Federalist 39 – Madison

Federalist 39 is one of the most important of the Federalist papers as it reveals much about James Madison’s philosophy of government.  In it he discusses two objections to the Constitution: that it not sufficiently republican, and that it betrays the concept of federalism in creating a national rather than federal government.

In order to address the first charge Madison had to define the concept of republicanism.  He confesses that “no other form would be reconcilable with the genius of the people of America,” and so he undertakes to establish what the concept means.  While some European countries fashi0n themselves to be republics, the designation ill fits most of them, especially where absolute monarchs rule over the people.  So if the designation “republic” does not suit Holland or Poland, what does constitute a republic?  Madison’s answer provides and invaluable insight into how he views popular rule.

Federalist 38 – Madison

Federalist 38 is one of the more interesting essays written by James Madison.  It is somewhat more polemical than any of the other essays he penned in this series.  Also, depending on how deeply between the lines one is willing to read, it is a strikingly Hamiltonian.

Madison spends a great deal of time at the outset discussing the history of constitutional development.  He notes that for most of human history constitutions were handed down by individuals.  The constitutional convention was truly a groundbreaking achievement, none the least of which because it produced a constitution created by a group of men rather than a single lawgiver.

There are several possible ways to interpret this mini history lesson.  One is to simply accept it at face value for what it is: a history lesson.  Of course it might be more than this.  Perhaps Madison wants to highlight the achievement of the Framers by placing it in historical context.  Also, he is quite possibly building upon the previous essay by showing that the Framers had an incredibly difficult job, and any perceived imperfections in the final document had to be understood in light of the fact that it was the product of a committee that had to compromise along the way, as opposed to men like Solon who handed down constitutions according to their own whims.

The fact that Madison proceeds to spend much of the rest of the paper running down the anti-Federalists and their inability to offer up any meaningful counter-proposals suggests an even more sinister possibility.  Maybe Madison is suggesting that the only alternative to the Constitution is chaos or tyranny (or both).  That might be taking interpretation too far, but it’s not unreasonable to suggest that Madison is once again engaging in a little bit of rhetorical trickery.  “If you guys are so smart, let’s see what you can do” seems to be the overriding theme of this paper.

At any rate, we should read Madison’s own words to understand what he’s trying to accomplish.

Federalist 37 – James Madison

James Madison takes up his pen in order to write Federalist 37, thus commencing the second part of the series.  From this point forward Publius is mainly concerned with analyzing the Constitution and defending it from anti-Federalist attacks.  In this paper, Madison lays the groundwork by taking a look at the difficulties faced by those in attendance at the constitutional convention.

His preamble is a lament that sounds familiar to modern ears as he complains about the lack of civility surrounding the debate over the proposed Constitution.

It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question.

Federalist 36 – Hamilton

We have finally reached the end of the first part of the Federalist Papers. Alexander Hamilton winds down a rather long discourse on the taxing powers in Federalist 36, while also laying down his ideas on what kinds of representatives the new republic will elect.  Generally speaking, he envisions a representative class consisting of “proprietors of land, of merchants, and of members of the learned professions.”  Alas, if he has simply said “lawyers” he’d capture a good chunk of the modern representative class.  He also elaborates on why there is no need to have an overly large number of representatives.

What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice.

Federalist 35 – Hamilton

We have finally almost reached the end of the first part of the Federalist Papers.  There are two more essays that deal with the issue of taxation, and in number 35 Hamilton describes how placing a limitation on the federal government’s taxing power would lead to great abuse of that power.

if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.

Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess.

If you confine the government’s sources of revenue, then the government will bleed that particular industry dry.  This will lead to the development of a black market, thus only exacerbating the problems.  It is better, therefore, to permit a broader range of tax powers so that the government doesn’t focus its attention too greedily on any one industry.  Perhaps Hamilton did not countenance the government attempting to suck everyone dry.

