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1: Publius—a Split Personality? - George W. Carey, In Defense of the Constitution 
In Defense of the Constitution, revised and expanded edition, (Indianapolis: Liberty Fund, 1995).
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Publius—a Split Personality?
It may seem odd that I begin with an essay that touches upon what would, at first glance, seem to be an arcane academic quarrel concerning the authorship of certain essays in The Federalist. After all, how can such a dispute possibly bear upon our understanding of the Constitution and the intentions of the Framers? The answer is a bit involved, but, as I will show, the relationship is undeniably an important one.
This dispute over the authorship of these essays has now entirely subsided. But, until its resolution in relatively recent times, it provoked some anger and hard feeling among scholars as their debate over the relative merits of the competing claims of authorship took on a partisan character. In the course of these debates, as we might expect, the substance of the essays assumed importance on the unarticulated assumption that there were theoretical differences of sufficient degree and depth between Hamilton and Madison to settle the matter of authorship. Oddly enough, however, no one ever systematically set forth these differences in a manner that could authoritatively settle the controversy. And the question that still remains long after the smoke has cleared is why, if their theoretical differences were so pronounced, there should have been any dispute about the authorship in the first place. Or, to put this somewhat differently, if there were significant theoretical differences between them, why couldn’t this controversy, involving no less than one-fifth of the essays, be resolved in short order, the more so as certain of the papers in dispute were, by any standards, among the most theoretical of the lot?
The fact is that it was only after the disputed papers controversy was resolved by Douglass Adair in the mid-1940s (see text below) that relatively coherent and plausible claims concerning philosophical differences between Hamilton and Madison writing as “Publius” were advanced. But, as I point out below, those who advanced this thesis—and that would include Adair—pretty much assumed what they wanted to prove. They began, that is, with the assumption that there must have been significant differences between them in their views of the Constitution, the nature of man, the need for government, and so forth. They then selectively combed the text, or, what is worse, manipulated the positions of Hamilton and Madison, to prove their point.
There is room for intelligent speculation about the whys and wherefores of this alleged “split personality” within the framework of my introductory remarks. For the better part of his political life Madison was an ally of Jefferson. No doubt for this reason alone, revisionists feel the need to separate his thoughts from Hamilton’s to make it appear that the two were very uneasy allies in the ratification struggle. But the thesis serves other purposes as well. By contrasting the republican Madison with the “authoritarian” Hamilton, it amends and clarifies the revisionists’ position. For instance, in these terms Madison’s contribution to our founding and institutions can explain why Jefferson was favorably disposed towards the Constitution—a fact that early revisionists avoided like the plague. At the same time, given the picture painted by Hamilton, the revisionists’ interpretations gain credibility; that is, their charges can readily be accommodated to this view by maintaining that the system has in reality operated in accordance with Hamilton’s presumed design to thwart democracy and protect vested interests.
The “split personality” thesis, taken as a whole and developed fully, can provide a sufficiently expansive framework to explain or account for virtually every twist and turn, theoretical or otherwise, in our constitutional development. If it were valid, however, it would for this very reason leave us at sea without a rudder. By denying that “Publius” expressed a consensus and by asserting that he gave us not one, but two or more constitutional moralities, it leaves us uncertain of our heritage. What is more, it simultaneously lays the groundwork for the revisionist interpretations of our constitutional heritage to claim legitimacy.
publius—a split personality?
In 1944, Douglass Adair published a seminal two-part article, “The Authorship of the Disputed Federalist Papers.” 1 While this article is rightly celebrated for authoritatively settling the long-standing controversy surrounding the authorship of certain essays in The Federalist claimed by both Hamilton and Madison, it also advanced a thesis whose significance for scholars of the American political tradition far exceeds the resolution of this controversy.2 Specifically, Adair wrote that though Hamilton and Madison “agreed that the proposed Constitution should be ratified and laid aside all differences to bring this about ... the two statesmen’s radical divergence on what constituted good government gave Publius truly a split personality” (DP, 55). Eight years later, in an article entitled “The Federalist—A Split Personality,” Alpheus T. Mason echoed this thesis by maintaining that there are clearly discernible differences between Hamilton and Madison writing as Publius on basic issues and principles relative to the proposed Constitution.3 And Gottfried Dietze, in writing the first book-length analysis of The Federalist, found Mason’s “contributions” on this score to be “indispensable.” 4 Accordingly, Dietze saw fit to deal with the contributions of John Jay, Madison, and Hamilton to The Federalist in separate sections and chapters on the grounds, we may presume, that their positions and theories are sufficiently different to warrant such treatment.
