The Federalist, by Hamilton, Madison, and Jay - The Conservative Bookshelf, A Book by Chilton Williamson Jr.

Professor Thomas Peardon, a member of the History Department at Barnard College half a century ago, was fond of remarking to students and colleagues that the United States reached its political and cultural apogee with the ratification of the U.S. Constitution in 1789, and has been going downhill ever since.

It is a usually forgotten or ignored fact that American history is divided almost evenly between its colonial and independent periods; and that our colonial past, therefore, is at least as important to American history and the American identity as our national one is. The Constitution, drafted by the Constitutional Convention meeting in Philadelphia in 1787 and ratified two years later, created the "United States" as a political setup; it did not create "America," which had already existed for one hundred and eighty-three years when George Washington took the oath of office in New York City as the nation's first President. By the time the independence movement arose in the second half of the eighteenth century, colonial America had matured into a refined, lettered, and socially balanced European-American society, developed essentially to the English pattern but modified by geography to a civilization unique in its own right and capable of producing men of the highest character, the broadest learning, and the greatest genius. The convention of delegates elected from the thirteen states associated under the Articles of Confederation and summoned to Philadelphia to devise an alternative plan of government was arguably the most intellectually distinguished gathering ever witnessed in American history, before or since.

The meticulously drafted, debated, and revised document it produced has been widely recognized as the universal model for "democratic" government, in whatever time or place. The Framers, and those who advocated ratification, made no such universalist or ideological claims for their handiwork, arguing instead that the proposed Constitution was better suited than any other proposed scheme of government to the exigencies of the American situation and, more importantly, the American character. (It is true, they believed their own plan benefitted from modern improvements made in the "science of politics;" "The efficacy of various principles," as Alexander Hamilton wrote in The Federalist No. 9, "[being] now well well understood, which were either not known at all, or imperfectly known to the ancients.")

Modesty has proved to have been as becoming to the convention as it was realistic. As early as the 1820s, if not earlier, its vaunted Constitution was showing itself susceptible to the strains imposed on it by sectional tensions which resulted in one-half of the Union seceding from the other half in what the Southern states (quite accurately) insisted was a constitutional action on the part of the Confederacy. Five years later, after the United States had been forcibly reunited under one government, the stealthy process toward the discovery of what has come to be called the "living constitution" commenced, by which the nation's plan of government has been altered by judicial interpretation, rather than by amendment, to the point where the intent of the original document seems scarcely discernible. The plain fact is that the U.S. Constitution, world-famed as the best and most workable plan of government ever conceived, "worked" for several decades only; before provoking, first, a devastating national cataclysm and, later, a thoroughgoing political rennovation as profound as it has been dishonest, subversive, and illegal.

The Federalist is therefore interesting, from the vantage of the twenty-first century, in three major respects: 1) for its explication of the United States Constitution specifically; 2) as a discourse on republican government in general; and 3) in the accuracy of its estimation of how completely and effectively the paper plan would realize itself as a workable and lasting system in practice. In regard to 3), the eventualities, both immediate and distant, that "Publius" foresaw would result from ratification but didn't, as also those he believed wouldn't occur, but did, stand forth dramatically. This is not to impugn the wisdom and foresight of the men who wrote the Constitution and argued for it, given that the document as understood today bears little resemblance to the Constitution they knew by that name. It is simply to point out that, in order to ascertain the fullness of understanding and the justness of argument advanced by The Federalist on behalf of the Philadelphia plan, we need to work backward from the present, reading the authors' analysis in the light of our own time, and of intervening periods.

