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B.: THE FEDERALIST RESPONSE - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

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Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


B.

THE FEDERALIST RESPONSE

Although the essays written by Hamilton, Madison, and Jay (“Publius”) in The Federalist were by no means the only thoughtful response to Anti-Federalists’ arguments, they were surely the most influential. Over the years they have come to be recognized as a primary source of understanding concerning the meaning and purpose of the Constitution. Indeed, no study of our political system and the ideas of the Framers is complete without a reading of this great American classic.

In defending the Constitution, the authors of The Federalist faced the difficult task of explaining and justifying a document that differed sharply from the Articles of Confederation. Although the Articles were unsatisfactory in a number of ways, they were nevertheless tolerable to a great many Americans. There had been no popular uprisings anywhere in the country demanding a new constitution, and many prominent political leaders—now Anti-Federalists—preferred a modest revision rather than abandonment of the Articles.

The Federalists thus found themselves in the awkward position of defending what appeared to be, at least on the surface, a radical and revolutionary change of government. Many though not all of the delegates to the Federal Convention had been instructed by their States to seek a modification of the Articles—not their wholesale elimination. These delegates were therefore highly vulnerable to the charge that they had violated the trust that had been placed in them, and had acted ultra vires (beyond the power vested in them). The Constitution itself, as the Anti-Federalists hotly contended, displayed all the characteristics of a novel experiment in government. The basic question was whether it strengthened and preserved freedom and independence, or whether it nullified the hard-fought gains of the American Revolution and promised to return America to the kind of tyranny it had known under George III.

The Constitution Limits and Distributes Power

The question was one of power, the Federalists arguing that the Articles of Confederation conferred too little power on the Federal government, and the Anti-Federalists asserting that the Constitution gave it too much. Conceding the point that the Constitution clearly increased the powers of the Federal government, the Federalists nonetheless insisted that the document had been carefully drafted to limit those powers. These limitations were sufficient, they contended, to allow for healthy and vigorous government, while at the same time preventing abuses of power. It was to be a powerful government, more powerful than the American people had known since the Revolution, the Federalists admitted. But it was not so powerful as to constitute a serious threat to liberty, and certainly not as powerful as the English monarchy.

This was true, said “Publius,” because the Constitution disallowed concentrations of power. No single government, either Federal or State, possessed all the powers of government. Political power, in general, was divided between two levels of government under the principle of federalism. The national government was to be a government of limited and enumerated powers that were specifically laid out in the Constitution. Those powers not delegated to the national government remained with the States as “reserved” powers. The limited power that the national government possessed was further restricted because it was separated among three relatively independent branches—Congress, the President, and the Judiciary. This provided the machinery for the responsible exercise of power. The problem with the Articles of Confederation was that they did not provide for a proper distribution of power. Too much power had been concentrated in the States, making it difficult for the national government to deal effectively with foreign governments, interstate rivalries, insurrections, and military threats. And, what little power the national government did possess was concentrated in one branch—Congress. The government of the United States under the Articles thus suffered from “anarchy in the parts” rather than “tyranny in the head.” It was so weak, the Federalists argued, that it could not promote economic prosperity or provide for the safety of the people. These were the bare essentials of government. The new Constitution, as the Preamble stated, promised to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty. …”

The first step in gaining public support for the proposed Constitution was to explain and justify the redistribution of power crafted by the Framers. The American system of federalism, unprecedented in the history of nations, was a unique arrangement that seemed foreign to some and unworkable to others. What was the nature of this new union? If sovereignty was to be divided between the general or Federal government and the States, who had ultimate authority to govern? These were difficult questions, but the authors of The Federalist answered them with consummate skill.

The nature of the new union, explained Madison, was neither wholly national nor wholly federal, but contained both national and federal elements. Regarding the basic foundation of the government, it was federal because the Constitution must be ratified by the several States. With respect to the legislature, the new Union was partly national and partly federal, one house resting on a national and the other on a federal basis. The presidency was also partly national and partly federal, since the electoral vote was distributed partly in accordance with the principle of State equality, and partly according to population. Considering the operation of the government, it was seen as national rather than federal, inasmuch as it acted directly on individuals and not through the States. In the extent of its powers, however, the Union was federal because its jurisdiction was limited to specific objects, and all else was left to the States. Thus the government of the United States was to be neither a pure confederacy nor a “consolidated republic,” but a new type of government, in a class by itself.

