first to ratify, on December 7, 1787.
Federalist 10
Written by James Madison and published on November 23, 1787, this paper is among the most frequently quoted of this series of essays. Still, no states had yet ratified the Constitution.
If you follow the arrows, you follow Madison’s argument. His premise is that “faction” – political disagreement – has a negative impact on governing, and that uneven possession of property is the cause of faction. So, as a good Enlightenment philosopher who thinks rationality is the best way to address problems, he posits two possible solutions to this conundrum – you can either eliminate the causes of faction or control the effects. He explores the first option – eliminating the causes of faction – and decides that it is not possible without limiting the very freedom that the Constitution was supposed to guarantee. So you have to exclude the boxes I have colored in red.
He then explores the other option – controlling the effects of faction – and looks at various kinds of faction. He says minority faction isn’t a problem – it will be controlled through elections and so forth – but that you have to acknowledge that majority faction could attempt to limit the freedoms of people who are not part of that majority. So he first asks if it’s possible to eliminate the causes of majority faction, and answers in the negative – for the same reasons that it’s impossible to eliminate factions altogether. So then he says it is necessary to control the effects of majority faction – what he called the “tyranny of the majority” – and says that checks and balances, separation of powers, federalism, and an extended (large) republic will lessen the likelihood that a tyrannical majority will emerge. And lo and behold, that is exactly what the Constitution creates! Imagine that!
Federalist No. 10 is sometimes used (by supporters of the electoral college and the senatorial filibuster) as justification for minority rule. That’s not what Madison meant. All you have to do is read a little more about Madison’s views to understand that. Or you could believe the scholars who have read a lot about Madison. They’re not hard to find. No legitimate scholar says that Madison (or the other Founding Fathers) supported minority rule.
Federalist 39:
Written by James Madison and published on January 18, 1788 (five states had ratified the Constitution by this date – Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), this essay addresses the way powers are shared between the central and state governments. We call this “Federalism” today, but this term was not used at the time of ratification. We all know that the states were concerned that their powers would be weakened (and eventually eliminated) under the Constitution, so Madison’s job was to tell them they had nothing to worry about. The two perspectives Madison explains were called “National” – people who want a stronger central government – and “Federal” – people who want stronger state governments (more like what we would call a Confederacy today). The meaning of words changes over time.
Madison argues that the Constitution is actually more state-friendly than its critics think it is, and that they have nothing to worry about.
Madison looks at six areas of concern to opponents of the Constitution and analyzes each to see if their fears are borne out. He concludes, not surprisingly, that the Constitution actually recognizes and valued State power.
Ratification: He noted that this should be appealing to the Federal perspective – those concerned about states’ rights – because ratification is to be done state-by-state.
Election of the House: He noted that this is, yes, more favorable to the national perspective, as it emphasizes the popular vote and does not allow the states, as governmental institutions, to be part of this electoral process. People concerned about states’ rights should just get over it.
Elections of the Senate: He notes that this should appeal to the Federal (states-rights) perspective, as the state legislatures are given sole power to select the members of the Senate.
The rest of the issues – Election of the President, making policy (passing laws), and Amending the Constitution are shared powers – he uses the word “compound.” He claims that because these powers are shared, the believers in the “Federal” perspective should not be alarmed – there is still plenty of opportunity for the states to exercise power.
Federalist No. 51
Written by James Madison and published on February 8, 1788, Federalist No. 51 addresses the necessity for separation of powers and checks and balances to control the actions of the newly created central government. At this point, six states have ratified the Constitution – add Massachusetts to the list above.
Here are a few quotes from Federalist No. 10:
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But 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.”
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Madison begins by stating his opening premise – that it is important to maintain the separation of powers to prevent one branch from gaining too much power. He says that there are external barriers that protect against this – the legislative process written into the Constitution at the Convention and the public resistance that such an accumulation of power would create. He then goes into detail about the internal constraints: the independence of each branch of government, the bicameral legislative structure, and the executive veto power. Once again, he stresses that these restraints are embodied in the Constitution, and he urges its ratification.
Federalist No. 68
Written by Alexander Hamilton and published on March 12, 1788, Federalist No. 68 explains the process of electing the president, focusing specifically on the Electoral College. At this point, still only six states have ratified the Constitution.
In this essay, Hamilton argues the advantages of the indirect electoral process described in the Constitution. I wrote about this part of our Constitution in my June 1 essay in this series; here’s the intro to that piece:
The method of electing the President and Vice President didn’t get much attention at first, because at first there was little disagreement about it. The Virginia Plan and other early ideas assumed that the Executive would be chosen by the legislature – by the Congress – much like we see in a Parliamentary system today. But once the issue of the structure of the legislature was settled, the focus turned to the executive, and three other processes were suggested:
election by state governors,
election by state legislature, and
direct election by voters.
The more the delegates to the Constitutional Convention discussed this issue, the greater were their disagreements. Finally, they referred this problem to the “Committee of Eleven on Postponed Matters” – my all-time favorite name for a committee. I think every organization should have a Committee on Postponed Matters.
In reality, no one spent much time analyzing the Electoral College proposal; it was presented to the Convention on September 4, and the Constitution was signed on September 17. No one thought much about it at all – they were just glad to go home.
So when Hamilton writes Federalist 68, his unenviable task is to defend something he almost certainly hasn’t thought very much about. Unlike the other Federalist papers, there is very little philosophy. He defends it by making pretty weak arguments, saying that the Electoral College accomplishes the following things:
It captures the “sense of the people”
It ensures that the President would be chosen by “the best men”
It provides “Little Opportunity for Disorder”
It “excludes self-interest”
It spreads the process across the states
In reality, he doesn’t know how it will work and his weak defenses of it add little substance to the discussion.
