By Quentin Taylor, Resident Scholar Liberty Fund, Inc. Indianapolis, Indiana
Source: The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001).
The joint work of Alexander Hamilton, James Madison, and John Jay, The Federalist papers were written to defend and explain the recently drafted Federal Constitution, and promote its ratification in the state of New York. Published seriatam in New York City newspapers from October 1787 to August 1788, the eighty-five essays appeared under the pseudonym “Publius,” a legendary founder of the Roman republic and “friend of the people.” If measured by the large majority of Antifederalists elected to the New York ratifying convention, the project was not a success in its immediate aim. Once the Constitution was adopted, however, the papers – collected and bound – were soon recognized as a tour de force of political reasoning and elevated to the status of a classic. George Washington correctly predicated that The Federalist would “merit the notice of posterity,” while Thomas Jefferson called it “the best commentary on the principles of government which was ever written.” More than two centuries later, it is still regarded as the leading commentary on the Constitution and America’s greatest contribution to political science.
The idea for The Federalist originated with Alexander Hamilton, who tapped fellow New Yorker John Jay and Virginia congressman James Madison as collaborators. Jay was the senior member of the team in years and experience, having served as president of the Continental Congress, envoy to the peace talks that ended the War of Independence, and secretary for foreign affairs under the Articles of Confederation. Madison had served on a number of important committees in Congress and was among the leaders of the movement to strengthen the national government. His prominent role at the Federal Convention subsequently earned him the (somewhat misleading) title of “Father of the Constitution.” Hamilton had also been a delegate to the Convention, but his ultranationalist views and irregular attendance limited his influence. Like Madison, he had been an early and persistent advocate of a stronger central government. At the abortive Annapolis Convention (October 1786), the two co-authored a statement calling for a convention of states to take up the issue of constitutional reform. In late February 1787, following Shays’ Rebellion, Congress authorized delegates of the states to meet at Philadelphia in May to “revise and amend” the Articles of Confederation. While the Convention went well beyond its mandate, neither Madison nor Hamilton was fully satisfied with the document they signed on September 17, 1787. Both, however, vowed to work for its adoption as the best plan that could be obtained under the circumstances.
Prompted by growing attacks on the Constitution in the New York press, Publius laid out an ambitious plan for a comprehensive response in the first number of The Federalist. The question before the American people entailed “nothing less than the existence of the UNION” and “the fate of an empire.” America’s unique experiment in republican government had reached a critical juncture, and a wrong decision was likely to end in disunion and disaster. According to Publius, the outcome would not only determine the destiny of the United States, but answer the larger question raised by the American Revolution: “whether societies of men are really capable or not of establishing good government from reflection and choice”?
With the stakes so high Publius shunned the pose of impartiality, and openly declared his “opinion [that] it is your interest to adopt [the Constitution] … as the safest course for your liberty, your dignity, and your happiness.” Aware that such a momentous question affecting so many interests was bound to unleash “a torrent of angry and malignant passions,” he pledged to provide a candid and fair appraisal of the Constitution and answer the numerous objections of its opponents. As a self-styled patriotic voice of reason, Publius sets out six broad propositions the papers aim to establish: “ The utility of the UNION to your political prosperity –  The insufficiency of the present Confederation to preserve that Union –  The necessity of a government at least equally energetic with the one proposed, to be attainment of this object –  the conformity of the proposed Constitution to the true principles of republican government –  Its analogy to your own State constitution — and lastly,  The additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.”
These divisions provide the basic structure for The Federalist and embody its principal conclusions. Brief headings added to each paper in the first collected edition identify the more specific topics addressed. For all its length and detail, however, the arguments in The Federalist are guided by two basic assumptions: (1) that the rejection of the Constitution would almost inevitably result in disunion and an end to the republican experiment, and (2) that nothing short of the government proposed could preserve the Union, and with it the safety and liberty of the American people. The prospect that the nation could survive under the Articles of Confederation (or a strengthened version thereof) is simply not entertained by Publius. He suggests it would be more likely for the union to dissolve into two or more rival confederacies.
The stark nature of this either/or scenario is most evident in the early numbers of The Federalist, where disunion is viewed as the prologue to foreign intrigue, military establishments, and civil war. Jay, the author of numbers 2 through 5, underscored the natural bases of American union, the “dangers of foreign influence & force,” and the advantages of a strong bond. (Jay would fall ill in the early stages of the project and only contribute one more paper.) In numbers 6 through 8, Hamilton drew upon history to illustrate the gloomy prospects of a disunited America.