The States had not been reduced to provinces, the Federalists insisted, but remained in possession of “certain exclusive and very important portions of sovereign power.” They still held “all the rights of sovereignty which were not … exclusively delegated to the United States.” In a consolidated system, the local authorities are subject to control by the central government; but in the proposed Union the local authorities form distinct and independent portions of the supremacy, no more subject to the general authority than the general authority is to them within its own sphere.” The States may not be completely sovereign, but they did have a residuary sovereignty.

Such was the nature of legal sovereignty under the Constitution. Real or political sovereignty rested, of course, not with the Federal or State governments, but with the “people.” “The ultimate authority,” concluded The Federalist, “resides in the people alone.”

It therefore followed that the federal principle, woven into the entire fabric of the Constitution, would limit the power of both the Federal and State governments, while happily combining the best characteristics of both. The Anti-Federalists’ claim that the Federal government would usurp the powers of the States, argued Madison in Federalist 45, was false. It was more likely that the States would continue to dominate the national government. They had the advantage with respect “to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.”

Of paramount importance under the new scheme were the State legislatures. The President could not even be elected unless they acted. They played a key role in his election. Moreover, they elected the members of the Senate and would probably influence the election of members of the House of Representatives as well. Both the legislative and executive branches of the Federal government, in other words, owed their very existence to the State legislatures. Added to this, the States would exercise far more influence in public affairs because more people were employed under their authority than under that of the general government. “The members of the legislative, executive and judiciary departments of thirteen and more States; the justices of peace, officers of militia, ministerial officers of justice, with all the county corporation and town-officers, for three millions and more of people, intermixed and having particular acquaintance with every class and circle of people, must exceed beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.”

Accustomed to their own State constitutions, which except in Massachusetts and a few other States generally failed to provide for sufficient checks and balances, some Anti-Federalists also criticized the separation of powers system of the Constitution. There was too much “blending,” they argued, and the departments ought to be kept wholly separate and distinct. Not all Anti-Federalists shared this view, however, and many accepted the argument of Madison in Federalist 47 that some overlapping of functions was necessary in order to prevent one branch from encroaching upon the functions of another. Hence the issue of separation of powers did not become a major bone of contention in the struggle over ratification of the Constitution. The Anti-Federalists were preoccupied with the question of States’ Rights. This was the theme song of their campaign against the Constitution.

In response to the many complaints that the proposed Constitution not only redistributed power improperly but also failed to limit the powers that had now been shifted to the Federal government, the authors of The Federalist assured their adversaries that such fears were unfounded. “The powers delegated by the proposed Constitution to the Federal government,” said Madison in Federalist 45, “are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of Federal power would be limited primarily to military and foreign affairs, foreign commerce and taxation. The States, he continued, would retain full authority over matters pertaining to civil liberties and the rights of property, the internal affairs of the States, and the administration of law and order.

Congress Is Not an Oligarchy

Turning to specific complaints lodged against the Constitution respecting the enumerated powers of Congress, Publius denied the allegation that the “times, places and manner” provision, which gave Congress concurrent authority to regulate the election of its own members, would displace the State legislatures. The States would regulate Federal elections in the first instance, contended Alexander Hamilton in Federalist 59, and Congress would not generally interfere except when “extraordinary circumstances might render the interposition necessary to its safety.” The “times, places and manner” clause was simply a device to protect Congress from being placed at the mercy of the States. Without it, the States might prevent the election of members of Congress altogether. It was justified by the general principle that “every government ought to contain in itself the means of its own preservation.”

Anti-Federalist arguments against the General Welfare, Tax, and Necessary and Proper clauses of Article I, and the Supremacy Clause of Article VI, were also not justified, the Federalists countered. A proper interpretation of these provisions, said The Federalist, showed they were entirely consistent with the principles of limited government. The power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare” was not an “unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” Congress had not been given a general power to legislate for the general welfare, because the General Welfare Clause was tied inextricably to the power to tax and spend. Congress, said Madison in Federalist 41, could tax and spend only to carry out one of its enumerated powers. Any other interpretation would render superfluous the specific enumeration of other Congressional powers.

It was true, of course, that the Framers had placed no limit on the amount that might be taxed. It would not be practical, the Federalists believed, to do so. In time of war and national emergencies, suggested Hamilton in Federalist 34, the situation might call for added revenue. “Constitutions of civil government are not to be framed upon a calculation of existing emergencies. … There ought to be a capacity to provide for future contingencies, as these may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity.” Given the various constitutional restraints on government and the system of popular control over members of Congress, abuses of the tax power thus seemed remote.