Federalist 34 – Hamilton

Alexander Hamilton continues his long train of articles on the subject of taxation in Federalist 34.  He trods much of the same ground that he covered earlier, again defending the idea that the states and the federal government have concurrent taxing powers.  He uses an example from Roman times to justify the idea that such a concurrent power can truly exist.

There is one element of this paper that deserves close attention.  An underlying theme of this particular number is the idea that the Constitution is meant to endure.  This is not an inconsequential notion.  There were those – Thomas Jefferson, for instance – who posited that constitutions should be re-formed and redone frequently.   I think that Hamilton’s words merit great attention, because they demonstrate that the Framers did believe that they were penning a constitution meant to endure for quite a long period of time.

Here is the key passage:

Federalist 33 – Hamilton

In Federalist 33, Hamilton tackles the issue of the necessary and proper clause.  Before delving into this essay, it’s worth noting that this clause would be the impetus behind the first major debate between the two principle authors of the Federalist Papers.  One of Hamilton’s first proposals as Secretary of the Treasury was the creation of a National Bank, a measure opposed by Madison.  Hamilton’s defense of the Bank revolved principally around a rather generous interpretation of the necessary and proper clause, something to keep in mind while reading this paper.

Hamilton largely dismisses the (in his mind) overwrought criticism of this clause, stating that it is merely declaratory.

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.

Federalist 32 – Hamilton

On the surface, Federalist 32 is a relatively minor work within the collection of essays written by Hamilton and Madison.  Yet this piece offers readers a very good insight into Alexander Hamilton’s mode of constitutional interpretation.

This essay is largely concerned with the concurrent taxation powers of the federal and state governments.  Hamilton rebuffs the idea that the states would be deprived of most of their taxing power, arguing instead that the Constitution leaves the states with the power tax most anything except where expressly prohibited.

He begins the essay with a subject that would be debated for years by Civil War historians.

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

Federalist 28 – Alexander Hamilton

In the 28th Federalist Paper, Alexander Hamilton continues to discourse on national defense and the fears of a standing army.  In this essay Hamilton seems to skirt between two extremes.  He seeks to promote the national government as the surest defender of peace and security, and yet he also wants to assuage fears that it will grow too powerful.  In other words, the government under this system will be strong enough to suppress rebellion, but it won’t be so powerful that it tyrannize the population.

Hamilton begins by observing that disruptions of the public safety are inevitable.  As he writes, “seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body.”  American history is somewhat happy in this regard, though there have always been moments of extreme unrest.  But from the perspective of Alexander Hamilton writing towards the end of the 18th century, it was inconceivable to think that there would be long periods of civil content.  Hamilton suggests that the large body of the public would support the government’s attempts to put down the insurgency so long as the majority had not lost confidence in the government.

The major fear is that a significant outbreak of rebellion could occur, and this would require a different sort of force.

Federalist 27 – Hamilton

In Federalist 27, Alexander Hamilton seeks to answer the charge that the Constitution “cannot operate without the aid of a military force to execute its laws.”  In other words, American citizens will obey the Constitution only at the point of gun.  Hamilton refutes this idea, suggesting along the way that the people of the United States will come to respect the Federal government to such a degree that they will obey the government’s dictates.  As he puts it:

Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.

Loyalty to the government will thus hinge in some fashion on how well-administered it is.  This being a historical blog, I will forgo the ample number of snide comments about current affairs that are crossing my mind at the moment.

Hamilton discusses the likelihood that the “general government will be better administered than the particular governments, and summarizes the arguments in favor of this supposition.  He goes on to say:

It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.

Hamilton predicts that as the general government has more day-to-day interactions with the people, it will draw from the masses a greater deal of respect and fealty.

I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channls and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.

No doubt IRS agents will cheerily assent to this characterization.  And after all, who is more loved than a federal bureaucrat?

Finally, the federal government will be able to employ state authorities to carry out its objectives.  This will be yet another inducement to popular attachments.

The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.

A thoroughly fascinating essay that proves, if nothing else, that even the greatest thinkers sometimes miss very, very badly.