Clearly this split personality thesis has far-reaching implications for scholarly inquiry into our political tradition. Obviously, if the lines of argument in The Federalist are as divergent as Mason, Adair, and other scholars intimate,5 then its status and role in our tradition must be reevaluated, particularly by those who have come to regard it as a relatively coherent and authoritative source for a fuller comprehension of the underlying principles of our constitutional system. Viewed from another perspective, however, the split personality thesis might lead us to a woefully inadequate understanding of the foundations of our political order. By emphasizing the differences between Hamilton and Madison, it could lead us to minimize or downplay the areas of substantial agreement surrounding the major underlying principles of the system. But, more significantly, the thesis would have us read The Federalist in a way not intended by its authors, that is, as the product of two pens, not one. And, because the authors regarded their work a coherent whole, it may well be that the “tensions” and seeming contradictions we find within its pages are not the result of differences between them on matters of principle or theory, but rather manifestations of basic, underlying difficulties—some of them perhaps insoluble—inherent in the proposed Constitution or republicanism.
In sum, the split personality thesis does pose difficulties for those who seek to come to grips with the teachings of The Federalist and, more generally, the nature of our political foundations. My purpose here is to critically examine this thesis with an eye to determining whether Publius does, as some scholars contend, speak with a forked tongue or whether, as equally serious students of the tradition hold,6 the alleged theoretical divergences are either exaggerated or contrived.
Split Personality Thesis: Development and Substance
At the outset we should note that, while Adair’s use of the disputed papers controversy to advance the split personality thesis seems understandable enough at first glance, the two concerns are, upon examination, theoretically distinct. More specifically, theoretical analysis confined solely to The Federalist only establishes with a relatively high degree of certainty Madison’s authorship of certain disputed essays (48, 49, 50, 51, 62, and 63).7 This, in turn, is accomplished by linking the substance of essay 10, whose authorship is beyond dispute, with the concerns of the disputed essays, primarily 51. By no means, however, can we take the validation of Madison’s claim to authorship of these disputed papers as validation of this thesis.
The resolution of the controversy over the disputed papers does touch base with the split personality thesis over the pivotal role of papers 10 and 51 for an understanding of the main pillars of Madison’s thought. Both Adair and Mason use these essays as a nucleus for their arguments, which are strikingly similar in substance and mode. Both see the major differences between Hamilton and Madison as centering around the immediate issues of controlling factions and the proper and prudent scope of popular sovereignty. They even manage to widen the scope of these differences by relating to these key essays seemingly disparate concerns, such as the proper relationship between the state and national authorities and the responsibilities of the departments. All of this they are able to accomplish, as we might expect, by contrasting certain of Hamilton’s arguments and positions set forth at various points in The Federalist with what they regard to be the logic of Madison’s extended republic theory set forth in essays 10 and 51. With this overview in mind, let us take a closer look at their analysis.
Mason writes that “John Quincy Adams did not take the trouble to spell it out, but he hit upon a most significant aspect of the ‘diversity’ in this great collaboration [ The Federalist ] when he described Hamilton’s number 9 and Madison’s number 10 as ‘rival dissertations upon Faction and its remedy.’ ” (SP, 636). But aside from arguing that Hamilton wanted to establish a “consolidated system,” “Union under one government,” “perfect subordination of the states to the general authority of the union” (all these goals presumably set forth by Hamilton in Federalist 9) whereas Madison on the basis of essays 10 and 51 was a pluralist who felt the existence of viable states with residual sovereignty essential for the national government, Mason does not elaborate extensively on the nature of this “diversity.”
Adair goes into this particular matter more extensively. He contends:
Hamilton felt so strongly about the need for an overruling, irresponsible and unlimited government that it showed through even in his Federalist essays, in spite of his attempt to conceal his opinions in order to achieve ratification. Federalist 9 indicates clearly that he expected a continual use of military force would be required to keep the rebellious poor in their place. In this essay the union is advocated because it will permit the use of troops raised in one section of the country to stamp out revolts in other districts.... Essays 23 and 30 mirror his belief that no government would endure without unlimited fiscal and military power and foreshadow his doctrine of “liberal construction” (DP, 68).