Similarly unwarranted, argued Publius, were Anti-Federalist assaults on the Necessary and Proper and Supremacy clauses. “These two clauses,” observed Hamilton in Federalist 33, “have been sources of much virulent invective and petulant declamation. … [and] have been held up to the people, in all the exaggerated colors of misrepresentation, as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated.” Upon close examination, however, it was clear that both clauses were “perfectly harmless.” Indeed, wrote Hamilton, “the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated. … They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Federal government, and vesting it with certain specified powers.” By this he meant that the Necessary and Proper clause was intended “to leave nothing to construction” and to remove all doubt that the delegation of certain powers to Congress carried with it the implied right to execute those powers by necessary and proper laws; and that the Supremacy Clause simply acknowledged the fact that “a law by the very meaning of the term includes supremacy.” The supremacy of national laws “flows immediately and necessarily from the institution of a Federal government.” The States were protected by language which “expressly confines this supremacy to laws made pursuant to the Constitution.”

The President Is Not a King

Anti-Federalist arguments that the President and the Federal courts also enjoyed excessive amounts of power under the proposed Constitution were also rebutted by Hamilton, principally in Federalist 69 and Federalist 78. Particularly weak was the charge that the President had been endowed with all of the rights and prerogatives of an English monarch. Astutely noting that the powers of the Chief Executive did not differ remarkably from those already being exercised by many State governors, Hamilton spelled out in exhaustive detail the differences between the President and the King of Great Britain: the President was elected by the people for four years, whereas the King is a perpetual hereditary prince; the President can be impeached and removed from office, whereas the person of the King is “sacred and inviolable”; the President has a qualified veto, whereas that of the King is absolute; the President is commander-in-chief of the armed forces, whereas the King not only raises and commands the military but may also declare war on his own authority; the President shares the treaty-making and appointment power with the legislature, whereas the King alone exercises these powers. These, and countless other differences, distinguished the two offices. “What answer,” asked Hamilton, “shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us, that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.”

The Judiciary Is the Least Dangerous Branch

On the question of Federal judicial power, however, Hamilton dismissed many of the Anti-Federalist objections out of hand, and never really came to grips with the issue. In Federalist 78, he argued persuasively for the principle of judicial independence, but the thought that Federal judges might usurp the powers of the State courts received only passing notice. The possibility that Federal judges might also encroach upon the powers of Congress or the President seemed equally remote. Historically, courts of law had served the interests of liberty as barriers to despotism. Because of the limited nature of their function—interpreting the law—they “will always be the least dangerous” branch. Under the Constitution, observed Hamilton, “The judiciary. … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

In sum, “the judiciary is beyond comparison the weakest of the three departments of power.” “[T]he supposed danger of judiciary encroachments on the legislative authority,” Hamilton surmised, “is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.”

Whether a Bill of Rights Was Necessary

On May 28, 1788, one year after the delegates to the Constitutional Convention had convened in Philadelphia to begin their deliberations, Alexander Hamilton published his reply to the Anti-Federalists on the question of a bill of rights. Not until the final hours of the Convention had the thought occurred to any delegate that a bill of rights ought to be included in the Constitution. It was then that George Mason of Virginia made the proposal, and Elbridge Gerry of Massachusetts moved to appoint a committee to draft a “declaration of rights.” The motion was voted down unanimously (that is, by all of the States represented), because the general consensus was that a bill of rights was not necessary. This was essentially the same position taken by Hamilton in Federalist 84.

Opposition to a bill of rights did not stem from indifference or hostility toward civil rights, but from the widely held belief that a declaration of rights would be superfluous. The Federal government was to be a government of delegated and enumerated powers. It had no authority to interfere with such matters as speech and religion. A declaration that it had no such authority would merely make explicit what was already implicit in the Constitution, with excess verbiage that simply stated what was already obvious.

To this, Hamilton added other objections. First, the Constitution already contained specific guarantees of liberty. “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws and of titles of nobility,” he asserted, “are perhaps greater securities to liberty and republicanism” than any provided by his own Constitution of New York.

Second, a bill of rights does not properly belong in this kind of Constitution. Such bills of rights are ordinarily stipulations between kings and their subjects, “reservations of rights not surrendered to the prince”—as seen in the Magna Charta, the Petition of Right, and the English Bill of Rights of 1688. Hence, Hamilton argued,“they have no application to constitutions professedly founded upon the power of the people” because “in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.” The Preamble of the Constitution, he believed, “is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.”

