Well Constituted Republic:
A Guide to The Federalist
Boise, Idaho: Liberty Park USA Publishing Company
P. O. Box 16184. Boise, Idaho 83715
Copyright © 2007 by Louis Midgley. All rights reserved.
Copyright © 2007 of Electronic Texts by Michael L. Chadwick. All rights reserved. No part of this electronic text may be reproduced, distributed, stored in electronic databases, personal computers, search engine databases, web sites or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods without the prior written permission of the publisher. Electronic fingerprints have been placed in the text to prevent copyright violations.
TABLE OF CONTENTS
Chapter 1 – Introduction
Chapter 2 – Topical Outline of The Federalist
Chapter 3 – Volume I of The Federalist
Chapter 4 – Volume II of The Federalist
An Ideal Textbook for Law Schools
I have looked with attention over your intended proposal of a text book for the Law School. It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides & guards for the purpose. [Algernon] Sidney & [John] Locke are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones; but afford no aid in guarding our Republican Charters against constructive violations. The Declaration of Independence, tho' rich in fundamental principles, and saying every thing that could be said in the same number of words, falls nearly under a like observation. The "Federalist" may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it. Yet it did not foresee all the misconstructions which have occurred; nor prevent some that it did foresee. And what equally deserves remark, neither of the great rival Parties have acquiesced in all its comments. It may nevertheless be admissible as a School book, if any will be that goes so much into detail. It has been actually admitted into two Universities, if not more–those of Harvard and Rh:Island; but probably at the choice of the Professors, without any injunction from the superior authority.
Every Man Ought to Be Supposed a Knave
Political writers have established it as a maxim, that, in contriving any system of government, and fixing the several checks and controuls of the constitution, every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest. By this interest we much govern him, and, by means of it, make him, notwithstanding his insatiable avarice and ambition, co-operate to public good. Without this, say then, we shall in vain boast of the advantages of any constitution, and shall find, in the end, that we have no security for our liberties or possessions, except the god-will of our rulers; that is, we shall have no security at all.
I was raised in a home in which books played an important role. My father took seriously the admonition to seek wisdom out of the best books. Though he had never set foot in a university, he was fond of Shakespeare and owned well-worn copies of The Federalist and Alexis de Tocqueville's Democracy in America. When a conversation on some immediate partisan issue began, he would urge me to consult the best books rather than borrow from some current intellectual fashion. Hence I learned to seek and take seriously instruction of the American Founding.
In August 1950 I found in a bookstore in Wellington, New Zealand an inexpensive, used copy of David Hume's Essays Moral, Political, and Literary.3 I remember the excitement I experienced, when glancing through these Essays, I noticed that Hume dealt extensively with the problem of faction and certain other matters that reminded me of James Madison's contributions to The Federalist. At the time I assumed that I had been negligent in my previous studies because I could not recall having heard of a possible link between Hume and Madison. It was only after 1957 that I sensed the importance of what I had read in Hume's Essays when I eventually encountered the famous essay by Douglass Adair.4 And I can also recall the displeasure of one of my teachers at the appearance of a book because it seemed to him to be grounded on an inadequate reading of Madison's contributions to The Federalist.5
Subsequently I have been very pleased to see considerable scholarly attention given to The Federalist and the American Founding. However, some writers have been perplexed and even annoyed by these developments. One writer, for example, has complained that there is no scholarly consensus on the Founding and hence he describes "scholarship at a standstill" over the creation of the Constitution.6 But, as a glance at my bibliography will demonstrate, there has been considerable and even growing interpretative activity and a lively conversation. This pleases me because I believe that the more serious attention given to texts like The Federalist the better.
I have written this commentary7 on The Federalist with the hope that it can help generate a fresh and careful reading of that great text–one unencumbered as far as possible by a dependence upon the array of interpretative fads and fashions. Hopefully my effort will assist those approaching The Federalist for the first time. By making The Federalist more accessible to those approaching it for the first time, this guide is intended to fill a niche in the scholarly literature. But I trust that it will also open new possibilities for those already familiar with it.