Paper nine, also by Hamilton, was the first to address a major criticism of the Constitution and defend a leading principal upon which it was based. Early in the ratification debate, Antifederalists had invoked the respected Montesquieu to challenge the feasibility of establishing a republic over a large territory. Turning the argument on its head, Hamilton drew upon the same thinker to show that a “confederate republic” is not only possible over an extended territory, but is particularly suited to quelling the peculiar vices of popular government – domestic faction and insurrection. This was one of those advances in the “science of politics” – the reconciliation of “energetic” government with an extended republic – that rendered the “gloomy sophisms” of the critics obsolete.
The focus on faction, and particularly majority faction, as the bane of popular government is the subject of number 10, Madison’s first contribution to The Federalist. Faction has many causes, but its most prominent and perennial source is the “various and unequal distribution of property,” which arises from the “diversity in the faculties of men …”(Madison’s assertion that “[t]he protection of these faculties is the first function of government,” provides a glimpse into what some modern scholars have called the class-based assumptions underlying the Constitution.) Since the tendency to faction is “sown in the nature of man,” it can only be eradicated at the cost of destroying liberty. Controlling its effects, rather than eliminating its causes, is the only course of action consistent with public liberty. Accordingly, “[t]he regulation of these various and interfering interests forms the principal task of modern Legislation.” Like Hamilton’s reversal of Montesquieu, Madison’s assertion that this task “involves the spirit of party and faction in the necessary and ordinary operations of Government” was at odds with prevailing republican theory, which viewed the discernment of the public good, rather than the regulation of clashing interests, as the hallmark of statesmanship. In practice, however, the extended republic embodied in the Constitution will provide a check against majority tyranny as well as a mechanism for securing the public good.
On one hand, a large territory will encourage a multiplicity of interests –religious, political, economic – none of which will likely constitute a majority of the whole. If an unjust majority did form, great distances and other barriers will make acting in concert on a large scale difficult. On the other hand, the large electoral districts from which the people, directly or indirectly, select their representatives will enhance the prospect of choosing “fit characters” for national office. In conjunction with federalism – “the great and aggregate interests being referred to the national, the local and particular, to the state legislatures” – an extended republic promises to supply “a Republican remedy for the diseases most incident to Republican Government.”
In numbers 11 through 13, Publius outlines the advantages of a firm union in terms of foreign commerce, revenue, and overall economy. A united people and a respectable navy will work to secure the nation’s commercial interests, while revenue derived from duties on imports will reduce the need for more direct and unpopular forms of taxation. Finally, the support of a single national government will prove more economical and less burdensome than maintaining two or three separate confederacies. The fourteenth paper, which concludes the first section, provides additional arguments for the extended republic, including improvements in transportation and communication. Publius ends with a rousing appeal to his “fellow countryman,” who should reject the “unhallowed language” of disunion and trust to “their own good sense, the knowledge of their own situation, and the lessons of their own experience.” While The Federalist is often approached as a work of constitutional theory, such passages reflect the rhetorical idiom and partisan context in which it was written.
In the second division (Nos. 15-22), Publius catalogues the fatal defects of the Articles of Confederation. Foremost among these is the “great and radical vice” of a Congress that could legislate for the states, but left the individual untouched. Moreover, Congress had no power to directly tax or regulate commerce, nor the means of enforcing its laws. As a result, the states had repeatedly defied or evaded its measures to the point of national paralysis and disintegration. Like past and present confederacies whose central authority lacked the basic attributes of sovereignty, the Articles embodied the “political monster of imperium in imperio,” a government within a government.
In addition to these “fundamental errors,” Publius judges the Articles defective on a number of other counts. An equal vote for each state regardless of size, a supermajority for important legislation, and unanimity for amendments had proved unfair and unworkable. A unicameral legislature and the absence of an independent judiciary or executive were at variance with separation of powers and wholly unsuited to responsible governance. governing the nation. Finally, the Articles, adopted by the regular state legislatures, lacked a firm foundation in the consent of the American people. For these reasons it was necessary to scrap the Articles altogether and frame a constitution on entirely different principles.