Third, said Hamilton, a bill of rights might even be dangerous. By listing freedoms that the Federal government could not deny, the government, by implication, would be free to deny those rights that had not been included. A bill of rights, he reasoned, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than was granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Fourth, there was no clear understanding concerning the precise meaning of the liberties claimed, and the standards varied from State to State. “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” If freedom of the press is to be enjoyed, Hamilton argued, it will be because of public opinion and the spirit of the people, not because of “fine declarations.”

Finally, a bill of rights was not needed, Hamilton maintained, because the Constitution was itself a bill of rights. What protects liberty and gives it meaning and substance is the structure of government—concrete limitations on power, not parchment declarations. If a constitution—and that of the United States is such a constitution—is properly designed to check abuses of power, the government upon which it rests will in the general course of events discourage political authorities from trampling on the liberties of the people. The privileges and immunities that might be proclaimed in such a bill of rights were already embodied in the original document.

In the end, Hamilton’s view did not prevail. The ratification struggle began as soon as Congress submitted the Constitution to the States, and the Anti-Federalists steadfastly held their position that a bill of rights was essential. This issue overshadowed all others, including the issues of legislative power and representation. Although ratification was secured within nine months, the margin of victory in at least half of the States was narrow. Had the Federalists refused to budge on the bill of rights question, it is not unlikely that the proposed Constitution would have been defeated.

The Clash of Values

This brief review of the main points of contention between the Federalists and the Anti-Federalists shows that they were in disagreement on some very fundamental issues. To the Anti-Federalists, the new Constitution posed a threat to liberty, order, and justice, whereas the Federalists believed that it would secure these values.

Liberty depends on rule of law. Yet, as the Anti-Federalists repeatedly argued, the new system rested on a flagrant disregard of the forms of legality. The delegates to the Philadelphia Convention were sent to revise the Articles of Confederation, not to write a new Constitution. James Madison responded in Federalist 40 with the argument that even if the Framers had exceeded their powers (which he flatly denied), it was in the best interests of the country to substantially alter the system. Such changes were legitimate, he suggested, if they were “calculated to accomplish the views and happiness of the people of America” and were approved by them.

Liberty also depended upon republicanism, said the Anti-Federalists, which in turn depended upon maintaining the primacy of the States. History and political theory persuaded the Anti-Federalists that free republican governments could extend only over small territories with homogeneous populations. Small republics were stable and orderly because they were public-spirited, enjoyed voluntary obedience to the laws, and were closely controlled by the people. Many Anti-Federalists preferred the simplicity of agrarian life to the complexity of a strife-ridden industrial society, and most agreed with Brutus that “in a republic, the manners, sentiments, and interests of the people should be similar. If this is 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.”

But the Federalists envisioned a different kind of America, and vigorously challenged this view. Homogeneous republics were possible only under the primitive conditions of pre-commercial society. “In every community whose industry is encouraged,” said Hamilton, “there will be a division of it into the few and the many.” And when this occurs, the innocence of agricultural life is lost. The Anti-Federalists criticized the man of commerce as rootless and greedy—“immersed in schemes of wealth” and “the last to take alarm when public liberty is threatened”; but they could not deny that America was already committed to a commercial order, and that the landed interests were fundamentally part of, and dependent upon, the commercial life of the nation. As Herbert Storing has observed, “The basic problem of the Anti-Federalists was that they accepted the need and desirability of the modern commercial world, while attempting to resist certain of its tendencies with rather half-hearted appeals to civic virtue. But such restraints, the Federalists replied, have never worked and will never work.”

The solution, argued Madison in Federalist 10, was the extended commercial republic proposed by the Constitution. A loosely knit confederation of small republics was neither desirable nor possible. Small republics might even pose a threat to liberty because they were governed by single-minded majority factions that are difficult to control. Such factions tend to be overbearing, and even tyrannical. They become intolerant of the rights of wealthy property owners, small religious sects, and other minority groups because they have few differences among themselves. The system of representation adopted by the Framers was preferable, said Madison, because it established a large commercial republic in which majority factions would represent diverse populations with different interests. Majority factions of this kind would be more moderate than small, homogeneous factions, since they would be forced to compromise many of their positions in order to function as a majority. The Federal government, in other words, would have a conservative, moderating influence on the affairs of the people, checking the radical elements in the States—like Daniel Shays.