And, after quoting from the latter part of essay 51 to the effect that the multiplicity and diversity of interests renders an “unjust combination of a majority of the whole very improbable, if not impracticable,” he writes: “Madison, it is clear, had emancipated himself from the sterile dualistic view of society that was so common in the eighteenth century and that so obsessed Hamilton. Madison was one of the pioneers of ‘pluralism’ in political thought. Where Hamilton saw the corporate spirit of the several states poisonous to the union, Madison was aware that the preservation of the state governments could serve the cause of both liberty and union” (DP, 70).8
Likewise, both Adair and Mason detect authoritarian overtones in many of Hamilton’s essays, overtones that, they maintain, are absent from Madison’s contributions. Adair contends that in Federalist 51 Madison offers a republican remedy to Hamilton’s “overruling, irresponsible, and unlimited government.” 9 More specifically, in essay 51 Madison eschews the notion that a will, independent of society, is needed to prevent factious majority rule. And this, Adair argues, sets him apart from Hamilton: “discussion of the executive in Federalist 71 reveals his dearest hope that the president would develop an ‘independent will.’ And his analysis of the powers of the Supreme Court in Number 78 was in time to provide an enduring sanction for the development of an independent and irresponsible judiciary” (DP, 68–69).
Mason develops Adair’s contentions on this point more fully. Hamilton, he points out, favored a strong executive or at least one who would not bend “to every sudden breeze of passion or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests” (71:369). Mason continues: “Hamilton placed perhaps even greater reliance on the federal judiciary—-specially because of the provision for indefinite tenure of judges—as a safeguard against factions” (SP, 636–37).
For Mason there is also an “authoritarian” overtone in Hamilton’s essays devoted to the executive and judiciary. “In essay 71,” he writes, “one encounters Rousseau’s sentiments, that though the ‘people commonly intend the PUBLIC GOOD,’ they do not ‘always reason right about the means of promoting it.’ The exalted role carved out for the executive and judiciary, especially the latter, is faintly suggestive of Rousseau’s ‘Legislator’ — ‘a superior intelligence beholding all the passions of men without experiencing any of them.’ ” (SP, 637). But this, to Mason’s way of thinking, raises the same kind of problem inherent in Hobbesian theory, namely, “does not such executive and judicial preeminence call for considerable qualification of those unseemly qualities Hamilton elsewhere attributed to the general run of mankind?” (SP, 637–38) Hamilton, Mason postulates, must have held to the proposition that possession of power would have a “purifying effect” on the officeholder (SP, 638). On the other hand, Mason maintains, Madison’s solution to the problem of controlling government and factions rests upon the conflict and tensions between interests, sects, and classes—the operations of an unfettered pluralistic society.
The Expanded Split Personality Thesis Critically Examined
While there are other points made by Adair and Mason, these are the key issues upon which the split personality thesis rests. These issues are, moreover, potentially far more crucial than either Adair or Mason seem willing to let on. It simply will not do to note these alleged differences and then proceed to point out that the areas of agreement between Hamilton and Madison were far greater and more significant than their differences, or that the differences between them come down merely to shades of grey.10 The issues, as both Adair and Mason pose them, involve the critical question. What kind of regime is it that The Federalist is recommending for the American people? If we are to accept the split personality thesis, half of Publius is advocating a republican form, the other half an oligarchy of sorts. And, if this be so, The Federalist can only be viewed as a jumble, at least with regard to the most important element of the proposed constitutional system.
Bearing this in mind, we can profitably examine these contentions starting first with those that seem to derive from the so-called diversity between essays 9 and 10.
First, it is certainly far from clear, as Adair contends, that Hamilton “expected a continual use of military force would be required to keep the rebellious poor in their place.” Adair would appear to be referring to the very first sentence of Federalist 9 which reads, “A firm Union will be of the utmost moment to the peace and liberty of the States as a barrier against domestic faction and insurrection” (9:38). This statement as it stands is eminently sensible. In fact, Madison writing in Federalist 43 makes essentially the same point. For example, he quotes approvingly of a confederate republic: “ ‘should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound’ ” (43:226). On this score, Madison is, in effect, repeating what Hamilton had stated in essay 9.