The Federalist project was conceived by Alexander Hamilton, who saw the need for a series of essays defending the Constitution of the United States and explaining its various parts to the people of the State of New York, where ratification was widely opposed by the New York newspapers immediately following the Philadelphia Convention's release of their plan on 17 September, 1787. According to Madison, "the undertaking was proposed by.Hamilton to James Madison with a request to join him and and Mr. Jay in carrying it into effect." Little planning on the part of the three men seems to have gone into the scheme, which was begun without the authors having fixed upon the total number of essays, or their individual length; although they did agree upon a division of labor in respect of subject matter. Publication of the first seventy-seven papers was staggered, each appearing first in a New York City journal, then republished after a delay of a day or two in another, and after that another; until the journalistic market had been saturated, and exposure of the arguments made complete throughout the city. (The last eight appeared in the bound two-volume edition of 1788.) All of the essays appeared over the name "Publius," so that modern scholarship has been hard put to determine which of the authors in every case wrote which paper. It is now pretty well agreed that Hamilton was responsible for Nos.1, 6-9, 11-13, 15-17, 21-36, 59-61, and 65-85; Madison for Nos. 10, 14, 37-48; and Jay Nos. 2-5 and 64, leaving 18-20, 49-58, and 62-63 a matter for speculation. Hamilton is thought to have written No. 1 in the cabin of a sloop descending the Hudson River to New York from Albany, where he had attended the fall session of the state supreme court. Throughout, the concern of "Publius" is to demonstrate the inadequacy of the existing Confederation, the thirteen states' need for a strong central government, and the care taken by the Constitutional Convention to prepare a document that embodied the highest principles of republican government acknowledged from ancient times down to the present. (New York State ratified the Constitution on 26 July, 1788.)

The Constitution of the United States is, undoubtedly, among the great political and governmental achievements in history. Just as surely, The Federalist is one of the most important political treatises ever written; certainly it stands as the most distinguished contribution by American letters. Though an "experiment," and to that extent a product of the theoretical thinking Edmund Burke deplored, the Constitution (unlike what the Jacobins produced in France) is nevertheless a "conservative" document in its reliance upon the historical learning and precedent Burke insisted upon, in its appeal to past practice, and to the experience and wisdom of tradition, which its Framers sought to distill into a single blueprint for government. Similarly, The Federalist, for its insight into the soundness of the constitutional plan for a solid, effective, and responsible government, is recognizably an expression of "conservative" political philosophy as well. Yet, the comparative innocence of eighteenth-century political thought on the eve of the Jacobin cataclysm shows through--more apparently in the passionate defense made by "Publius" on behalf of the U.S. Constitution than in the practical and unadorned text of the Constitution itself. From the vantage point of the twenty-first century, The Federalist is only too easily read as the convincing and incisive explanation of why the design resulting from the Framers' patient and painstakingly conscientious work ultimately broke down--not once, not twice, but many times--within less than a century and a half of its investiture as the Plan of Government for the United States of America.

The Constitution's designers and apologists enjoy a reputation for political realism, based on a soberly realistic understanding of human nature. Still, "Publius" regularly displays a more optimistic, at times almost sunny, character (partially assumed, no doubt, in the manner of the cheerful persuader). Both Hamilton and Madison-with some historical precedent-expected that attempted usurpation of power would occur, if it occurred at all, as an act by a state, or several states, against the federal government, rather than the reverse. Thus, in No. 17, Hamilton answers the charge that a powerful national government might be tempted to encroach upon the states' authority in local affairs by confessing, "I am at a loss to discover what temptation the persons entrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negociation and war seem to comprehend all the objects, which have charms for minds governed by that passion..[A]ll those things.which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the Foederal councils to usurp the powers with which they are connected.."

In the same essay, he notes approvingly that, whereas common men will interest themselves predominantly in more immediate, closer-to-hand matters that are entrusted to local and state governments, "The operations of the national government on the other hand falling less immediately under the observation of the mass of the citizens the benefits derived from it will chiefly be perceived and attended to by speculative men." It is, of course, later generations of those "speculative men" known to modern society as "intellectuals"--and not ordinary citizens--who through pride and ambition have destroyed constitutional operations and "interpreted" the Constitution itself to the ends of their class. In a most un-Burkean passage, "Publius" (Hamilton, No.22), writes that, "When the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done; but we forget how much good may be prevented, and how much ill produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods." In No. 23, which defends entrusting the Federal government with the common defense, he argues that once the issue has been decided in favor of the government, "that government ought to be cloathed with all the powers requisite to the complete execution of its trust. And unless it can be shewn, that the circumstances which may affect the public safety are reducible within certain determinate limits.it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defence and protection of the community, in any matter essential to its efficacy; that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES."