In commenting on The Federalist I have avoided the temptation to focus attention on the wealth of secondary literature on this text, as well as the literature dealing with the writing of the Constitution and its ratification and implementation and subsequent interpretation. I have therefore not attempted to engage in a direct conversation with the secondary literature and even with those (such as Garry Wills,8 David F. Epstein,9 Morton White,10 and George W. Carey11) who have recently commented on The Federalist. In addition, I do not wish to make points by scoring them on others with whose interpretations I may tend to disagree, nor am I especially interested in bolstering my views by invoking the authority of others.12
For those interested in the range of issues that forms the scholarly conversation (or battle ground) surrounding The Federalist and the American Founding, or who desire to pursue issues further, I have provided a detailed bibliography to accompany this guide.
But where do I stand in the current debates over, for example, the presumed shift from an earlier republican ideology to a radically liberal understanding of public life? What position do I take on the question of how the Founders dealt with the civic virtue in the new regime? Did the Founders shift away from the older republican notion that government ought to be in the business of forming the character of the people? Or do I see signs in The Federalist that its authors were retrograde on democracy? It seems to me that something approaching a stance on these and other issues shows through in my commentary. But making my stance explicit, especially in terms of current scholarly debates, has not been one of my primary concerns.
Some readers may still wish to know where I stand on such matters. I will offer a brief explanation. I am, I suppose, what a prominent historian once derisively described as a "Straussian fundamentalist."13 But this tag needs an explanation. First, in our climate of relativism labelling something as "fundamentalist" makes it immediately suspect. And these so-called "Straussians" are presumably the followers of Leo Strauss–a controversial political philosopher and intellectual historian (inclusive dates) who has gained an immense influence in political theory and related disciplines. Strauss, as far as I am aware, published only one brief comment on The Federalist.14 It would be unwise to attempt to draw from one cryptic remark an authoritative teaching. Many of the essays included in my Bibliography, it turns out, were written by Straussians, who are currently having a large impact on the study of American Founding. Though these "Straussians" can hardly be seen as agreeing on meaning to be found in The Federalist or on the principles grounding the American Founding, those influenced by Leo Strauss tend to be deeply concerning about regime principles.
I am, however, not a slavish follower of some doctrines taught by Strauss. I might be seen as a "Straussian" and also perhaps even as a "fundamentalist," at least in Professor Wood's singular sense, primarily because I believe that one may learn something from superior authors, and I also believe that certain texts contain teachings that may turn out to be simply true. It is this assumption that causes those charmed by relativism to fear that they are faced with a kind of dangerous "fundamentalism" when they encounter the work of a so-called "Straussian." In addition, I also believe that some authors are in fact superior, though I recognize that at the margins there will be considerable disagreement over who they are. And there will also be various competing readings of those authors. Be that as it may, I include The Federalist among those texts I consider to have been written by superior writers.
But superior writers, like everyone else, are historically situated, and their circumstances inevitably manifest themselves in their writing. So I have no urge to avoid contextualizing a text or its author. And, of course, one can also learn much that is important about the past from the background "noise" or from the incessant "scribbling" or "gossip" generated by lesser authors or ordinary people, though I wonder about the significance of those views even when recovered in some detail.
But some scholars now seem to rest their intellectual pursuits on assumptions that reduce virtually all literary efforts to projections of circumstances or of received and competing opinions–to mere ideology.15 And these same scholars tend to be annoyed by those who begin with the assumption that superior authors and texts contain permanent truths or may have something of value to teach us that might somehow transcend time and place. Instead, they may strive to reduce even superior authors and texts to mere ideology somehow cast up by a deep structure.
A few historians complain about the kind of attention currently being given to The Federalist16 by political theorists. For example, one writer, in assessing the scholarship published during the bicentennial of the Constitution, protested that beleaguered "historians found that they had to share a stage crowded with law professors and political scientists. As a result, many historians experienced the bicentennial...as a sustained exercise in defending 'history' against alien disciplines."17
Such language can be read as suggesting that only those who are members of a club should dare to comment on the American Founding. But are not political theorist and especially those whose interest is the history of political theory not qualified to have opinions on the issues raised during the bicentennial of the Constitution? Presumably not, for this same writer then refers to what he describes as the "serious challenge" presented to historians by political theorists. And he seems to have a specific group of such theorists in mind: "Encounters with political theorists influenced by the late Leo Strauss have been particularly bewildering: the Straussians condemn 'historicism' and dismiss historians' efforts to contextualize key terms–like 'equality'–in the political discourse of the founding era. Because these theorists so often invoke their own interpretation of fundamental 'regime principles' to advance a conservative policy agenda, historians find them ideologically repellent and methodologically incomprehensible."18
I assume that I will be seen as one of those with a presumably "conservative policy agenda" busy perplexing and annoying writers who presumably have no agenda, political or otherwise, other than letting the facts speak their truth through them as detached, neutral observers. The dubiousness of such an implicit claim should be obvious to those not charmed by the mythology of historical objectivism.