Perhaps more to the point of Hamilton’s opening sentence is Madison’s remark that the national government’s “right to interpose” in cases of domestic violence and insurrection within these states “will generally prevent the necessity of exerting it” (43:226). Certainly from the examples and commentary in the very first paragraph of Federalist 9, this would seem to be the thrust of Hamilton’s argument; that is, a “firm Union” will serve to prevent the “perpetual vibration between the extremes of tyranny and anarchy” (9:38).
In any event, Adair’s contention that Hamilton envisioned “continual use of military force ... to keep the rebellious poor in their place” cannot be sustained from the text. What Adair has done is to extrapolate from Hamilton’s other writings or speeches to reach this conclusion.
Second, to show that Hamilton believed in “unlimited” and “overruling” government Adair makes reference to essays 23 and 30 which deal, respectively, with the defense and taxation powers of the national government. Let us see what Hamilton says in these essays that could justify these charges.
With regard to the national powers to “raise armies,” “build and equip fleets,” and so forth, Hamilton writes: “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. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed” (23:119). And in the very next paragraph he is to strike a theme that recurs in one fashion or another throughout The Federalist: the national government must possess the means necessary for the ends that are entrusted to its care. As he puts it: “the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained.” This proposition rests upon “axioms as simple as they are universal” (119).
Hamilton is both instructive and logical about the matter of common defense and the powers that the national government must possess to fulfill its obligation; he never flinches from the conclusions that flow from these axioms. “Whether there ought to be a federal government entrusted with the care of the common defense,” he writes, “is a question in the first instance open to discussion; but the moment it is decided in the affirmative, it will follow that the government ought to be clothed with all the powers requisite to complete execution of its trust” (23:119–20).
This same line of reasoning leads him to contend in Federalist 30 that the powers of the national government “to raise its own revenues by the ordinary methods of taxation” (that is, to possess the powers of sovereign states to requisition the necessary financial support to fulfill the ends entrusted to them) simply must replace reliance on the states to meet their requisitions (149).
The differences between Madison and Hamilton on these specific matters seem minuscule at best. Madison also subscribes to Hamilton’s axioms regarding means and ends: “No axiom,” according to Madison, “is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included” (44:232). Again, when it comes to the matter of the national government’s power to provide for the national defense, there seems to be no substantive difference between Hamilton and Madison. Madison writes: “The means of security can only be regulated by the means and danger of attack. They will, in fact, be ever determined by these rules and by no others. It is vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions” (41:210).
Finally, to the point of the differences between Hamilton and Madison concerning the powers of the national government, it is interesting to note how they describe the principal objectives of the proposed union. For Madison they are:
1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers (41:210).
The principal purposes to be answered by Union are these—the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and States; the superintendence of our intercourse, political and commercial, with foreign countries (23:119).
From this it would seem the two were remarkably close together on the substantive goals of the proposed system.
And, third, the charge that Hamilton in Federalist 9 advocates a “consolidated system,” “a perfect subordination [of the states] to the general authority of the union,” or, in other words, a unitary system, is also without textual foundation.
What Hamilton does do is enlist the authority of Montesquieu to answer critics of the proposed union who argue that an extensive republic must necessarily be short-lived. Using a lengthy quote from Montesquieu as a point of departure on the advantages of a “ confederate republic ” (9:40), Hamilton proceeds to argue that there is widespread misunderstanding concerning the essential elements or features of a confederacy. His purpose, it would appear, is to broaden the meaning or definition of confederacy so that the proposed system will fit within its confines. In any event, he concludes that “a confederate republic seems simply to be ‘an assemblage of societies,’ or an association of two or more states into one state.” The members of this association need not be considered as political equals, nor is the central government forbidden from acting directly upon individuals rather than through the governments of the member states. To argue otherwise, he contends, would be to adopt a position that is “supported neither by principle nor precedent.” He writes that “the extent, modification, and objects of the federal authority [that is, the central government of a confederacy] are mere matters of discretion”: (41).11
It is in this context that the quote “perfect subordination to the general government” appears. The passage from which this phrase is taken reads as follows and comes immediately after the sentence quoted above relating to the “extent, modification, and objects of federal authority” being matters of “discretion”:
So long as the separate organizations of the members be not abolished; so long as it exists, by a constitutional necessity, for local purpose; 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 (9:41).