The inclusion of the word "support" invites speculation as to whether Hamilton envisioned, or would have approved, the unconstitutional measures adopted by President Lincoln (suspension of Habeas corpus, etc.) during the war Between the States; the suspension of civil liberties by the Wilson administration in World War I; and the patently illegal PATRIOT Act, among other constitutional subversions, achieved by President Bush's government in the so-called "War on Terror." The threat of usurpation of power, "Publius" believed, was more likely to arise from any or several of the state governments, than from the central one; but "Power being almost always the rival of power; the General Government will at all times stand ready to check the usurpations of the state governments; and these will have the same disposition towards the General Government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other, as the instrument of redress." Yet, "It may safely be received as an axiom in our political system, that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority." And in No. 33, Hamilton bids the reader consider what for him is nearly unthinkable: "Suppose by some forced constructions of its authority (which indeed cannot easily be imagined) the Foederal Legislature should attempt to vary the law of descent in any State; would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State?"

Certainly the Framers did their best to build a degree of elasticity into the Constitution, in accordance with the necessity Hamilton identifies (in No. 33) for "a CAPACITY to provide for future contingencies, as they may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity." Here is a paramount reason why justices and legislators ought always to consider the intent of the authors of the Constitution, rather than interpret for themselves after consulting their own preferences and intentions. They were were aware, also-as they had to be, and as Hamilton in the voice of "Publius" directly expressed it (No. 28)-that corruption and usurpations, by the states or by the central government, could only be defended against for so long as the citizens understood their rights under the Constitution, and remained prepared to defend those rights.

All in all, however, The Federalist-perhaps reflecting the understanding of the Convention itself-either overestimates the ability of a Federal government to control latent sectional tensions among the thirteen states; or, as is more likely, underestimates the force of those tensions. The Federalist papers advert repeatedly to the putative dangers of disunion; and, just as often, insist upon the superiority a federal system would have over "a species of leagues" in avoiding the use of force to discipline rivalrous states. Disunionist tendencies in fact may have been an insurmountable problem for the Framers; if so, they ought to have recognized it for what it was and included in the Constitution an explicit exit clause for disaffected states. On a closely related subject, Hamilton (No.22), having identified "the right of equal suffrage among the states" as "another exceptionable part of the confederation," condemns it for contradicting "that fundamental maxim of republican government which requires that the sense of the majority should prevail," and allowing for "the obvious impropriety of an equal vote between States of the most unequal dimensions and populousness.."

Here, "Publius" touches on the dilemma for which, decades later, John C. Calhoun of South Carolina was to propound his theory of a "concurrent majority" as a means to reconcile the national political imbalance that produced the so-called Civil War-a dilemma The Federalist is unable (or unwilling) to recognize, or foresee. Nor did war provide a lasting solution to that dilemma, as the political crisis surrounding the 2000 presidential election made clear. Scarcely had the Supreme Court found against the Democratic candidate who had already won the popular election by half a million votes but needed the electoral votes of the state to Florida to declare victory, when the cry was heard once more against the "undemocratic" nature of the Electoral College that had favored a minority vote representing an entire continent over a majority one cast in geographically restricted areas of the country.