The nature of these principles, and their necessity for an enduring union, is the subject of the third section of papers (Nos. 23-36). Here Publius defends the Constitution’s provisions for an unlimited power of taxation and a peacetime military establishment on the grounds that “the means ought to be proportioned to the ends.” Given the responsibilities assigned the national government, and the incalculable nature of its future needs, a limitation on the taxing power or a prohibition on standing armies would prove impractical and improvident. Publius reminds Antifederalist critics that the states will possess a concurrent power to tax (except on imports and exports) and retain authority over its principal source of revenue (land tax). Conversely, civilian control of the military, the sentiments of the local militias, and the natural vigilance of the states will serve as a bulwark against the unlikely threat of military despotism.
The remaining essays veer from the plan outlined in Federalist No. 1, but the remaining propositions are thoroughly canvassed. First, Publius pauses to reflect on the many difficulties faced by the Framers, and expose the petty and incoherent objections of the Constitution’s opponents. A more substantive objection – that the Constitution deviates from republican principles and creates a consolidated government – is addressed in number 39. Since the government “derives all its powers directly or indirectly from great body of the people, and is administered by persons holding their offices … for a limited period, or during good behavior,” it is fully consistent with republican principles. Alternatively, an examination of the sources, operation, and extent of the government’s powers reveals not a consolidated or unitary system, but a mixture of national (unitary) and federal (confederal) elements. This hybrid quality, “neither wholly federal nor wholly national,” is also apparent in the Constitution’s measures for ratification and amendment.
In numbers 41 through 46, Publius defends the specific powers granted Congress and argues that they are neither dangerous to the authority of the states nor a threat to the liberties of the people. Fear that the “necessary and proper” clause (granting Congress authority to carry out its delegated powers) would result in a general power to legislate is dismissed as chimerical: such authority, Publius maintains, is implicit in any system of delegated powers. Moreover, these powers are “few and defined,” while those left to the states are “numerous and indefinite.” Should the national government attempt to encroach upon the jurisdiction of the states, the latter will have ample means to resist. At bottom, however, the national and state governments will be “but different agents and trustees of the people, constituted with different powers and designed for different purposes.”
The charge that the Constitution’s arrangement of the three branches of government violates the principle of separation of powers is addressed and refuted in numbers 47 through 51. Publius notes that a complete separation of powers is neither wise nor possible. Checks and balances and the unity of government necessitate that each branch be given a role in the operation of the others. Like the state constitutions, the proposed plan creates three separate branches of government, but integrates their functions. Each branch exercises exclusive powers, which include the power of checking the other. Given the tendency of the legislative power to predominate in a republic, the Constitution divides the Congress into an upper and lower chamber, providing an additional safeguard against untoward legislation.
For Publius, the dilemma lies not in the division of the three branches, but in keeping them separate. He rejects plans that would go outside the normal operation of the system to correct its abuses as impractical and destabilizing. Nor should one rely on the “parchment barriers” of a written constitution. The solution must be intrinsic to the system and link human motivation to institutional dynamics. “The only answer,” Madison writes in number 51, consists in “contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” To defend against encroachments each branch most possess “the necessary constitutional means and personal motives to resist.” Since these motives will invariably be less than angelic, the means of defense must be “commensurate to the danger of attack.” Hence the Constitution’s elaborate system of checks and balances. Just as the extended republic will obstruct the formation of a tyrannical majority, separation of powers will block the establishment of a tyrannical government. The further division of powers at the state level provides a “double security” for “the rights of the people.”
Objections to the proposed House of Representatives and the regulation of elections are answered in numbers 52 through 61. Antifederalists maintained that the sixty-five representatives elected to the first Congress would be (1) too far removed from the people to serve the public interest, (2) drawn for districts too large to have an adequate knowledge of conditions, and (3) too few in number to be trusted with power. Publius maintains the number is a reasonable mean: large enough to prevent a cabal, but small enough to avoid a mob. As the population increases, the number of representatives will be raised to a level consistent with the body’s deliberative function. On matters of national concern, the legislators will possess sufficient information to adequately represent the interests of their constituents. Elections every two years will ensure that representatives remain accountable to the people.
In addition to these considerations, the Senate – the focus of papers 62 through 66 – will serve as a check on the lower house and introduce a necessary degree of moderation and stability into the legislative councils. By virtue of indirect election and a longer (and staggered) term of office, the Senate will possess greater permanence and supply ballast to the ship of state, a judgment supported by the histories of governments with an upper house. These qualities make the Senate the proper depository of the power to confirm presidential appointments, ratify treaties, and try impeachments. Far from a violation of the separation of powers, this “partial intermixture” is necessary for maintaining independence, checking unwise measures, and moderating policy.