This is clearly presented by way of showing what at a minimum would constitute a confederacy and is consonant with his apparent end of broadening the definition of confederacy so as to include the proposed system. However, it is crucial to note that he feels the relationships stipulated in the Philadelphia Constitution are well “above” the stipulated minimum. The proposed system, he informs us in the sentence immediately following the above quote, “so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.” He goes on to write that this arrangement “fully corresponds, in every rational import of the terms, with the idea of federal government” (9:41).
His reference to “certain exclusive and very important portions of sovereign power” that are retained by the states certainly does not render him a champion of states’ rights as they are contended for today. Yet such an admission certainly does cast grave doubts on the argument of the proponents of the split personality thesis who argue that Hamilton, unlike Madison, believed in a centralized and authoritarian system. And the fact is that, on these and other matters relating to federalism and state-national relations, there appears to be no principled difference between Hamilton and Madison. Both, for reasons set forth in Federalist 37, are necessarily vague and general about the relative powers of each government. Madison, for instance, is scarcely any more precise and informative than Hamilton when he writes that the powers of the national government are “few and defined,” whereas those of “the State governments are numerous and general” (45: 238). Nor can Madison be viewed as a champion of states’ rights in maintaining that the people, considered as a whole, should be free to repose their trust in whichever government, national or state, demonstrates “manifest and irresistible proofs of better administration.” And in adding that “the State governments could have little to apprehend” from such a process “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered,” he even undercuts the presumed constitutional status of the states’ residual powers (46:241).
I should add, rather than relegating the matter to a footnote, that, instead of driving a wedge between Federalists 9 and 10, the students of the document would do well to read them as complementary.12 Hamilton, to be sure, concentrates more on the traditional or formal arguments concerning the advantages to be derived from political union. However, in stressing the advantages of “ENLARGEMENT of the ORBIT” (chief among those principles of an improved science of politics), Hamilton consciously or unconsciously laid the groundwork for Madison to stress, as he had done at Philadelphia and in his writings, that the pluralistic nature of the proposed union would also operate to reduce the possibilities of factious rule or insurrection.13 To put this otherwise: rather than being in opposition, both see the advantages of an extended republic from different perspectives.
The second major dimension of the split personality thesis, as I have said, involves the scope and degree of popular control. Hamilton, to be more exact, has been charged with backing off from the republican principle in those essays dealing with the executive and judicial powers and functions. Again, we can take up this matter point by point:
(a) Hamilton writes in Federalist 71, when discussing the veto power of the president:
When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from the very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had the courage and magnanimity enough to serve them at the peril of their displeasure (71:370).
This, as far as I can tell, is the strongest statement that Hamilton makes on behalf of a president’s using his powers to resist or thwart the will of a presumed majority. In essay 73 and elsewhere he urges the executive to use his veto power to protect the legitimate domain of executive authority and power against the encroachments of the legislature. With Madison, Hamilton believed that the legislative branch was most to be feared because of its inherent “propensity ... to intrude upon the rights, and to absorb the powers, of the other departments” in order to advance the cause of one faction or another (379). Hamilton also believed that the veto should be exercised to protect the community “against the passing of bad laws, through haste, inadventure, or design” (380). But this stand is certainly not antirepublican, unless, of course, republicanism is equated with a senseless government. This use of the veto, moreover, is directed at the legislature, not the will of the people.
Hamilton goes on to write that the morality he is urging regarding the veto power is not based “upon the supposition of superior wisdom or virtue in the executive,” but rather “upon the supposition that the legislature will not be infallible,” and that there may be occasions when a factious spirit takes hold of the Congress that leads its members to pass legislation which upon due reflection they themselves “would condemn” (73:379–80).
Again, it is difficult to see how Hamilton’s position on these matters differs from Madison’s. Recall that Madison in discussing the utility of the Senate remarked that “such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.” While the “cool and deliberate sense of the community ought ... ultimately to prevail,” he wrote, there are times when the people, actuated by passions or demagogues “may call for measures which they themselves will afterward be the most ready to lament and condemn” (63:325). At best, the advocates of the split personality thesis have a very shaky point on this particular issue. Yet, let us recall, the point is an extremely important one for their thesis.
(b) There are a number of things to note about Hamilton’s argument for judicial review and the contentions of both Adair and Mason. First, the judicial review that Hamilton advocated was quite narrow in scope. He believed that the Courts should declare void only those legislative acts contrary to the “manifest tenor” of the Constitution (78:402). Before a statute could be declared unconstitutional, the Court would have to show an “irreconcilable variance” between the statute and the Constitution (78:403). The Court, according to the morality set forth by Hamilton, “should be bound down by strict rules and precedents” (78:406).