Although the Federalists won the argument, we should not presume that the Anti-Federalists were wrong about any or all of these issues. The inquiring student, having examined the debates thoroughly and objectively, may well conclude that the Anti-Federalists were right about certain matters. For we must not lose sight of the fact that the debate over the Constitution was a political debate, and that both sides were seeking to persuade their fellow countrymen that their position was the correct one. In the course of the debate, both sides tended to exaggerate their claims, the Federalists playing down the fact that the Constitution did indeed confer great power on the Federal government, and the Anti-Federalists overstating the deficiencies of the Constitution.

Moreover, we should not over-inflate the effect and significance of the Anti-Federalists’ victory in securing adoption of the Bill of Rights. For the Bill of Rights neither increased nor decreased the powers of the Federal government. The first ten amendments simply made explicit what was already implicit in the Constitution. Perhaps this is why the Federalists were only half-hearted in their opposition to a bill of rights, and in the end readily acceded to the demands of the Anti-Federalists.

Although no formal agreements were made, ratification in many States was conditioned on the understanding that the first order of business in the first Congress would be the preparation of a bill of rights for submission to the States. Toward that end, five of the States sent long lists of proposed amendments to Congress for consideration. These amendments, it should be borne in mind, were motivated as much by a desire to whittle down the powers of the Federal government as by a desire to protect civil liberties.

A review of the bill of rights proposals of the first three States to make them—Massachusetts, South Carolina, and New Hampshire—shows that the members of these conventions were much more concerned about the rights and powers of the States than about the rights of the people. Massachusetts proposed nine amendments, but only the sixth and seventh—referring, respectively, to indictment by grand jury and jury trials in civil disputes—dealt with individual liberty as such. The rest called for amendments declaring that: (1) all powers not expressly delegated were reserved to the States; (2) there shall be one representative for every thirty thousand persons until there are two hundred representatives; (3) Congress shall not exercise its “times, manner, and place” powers unless a State neglects or refuses to act or subverts the right of the people to free and equal representation; (4) Congress may not impose direct taxes unless there is insufficient money arising from imposts and excise taxes, and certain other conditions are met; (5) Congress may not create monopolies giving certain merchants an exclusive advantage; (6) The Supreme Court shall have no jurisdiction over disputes between citizens of different States unless the amount in contention is at least $3,000; (7) Congress shall never consent that a person holding office under the United States shall accept a title of nobility from a foreign state.

In one place the list proposed by South Carolina mentioned the “freedom of the people,” but otherwise it dealt with the issue of “the sovereignty of the several States.” Of the twelve proposed amendments offered by New Hampshire, less than half had a direct bearing on individual liberty. The many amendments proposed by Virginia and New York, which went into great detail, dealt in part with individual liberty and in part with proposed changes to increase the powers of the States.

Thus it may be seen that federalism was an important ingredient of the “Bill of Rights” as finally adopted. The Bill of Rights was, in fact, a concession to the Anti-Federalists and to the States’ Rightists who feared Federal usurpation of State power, particularly in the sensitive area of civil liberties. By its terms, the Bill of Rights applied only to Congress (the Federal government) and exempted the States. Viewed in historical perspective, its purpose was two-fold: (1) to assure each individual that the Federal government would not encroach upon his civil liberties, and (2) to assure each State that the Federal government would not have jurisdiction over most civil liberties disputes between a State and its citizens. Each amendment was a guarantee to the individual and to the States, limiting the powers of the Federal government but not those of the States. On the question of freedom of the press, for example, Congress alone was prohibited by the First Amendment from abridging such freedom, thus leaving the States to establish their own standards of free press under their own constitutions and State bills of rights.

The task of drafting the Bill of Rights and submitting the amendments to the States for ratification fell on members of the First Congress in 1789. James Madison, who had been elected to the House of Representatives, was a member of the special committee that was responsible for sifting through the myriad amendments suggested by the States, and it was under his leadership that the Bill of Rights took shape.

The Bill of Rights as originally adopted by Congress and submitted to the States contained twelve amendments. The first two, proposing a new scale of representation for the House of Representatives and a limitation on increasing the salaries of members of Congress failed to gain ratification, and the last ten, known as the Bill of Rights, became part of the Constitution on December 15, 1791. What is now the First Amendment was originally the third. The amendment restricting changes of Congressional salaries was finally ratified in 1992, and it is now the 27th amendment to the Constitution. Not until the sesquicentennial year of 1941 did Connecticut, Georgia, and Massachusetts formally ratify the Bill of Rights.