Just as Publius defends the Senate against the charge that it was too “aristocratic,” he rejects the claim that the proposed chief executive resembled an “elected king.” If the president’s powers are formidable and subject to abuse, they are also limited and subject to a check. In papers 67 through 77, Publius surveys the structure and powers of the president and underscores the need for “energy” in the executive branch, which he considers “a leading character in the definition of good government.” The president is given the power to appoint and removal officials and to make treaties, but only with the senate’s approval. (The first Congress interpreted the removal clause to vest this power solely with the president.) As commander-in-chief, the president will head the military, but the power to declare war is vested in Congress. The Constitution does give the president an exclusive power to grant pardons and reprieves and the power to receive ambassadors, but these are justified by the nature of clemency on one hand and diplomacy of the other. Provisions for impeachment and removal of the president by Congress provide a final check on the abuse of executive power.
Publius identifies the key ingredients of an “energetic” executive as unity, duration, adequate compensation, and a defensive power. Unity in the form of a single executive will allow for “decision, activity, secrecy and dispatch” and provide for the accountability absent in a plural executive. A four-year renewable term is of sufficient duration to fortify the office and maintain the executive’s independence. A prohibition on raising or lowering the president’s salary during his term will cut off a perennial source of undue influence. Finally, the qualified veto will give the executive the means to defend itself against unwarranted attacks and shield society from oppressive or unjust legislation.
The judiciary is the subject of papers 78 through 83. Since it will possess neither “sword nor purse,” Publius characterizes the judicial branch as “least dangerous” to the rights and liberties of the people. The greater danger is for it to come under the influence of the other two branches. To ensure the judiciary’s independence, the Constitution grants judges life tenure during good behavior. Such security will encourage judges to interpret the laws impartially and without fear of political consequences. It will also attract “fit characters” to the federal bench. The provision that judges’ salaries may not be reduced will remove another threat to judicial independence.
Judicial review, the power of the courts to nullify unconstitutional laws, is addressed in number 78. While not mentioned by name in the Constitution, Publius maintains it is implicit in a fundamental law that is superior to ordinary legislation. When such legislation is “contrary to the manifest tenor of the Constitution” it is the duty of the judiciary to declare it “void.” In response to the argument that this power makes the judiciary superior to the legislature, Publius avers that it makes the will of the people, as embodied in the Constitution, superior to both. Federal courts are essential not merely to protect the Constitution, but to adjudicate disputes between the states and the national government as well as among the states themselves. The need for legal uniformity and finality also requires a national judiciary and a supreme court. The state judiciaries will retain their customary authority, except in the few cases where exclusive jurisdiction is granted the federal courts. Finally, the more specific details of judicial structure (“inferior” courts) and procedure (judicial review of state measures) will be left to Congress.
The penultimate paper defends the absence of a bill of rights in the Constitution, which Publius asserts is itself a bill of rights. In addition to including a number of prohibitions (e.g., ex post fact laws, bills of attainder), the Constitution limits the government to specific grants of power. An enumeration of all the rights and liberties possessed by the people was not only “unnecessary” but potentially “dangerous” in a written constitution. This argument failed to persuade Antifederalists, whose persistence moved leading Federalists to concede that a bill of rights should be added once the Constitution was adopted. In the final paper, Publius rejects the idea of making prior adoption of amendments a condition of ratification as well as calls for a second convention to correct the “errors” of the first. The states may freely offer amendments after ratification and a second convention is no more likely devise a perfect plan than the first. Further delay will only invite disaster and the opportunity to establish a firm union might be lost forever. The adoption of the Constitution in New York, where Hamilton and Jay led its supporters, and in Virginia, where Madison was its chief advocate, ensured that the American experiment in republican government would survive.
Despite its negligible influence in the ratification debates, The Federalist has endured as a classic of constitutional government and political theory for well over two centuries. As early as 1798 it was cited by the Supreme Court for its insights and authority, a practice which has continued to the present day. It has been translated into a number of languages and widely consulted by constitution-makers and scholars for its treatment of federalism, separation of powers, and judicial review. While of limited relevance to modern constitutional law, it remains unparalleled as an exposition of the American political system in its original understanding.
Last modified April 10, 2014