These rather rigid restrictions hardly support the notion that Hamilton provided a “sanction for the development of an ... irresponsible judiciary.” 14 Of course the Court has in recent years overstepped the boundaries set forth by Hamilton. Clearly, the blame for this lies not with Hamilton but with recent generations of legal scholars who have praised and justified judicial imperialism and supremacy.
Second, as we know, Hamilton invokes the “higher” or “fundamental law” theory to justify judicial review: “the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former” (78: 404). Quite obviously, he does not believe that legislative majorities, even those with strong popular support, have the authority to pass laws that contravene the Constitution. It is difficult to see how Madison could have held a different position. In Federalist 53, in trying to discover the grounds for the maxim “that where annual elections end, tyranny begins,” Madison remarks that it must have arisen in political systems where the body that possessed “the supreme power of legislation” also possessed the authority and power “to change the form of government” (277–78). “Even in Great Britain,” he notes, “where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable as well with regard to the Constitution as the ordinary objects of legislative provision.” In such systems, consequently, the legislative bodies can change “the period of election” through the very same processes by which they pass ordinary laws. But in America, he points out, it is “well understood” that there is a difference “between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government” (277).
Third, there can be no question that, if Hamilton had really wanted to establish the judiciary as the bulwark against majorities (the poor) bent upon exploiting minorities (the rich), he would have moderated his remarks about the addition of a bill of rights. Plainly, the addition of a bill of rights would only serve to enhance the authority of the Court.15
On this score, it can be argued that Hamilton (and certainly by all evidences Madison) wanted to skirt the bill-of-rights issue because it was a “front” under which the Antifederalists sought to drain the national government of vital powers (e.g., the authority for direct taxation). But another reason for Hamilton’s animus towards a bill of rights is that the bill would be ineffective in curbing majority factions.16 And still another, which confutes the charges that Hamilton was a monarchist, elitist, authoritarian, or the like, was his belief that a bill of rights, as traditionally understood, was inappropriate in a republican form of government such as that established by the Constitution. Rights, he points out, had traditionally been viewed as limitations on the power of the king towards his subjects, but, under the proposed system, the people rule. “WE, THE PEOPLE of the United States,” he continues, constitutes “a better recognition of popular rights than volumes of those aphorisms ... which would sound much better in a treatise of ethics than in a constitution of government” (84:443).
(c) To Mason’s point that Madison did not share Hamilton’s implicit belief in the purifying effects of power, the response must be that, in the first place, there is no basis, save pure speculation, for attributing any such belief to Hamilton writing as Publius. In the second place, there is a definite correspondence between Hamilton and Madison, not only with regard to the question of human nature, but also to the general character of those who would hold office in the proposed system.
Madison in Federalist 10 tells us that the extended republic holds out every prospect that the representatives of the people (certainly a healthy majority of them) will be those “whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” In fact, he even goes on to say, “it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for that purpose” (47). He discusses this more fully in Federalist 57 where he spells out why he believes the system will normally operate to produce representatives of high caliber.17
Hamilton did not have occasion to speak to this point at length. It is clear, however, that he shared Madison’s presumptions, namely, that the conditions associated with the extended republic, coupled with the “Duty, gratitude, interest, and ambition” of the representative himself, would operate to provide fit and responsible officeholders (57:297). For instance, Hamilton writes that “the office of the President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Why so? Largely because of the extensiveness of the republic:
Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue (68:354).
The fact is, of course, that both Hamilton and Madison were fully aware of the dangers of faction. Both knew that men could be selfish and shortsighted—prone to place their short-term interests and gratifications above the long-term interests and well-being of either themselves or the nation. Consequently, one of the central concerns of the authors of The Federalist is, quite simply, this: given the nature of man, is it possible to institute a republican government that will not succumb to tyranny or majority oppression? A good deal of The Federalist —when the authors have the opportunity—centers on this and like questions.18
What is evident, to return to the split personality thesis, is that the charge that Hamilton believed in the “purifying effects” of power, or that he must have assumed this given his estimate of mankind, could equally apply to Madison. Put otherwise, whatever burden is placed upon Hamilton to show that the chief executive or members of the Supreme Court will be able to exercise their powers with the restraint necessary for a nontyrannical republican system falls as well upon Madison, perhaps even more so because it was his lot to defend Congress, that institution most likely to represent the very worst characteristics of the people.