Alexander Hamilton, who wrote the bulk of The Federalist, in addition to being a brilliant and learned lawyer, statesman, and writer, was as well an enthusiastic nationalist and statist, ardently committed to the proposed Constitution he regarded as the blueprint for a strong and active Federal government. The Federalist, which he imagined, brought into being, and largely composed, is fairly considered to be America's greatest contribution to political philosophy. In both inspiration and purpose it was frankly partisan, however; leading its authors-far more Hamilton than Madison and Jay-to overlook, underestimate, and understate latent or inherent weaknesses in a plan of government that was, still and all, a work of political genius. The first of two resulting oversights was the failure to anticipate sectional tensions, and urge a means for their constitutional remedy. The second was an historically unimaginative acquiescence in the provision for judicial review, that within the past seventy years has been misinterpreted to establish the nine justices of the U.S. Supreme Court as judicial oligarchs or philosopher kings, with the power to override the legislative branch of government and to encroach upon the executive as well. (An historian of the present day, Clyde Wilson, argues that the mistake of the Framers was graver still, in failing to overbalance the federal government in favor of Congress, the People's Branch.) Astoundingly, from the standpoint of the present time, Hamilton feared the legislative branch as a potential aggressor against the other two branches far more than he feared the judicial one; the judiciary, he insisted, was the least dangerous to the Constitution, being "least in a capacity to annoy or injure" the "political rights of the constitution," and possessing "neither Force nor Will, but merely judgment"! It was "rational," he supposed, "to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority," the people themselves being superior to both (Nos. 71, 78.) Not quite 200 years later, Justice William Brennan of the U.S. Supreme Court opined that judges "are not mere umpires but, in their own sphere, lawmakers."

The Federalist, moreover, evinces a notable predilection to distrust and disparage local units of government, and of society, in a manner that must strike twenty-first century readers dismayed by relentless centralization, political gigantism, and mass democracy as politically insensitive, and even ominous. The prejudice against the small political unit and the local interest is explicit in Federalist No. 11-Madison's famous disquisition on faction-when he writes, "Hence it clearly appears, that the same advantage, which a Republic has over a Democracy, in controling the effects of faction, is enjoyed by a large over a small Republic-is enjoyed by the Union over the States composing it. Does this advantage consist in the substitution of Representatives, whose enlightened views and virtuous sentiments render them superior to local prejudices, and to schemes of injustice? It will not be denied, that the Representation of the Union will be most likely to possess these requisite endowments." So again in No. 15, where Hamilton warns against the likelihood of the "love of power" manifesting itself in the state governments against the general one, and refers to "that strong predilection in favor of local objects," as if this were a sinister thing!

Withal The Federalist, both as an intellectual construct and a work of literary art, is worthy of its great subject (or object), in itself an imperfect wonder of a political Golden Age, now fallen into sad abuse-an historical possibility briefly contemplated by Hamilton. ".[A]s to those mortal feuds," (he writes in No. 17), "which in certain conjunctions spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government, or from the contagion of some violent popular paroxism, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities." The United States in the last century (and now in this one) has suffered a revolution in thought and understanding and a related one in morals and character, against which no constitution, vulnerable as well to the process of entropic corruption, is ever proof. After a century and a half of mass immigration from everywhere, the United States is longer as Jay (No.2) described it: "one connected country [given by Providence] to one connected people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.." A government, as both Hamilton and Madison recognized, is only as good as its administration; the administration only as good as its administrators; and the administrators no better than the citizens who elect and tolerate them. ("What is government itself," Madison demands in No. 51, "but the greatest of all reflections on human nature?") In Nos. 55 and 57, he states explicitly that the Constitution is tailored, not to the French or the Italian people, or to universal "Man," but to the "present genius of the people of America"-the American people, moreover, "in their present temper," on whom "the genius of the whole [proposed constitutional] system depends."

It is an expression of Madison's regard for the character of his compatriots that he can list, in a spirit of sweet reasonableness, the motives and interests binding the people's representatives to faithful and honest public service, and assure his readers that the federal government and those of the states may be trusted to observe the limits established for them by the Constitution. It can be no reproach to the Framers of the U.S. Constitution, or to its defenders and advocates who wrote what they could not know was to become its classic exposition, that they failed to foresee the distant revolutions that in fact occurred, and anticipate their fatal effects.