The Federalist Papers

 

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us.

Federalist 45, James Madison

Our Founding Fathers were an odd combination of men of action and men of words, often times being both.  In The Federalist Papers we encounter hard thinking on government as fresh as tomorrow, as relevant as today and as timeless as yesterday.  No American can consider himself or herself educated unless an attempt is made to read these essays.  They are not an easy read, especially if one is unfamiliar with the history of the ratification fights in the states over the Constitution, but they are worth the effort.  Mercifully the essays are written in superb English, free of the cant and jargon that so disfigure so much writing in our time.

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.

Federalist 33, Alexander Hamilton

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Federalist 63 – Madison

In Federalist 63, James Madison picks up where he left off in Federalist 62 to discuss the Senate. At the outset of the essay he continues to argue that the Senate would provide a form of stability in government that would be reassuring to foreign powers. Moreover, the Senate, with its longer tenure, would be a stabilizing force in the national character.

Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.

He proceeds to this next point, and in some ways it is a bit of a paradox, as Madison himself admits:

I add, as a sixth defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.

This is paradoxical because the Senate – due to the nature of elections and the length of tenure – would seem to be the anti-democratic institution, yet Madison is here arguing it would be more responsible to the people. But note he says responsible, not responsive. In fact it is its non-responsiveness that makes it, paradoxically, more responsible.

Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.

The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.

The next argument on this point is yet another fundamental revelation of Madison’s political philosophy.

To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

In order for democracy to survive there needs to be an element of the constitution checking the democratic impulse. In some ways this almost sounds a bit like Rousseau and his famous declaration that the the people “will forced to be free” under his social contract. This is perhaps not so cynical, and it echoes a recurrent theme in Madison’s writings, namely, that the momentary will of the majority is one the same majority may come to regret after a moment’s reflection. It would therefore be beneficial to have an institution which existed to curb the spontaneous outburst of the democratic will. Over time, if the popular will remains as it had been, then the Senate will reflect this popular appetetite,  but only after sufficient time has passed.

In the next paragraph Madison has to answer himself in order to justify this viewpoint.

It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.

This is another recurring theme. Sure an extended republic, as advocated in Federalist 10, provides a mechansim for curbing violent passions, but auxiliary precautions are needed. It is not enough to trust the nature of the extended republic to provide safeguards against democratic exuberance; rather, other institutional mechansisms will also be needed.

Madison proceeds to outline how all historical republics had a Senate, and how these institutions are relevant to the American case. He then answers the charge that the Senate would become an aristocratic form of tyranny by first noting that “liberty may be endangered by the abuses of liberty as well as by the abuses of power.” He then provides a more substantive response:

Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?

It is check upon check upon check. In order for the Senate to become corrupted, the state legislatures themselves would have to become corrupted. In other words, unless every single other institution becomes corrupted, there is little or no chance of the Senate becoming corrupted. Thisis a seemingly endless labyrinth of institutional safeguards, combined with the federlist nature of the government and the extended republic, all meant to protect liberty from itself.

Federalist 62 – Madison

If you’re keeping score at home, yes I am skipping ahead. It’s not that Federalists 58-61 are not unimportant, but they cover a lot of the same ground about the manner and place of elections. I would like to move ahead to slightly meatier territory.

With Federalist 62 Publius (here Madison) turns his attention to the Senate. Madison first addresses the qualifications of a Senator as distinguished from a Representative, noting a Senator must be at least 30 years of age (25 for a Representative) and at least nine years a citizen versus seven for a Representative. This added age and residency reflects the weightier position, which generally requires more knowledge and a greater amount of time apart from foreign influence.

With regards to the mode of election, Madison states, “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” This one sentence provides a crucial bit of understanding of the Federalist mindset. The lofitier stature of the Senate necessitates an indirect mode of election. This mode of election lessens the democratic nature of the Senate, while simultaneously providing a greater say to the states in the representation of Congress. This is a critical element in the federalist design, which would be undermined later by passage of the 17th Amendment.

Madison then turns to the equal representation of the Senate. Here he essentially concedes this is a political compromise and not necessarily a reflection of deeper political thought:

Federalist 57 – Madison

Madison picks up where he left last time in Federalist 57 to defend the makeup of the House against charges it would elevate the few at the expense of the many. He offers up a five-fold argument, but first I wanted to examine this paragraph.

The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.

This sums up as well as anything Madison’s philosophy of governance. What undergirded Madison’s faith in the constitution and in the republic – likely even moreso than even Hamilton – was the expectation that virtuous citizens would generally be at the helm. These individuals would be not be motivated by self-interest, and would take a wide-ranging view of the common good. The constitution, he thought, was the best structural mechanism by which to ensure such individuals would be placed in positions of power. This assumption is a core one for Madison, and informs most of his work.

Now he’s not a naif. Federalist 51 aptly demonstrates his non-idealistic view of human nature. Enlightened statesman will not always be at the helm. This constitution places checks and balances to mange the ill effects of those circumstances. That said, Madison does have faith that, in the main, representatives will not be guided by ulterior motives.

Now let’s quickly examine Madison’s five main points.

Federalist 56 – Madison

The previous paper covered in this series – and I’m sure you all remember back four years ago when I discussed Federalist 55 – dealt with the size of the House of Representatives. Madison continued on the theme in the 56th Federalist Paper. Once again Madison was at pains to strike a careful balance, arguing that the House was large enough to accomodate representatives who would have adequate knowledge of their constituency, but not so large as to become an over-crowded mess, unable to accomplish anything ofg substance.

At the time of the Constitution’s ratification, a House district was designed to encompass approximately 30,000 people. Madison thinks this is a suitable size for a representative to understand the complexities of the district he represents. As he puts it:

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.

The implicit argument is the purview of the federal government will be quite limited, therefore a representative need only acquite expertise in subject matters that will directly impact his constituents. The representative did not need to be on a first-name basis with each of his constituents, nor did he need to be aware of every little bit of minutiae affecting them. He had to attain a general knowledge of those matters, and only those matters in which the federal government might have a say over the lives of the people he represents. Therefore he would not be spread too thin according to the original constitutional design.

So what are the areas of particular interest?

What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia.

A good representative will have to have some particular insight when it comes to regulation and taxation, but Madison did not think this required each state to have more than a handful of representatives, depending of course on the size of the state.

As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it?

Madison adds that the national legislature will include a number of individuals who will have already served as state legislators, and therefore they will be able to convey local information into national debates over legislation. As for the militia, differences in discipline may differ from state-to-state, but will not differ within each state, so a representative does need to possess a specialized understanding of local circumstances on this subject.

In the next paragraph, Madison asserts that the intra-state similarities justify a smaller number of representatives. Districts will not vary significantly. Over time states will diversify, growing larger in population and in the types of people occupying it. The constitution addresses this by granting an increase in the number of representatives as the population grows and becomes more diffuse.

Whether Madison’s logic still holds 238 years later considering the manifold increase in both the issues over which the federal government claims dominion and in the population, where average district sizes are now over 20 times greater than at the time of ratification, is a subject worthy of debate. In a sense the logic still holds, even if the federal government oversees many more matters of interest, and even if the districts are much larger. Districts may be larger in population size, but a representative’s ability to gather information is also dramatically improved. And though we lament the decline in the number of “swing” districts, it does mean a representative is likely reflecting the will of most of his or her constituents, if nothing else.

-Paul

 

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.