What I hope to have made abundantly clear is that a careful analysis of The Federalist does not lend support to the split personality thesis. Whatever plausibility this thesis does possess would appear to derive from the differences between Hamilton and Madison over matters political, economic, and otherwise that arose either before or after ratification. These differences are, of course, marked, and certainly would lead one to regard any collaboration by Hamilton and Madison as unlikely. But, as I have indicated, evidences of their differences, in the sense of antagonistic views on the nature of the Constitution, are not present in The Federalist.
This fact tends to confirm the commonly advanced proposition that each of Publius’s component parts knew full well the dimensions of the task before them, that perhaps the opportunity for a stronger union might never again present itself, and that, in addition, a united and coherent defense of the proposed Constitution would require them to trim their theoretical sails, that is, to accommodate themselves and their thinking to the implicit values and assumptions of the document, as well as to the sensibilities of each other.
This analysis, it should be noted, does not bear upon serious questions that have been raised about The Federalist: To what extent does it reflect the concerns and thinking of the Framers? Does it represent the consensual views of those who favored ratification? Is it reflective of the predominant views of its time concerning the need for a stronger union? What the analysis does show is that two political thinkers and activists with divergent views, Hamilton and Madison, were in substantial agreement on the principal issues surrounding ratification and the nature of the proposed system. In this sense, at least, The Federalist is a “consensual” document, one well suited to serve as a benchmark in charting the course of our political development.
Finally, this analysis should not be read to imply that there are no tensions or contradictions in The Federalist. But the more important of these, it would appear, reflect problems implicit in the proposed Constitution or inherent in republicanism. As such, they reside in Publius as a whole, not as conflicting parts. Recall, for instance, that the proposed Constitution called for an entirely new relationship between the national government and the states: a relationship that did not fit any of the traditional categories known to Publius19 or his contemporaries, and that defies precise delineation even today. Nor should we forget that the proposed system wedded republicanism to a new version of separation of powers, one calling for an independent and coordinate judiciary, a wedding that was bound to pose unforeseen problems, both theoretical and practical.20 And it is, I would submit, the holistic perspective of The Federalist that holds out the best prospect for identifying, illuminating, and comprehending these and like concerns surrounding the foundations of our system.
[1 ]This two-part article is reprinted in Fame and the Founding Fathers: Essays by Douglass Adair, ed. Trevor Colbourn (New York: W. W. Norton, 1974). All citations are to the reprint and will be designated DP.
[2 ]The disputed essays were 18, 19, 20, 62, 63, and 49 through 58, not an inconsiderable portion of the work. Adair’s article sets forth the reasons for this dispute and thoroughly examines the scholarly controversies that ensued, matters well beyond my concern here.
[3 ]“The Federalist—A Split Personality,” American Historical Review 57 (1952). Hereafter cited as SP.
[4 ]The Federalist: A Classic on Federalism and Free Government (Baltimore: Johns Hopkins Press, 1960). Hereafter cited in text as TF. Dietze writes at one point (TF, 19) that Adair’s introduction of the notion of a “split personality” is “an old idea.” Yet, he credits Alpheus T. Mason (TF, 21) with “having first elaborated the idea of the split personality.” The fact is that the Mason article is but a pale version of Adair’s.
[5 ]Those in this category would include Benjamin F. Wright, Roy P. Fairfield, and Max Beloff, whose introductions to their editions of The Federalist seem to be based on a tacit acceptance of this thesis. Beloff goes so far as to write: “The fact that the Federalist is not the work of a single mind is one of the reasons for which it must stand somewhat apart in any collection of the great texts in political science.” “Introduction” to The Federalist (New York: Macmillan, 1948), vii.
[6 ]Among these students we find Clinton Rossiter, Martin Diamond, Willmoore Kendall, and Herbert J. Storing.