Federalist No. 78
Written by Alexander Hamilton and published on May 28, 1788, Federalist No. 78 sets out to explain the structure of the Judicial Branch and explain the concept of judicial review. He is hampered by the fact that the Constitution doesn’t say anything specifically about judicial review; rather, it is an implied power based on Article III (the part of the Constitution that established the judicial branch) and Article VI (containing the Supremacy Clause, which states that the Constitution is the Supreme Law of the Land). The process and implications of judicial review would not be set out until 1803, when Marbury vs. Madison established how it would work. At this point in 1788, eight states have ratified the Constitution – add Maryland and South Carolina to the list.
In this essay, Hamilton explores the need for some part of the government to be able to adjudicate whether another branch of the government has exceeded its powers. He says that the judicial branch should hold this power. He does this through a couple of arguments.
He goes on to explain his argument further:
We should be clear here: Hamilton is making stuff up, explaining the power he would like the Supreme Court to have, although the writers of the Constitution didn’t give the court that power. Why didn’t they? Well, I think the explanation lies in fatigue and a long, hot summer in Philadelphia. Article I of the Constitution uses 2,268 words to describe the legislative branch (more than half of the entire Constitution), and Article II uses 1,023 words to describe the executive branch (about 23% of the Constitution). Article III uses only 377 words (8% of the Constitution) to describe the judicial branch.
I think the best explanation for this disparity is that the delegates to the Constitutional Convention were hot (remember the closed doors and windows thing? Now recall that the delegates didn’t have access to regular bathing or changes of clothing and that it was high-summer in Philadelphia). They were also probably tired of arguing over the form that their government would take – they had been at it since May. Delegates were departing every day – some just for short visits home, but others had left for good. They needed to get this thing done. So after they had resolved the most pressing issue – the shape and form of the legislative branch – they rushed through the other articles. Remember the discussion of the Electoral College above? They were pretty sure it was a bad idea but they approved it anyway because it was already September.
When you look at Article III, it’s obvious that they were over it. Here’s how they describe the structure of the court system in Article III, Section I:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
They’re basically saying that there will be a supreme Court (note the lower case “s”), but they’ll let someone else figure out the rest of the court system. Compare this to the detailed language for the structure of the two houses of Congress. I think their “original intent” regarding the judicial branch was to get the heck out of Dodge.
Federalist No. 84
Written by Alexander Hamilton and published in several installments between July 16 and August 9, 1788, Federalist No. 84 is the FAQ section of The Federalist. By the time this essay is published, 11 states have ratified the Constitution, two more than the nine that were required for it to go into effect. It is a done deal. But concerns about the absence of a Bill of Rights arose in several states during their ratification debates, so Hamilton addresses this concern in the final substantive essay of this series. (Federalist No. 85 is just a closing statement).
One interesting point about ratification – once nine states had ratified, the Constitution was considered adopted. But consider this:
The Confederation Government required Amendments to be approved unanimously – all 13 states would have to agree to an amendment
The Constitution was essentially an Amendment to the Articles of Confederation – a total replacement, but an Amendment nonetheless
The Constitution stated that it would go into effect when nine states had ratified it – but that clause wasn’t operative until the Constitution was ratified, right? Does anyone else see the circular argument here?
You could make the argument (and some did at the time) that the insistence on nine rather than 13 states for ratification was invalid. But it didn’t matter. Ratification by nine states shouldn’t have had any meaning. The requirement should have been 13. But it wasn’t, because – well, Constitution and Founding Fathers and yada yada.
Add to the fact that neither Virginia nor New York was among the first nine states to ratify the Constitution. Everyone knew that the whole thing would be a non-starter unless the two most populous and important northern and southern states ratified. Once Virginia learned that New Hampshire (the ninth state) had ratified, on June 21, 1788, three days later it jumped on the train that was leaving the station without them. New York ratified a month later, on July 26, 1790. North Carolina ratified on November 21. Rhode Island didn’t join the union until May 29, 1790, after it experienced what it was like to be outside of but surrounded by the union. Rhode Island’s economy was crippled by the trade barriers the new government was putting in place.
In this essay, Hamilton argues against the adoption of a Bill of Rights. Here’s a diagram that summarizes the reasons for his opposition:
We all know that Hamilton lost this particular argument and James Madison’s position in favor of a Bill of Rights prevailed. (You can raise this point when people rant about the “original intent” of the Founding Fathers: “Which Founding Father?”) When Madison ran for a seat in the first Congress in 1788, one of his campaign promises was that he would support a Bill of Rights. In the first Congress, in June of 1789, he introduced a series of amendments that formed the core of what became the Bill of Rights – the ten amendments that were ratified by ¾ of the states by December 15, 1791.
This would be the right time for me to wrap this up by recommending that you read The Federalist but I’m not going to do that. These essays are tedious and difficult to understand. Those boys never met a compound sentence or tortured syntax they didn’t like. There are easier ways to do this:
Here’s a source that contains the text of the Constitution, annotated by which of The Federalist essays addresses the Constitutional issue. https://www.miamieast.k12.oh.us/cms/lib/OH01001222/Centricity/Domain/167/federalist-papers-in-modern-language.pdf.
Here’s another source that has translated The Federalist into modern language. http://pdf.patriotpost.us/federalist_papers_in_other_words.pdf
Thanks for coming to my Ted Talk.
Terrific stuff. Love it!
Extremely interesting and informative. Thank you, Karen.