[7 ]Two basic techniques of textual analysis—techniques employed to some extent by both Adair and Mason—that lead to this conclusion are (a) an examination of the essays’ structure—e.g., the sequence of the essays according to subject, the internal organization of the various sections of the work; and (b) the apparent theoretical linkage between certain papers, no matter what their sequence or place in the overall organization. These techniques cannot, however, resolve the controversy over the authority of essays 18, 19, 20, and 52 through 58. In coming to his conclusions which essentially support Madison’s claim to all of the disputed papers, Adair had to rely upon evidence external to The Federalist such as the whereabouts of the authors at various periods in the ratification contest. Adair’s conclusions have been corroborated by statistical analyses of the prose styles and word usage of Hamilton, Madison, and Jay. See: Frederick Mantella and Daniel L. Wallace, Inference and Disputed Authorship (Reading, Mass.: Addison-Wesley, 1964).
[8 ]Federalist 35, written by Hamilton, would certainly tend to cast considerable doubt on Adair’s contention concerning Hamilton’s “dualistic” view of society. For instance, Hamilton argues that it would be “impracticable” for the House of Representatives to represent sympathetically “the interests and feelings of every part of the community.” He goes on to say: “The idea of an actual representation of all classes of the people by persons of each class is altogether visionary.”
[9 ]Adair sees Madison repudiating Hamilton’s theory in arguing that the cure for factious majorities cannot be found “by creating a will of the community independent of the majority ... because a power independent of the society may well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties” (51:268).
[10 ]The distinctions that Mason notes begin to melt away in the last paragraphs of his article. He writes that one cannot “always be certain in identifying the stand of either Hamilton or Madison. Their interpretations become less categorical when either author enters the province of the other” (SP, 64).
[11 ]That Montesquieu might have misunderstood the relationship that existed between the central government and the components of the Lycian confederacy—a confederacy that both Montesquieu and Hamilton held up as a model—is explored by Christopher Wolfe, “The Confederate Republic in Montesquieu,” Polity 9 (Summer 1977).
[12 ]Ralph L. Ketcham even goes beyond Adair in driving a wedge between these two essays. See his “Notes on James Madison’s Sources for the Tenth Federalist Paper,” Midwest Journal of Political Science 1 (May 1957).
[13 ]See Martin Diamond, “The Federalist,” in A History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (Chicago: Rand McNally, 1963).
[14 ]It can be maintained that Hamilton in Federalist 81 does not satisfactorily refute the charges of the Antifederalist “Brutus,” who contended that the national judiciary “would be authorized to explain the constitution, not only according to its letter, but according to its spirit and intention.” The Antifederalist Papers, ed. Morton Borden (East Lansing: Michigan State University Press, 1965), 230. In my view, the major shortcoming in his response is the failure to set forth clearly what he would consider an appropriate constitutional remedy for an habitual abuse of judicial power. But the charge that he provided a “sanction for the development of an ... irresponsible judiciary” is unwarranted. See chapter 5.
[15 ]The more so, to use Hamilton’s language, because the interpretation of the laws and Constitution “is the proper and peculiar province of the courts” (78:403).
[16 ]Hamilton goes beyond this to write that a “bill of rights, in the sense and to the extent in which they are contended for, are not only unnecessary ... but dangerous” (84:443). We need not explore his argument on this point to see that, unlike the impression conveyed by the split personality advocates, Hamilton was not a mechanical politician who believed that formal constitutional restraints would serve to curb the abuses of majorities or the rulers. On this his heart beat at one with Madison. See, for example, 10:46 and 48:258.
[17 ]The end sought by Madison he sets forth at the beginning of Federalist 57: “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 society; and in the next place, to take most effectual precautions for keeping them virtuous whilst they continue to hold public trust” (295). He spells out in the remainder of this essay why he believes the proposed system will approximate this goal. In this enterprise he does not conflict in the slightest with the presumptions of Hamilton.
[18 ]For an analysis of the remarkable agreement that seemed to exist between Hamilton and Madison on the characteristics of human nature and how both argued effectively that the proposed system would “exploit” these characteristics to advantage, see James B. Scanlan, “The Federalist and Human Nature,” Review of Politics 21 (October 1959).
[19 ]On this point, see: Martin Diamond, “What the Framers Meant by Federalism,” in Essays on Federalism, ed. George C. S. Benson (Claremont, Calif.: Institute for Studies in Federalism, 1962).
[20 ]In Federalist 37, certainly one of the more reflective essays, Publius identifies and touches upon these and other “difficulties” that he regards as “inherent in the very nature of the undertaking referred to the convention” (182). What is more, he indicates why, in all likelihood, they will continue to persist so long as the system endures.