Another writer has directed a caution at those of us who take seriously The Federalist and other similar texts. This warning is worth consideration. Professor Wood admonishes us that
I wonder whether it is permissible to "use" The Federalist "to understand the Constitution and its underlying philosophy." Why should the risk fall only on those who see in it prescriptive materials from which we might begin to fashion some critical understanding of contemporary politics?
And we might also ask whether any such "use" of The Federalist, whether directly or by studied neglect, might be prescriptive in a more subtle way. Could Professor Wood be telling us that The Federalist has nothing prescriptive to say to us now about republican regimes? If so, he has not made a case for his view, for such a claim is simply not self-evident, whatever else one might say about it.
Among other things, what I attempt in this commentary is a reconsideration of the possibility that there are potentially prescriptive truths in The Federalist–teachings that perhaps transcends time and place and hence doctrine that is potentially useful here and now. I implore the reader to leave open the possibility that what might be learned from that text will teach us why the regime beholden to the Constitution has persisted despite a multitude of subsequent human foibles and accidents.
But I must also admit to being perplexed by the charge by that the kind of endeavor I am undertaking is essentially flawed because I take certain texts seriously. Could it be that to make such an assumption necessarily involves being engaged in promoting what some scholarly faction currently considers a nefarious political ideology? But such a charge seems to overlook the fact that all scholarship has a political setting, motivation and ideological component. Even or especially the complaints of a few who are troubled by what they may denigrate as "fundamentalism" may turn out to have a political grounding and function, if only to preserve the domain of historical scholarship from competition from those currently considered interlopers from alien disciplines.
But one also suspects that there may be some more deeply partisan political ideology lurking behind warnings that we should not be attempting to mine texts like The Federalist for truths relevant to our own situation. Be that as it may, we certainly need not remain in thrall to what has recently been described as the mythology of presumably objective historians advancing objective history.19 And there is something perhaps at least partially correct in the currently fashionable observation that all writing has a political context and function.
Those who have been puzzled or irritated by the interest in the American Founding by those who have been denigrated as "fundamentalists" seem to me to be engaged at times in defending the notion that the new science of politics invoked and set forth the authors of The Federalist (and hence presumably grounding the Constitution) were not part of an older whiggish and more authentically republican idealism that has been seen in the Declaration of Independence and the events of 1776. This new science of politics available to those who fashioned and defended the Constitution, according to these critics of the Founding, manifested an unwarranted submission to the realities of partisan politics and the avarice and ambition upon which such activities rested. And this new science is also seen as a turning away from an earlier more authentic republican ideology that was most competently defended by those opposed the Constitution. And it also signaled an acquiescence to a less virtuous, more selfish and partisan politics. Hence the adoption of the Constitution marked the decline of an older ideology that saw republics as dependent upon certain civic virtues. And the new order eventually gave in to a cacophony of clashing interests as the substance of public life.
In this view the Constitution, and the regime it inaugurated, is in some crucial ways is not genuinely republican in the more traditional sense. Instead the new order facilitates the establishment of a crass commercial society in which the free play of clashing interests takes the place of the moral solidarity envisioned in the older republican ideology. It grounds and encourages a regime which is not authentically democratic, but which is, instead, in some sense elitist and undemocratic. The earlier confidence in the people to rule themselves without institutional or legal restraints has presumably been inappropriately frustrated by the efforts of those who assembled in Philadelphia in 1787. The older and democratic ethos was thus presumably set aside. Faith in the ability of the people to govern, as well as concern for the civic virtues necessary for liberty and self-government was allegedly replaced by the new science of politics set forth most coherently in the pages of The Federalist.
It is true that those who fashioned the Constitution, and those who defended it in The Federalist, clearly saw their venture as ushering in both a new science of politics and a new order of the ages. Was that new order republican? Those who are offended by "Straussian fundamentalism" may assume that it was not. Instead, they may see a wrenching shift from a republican ideology to a new liberal ethos. But we still must ask whether the proposed Constitution less or more authentically republican than the state constitutions or the Articles of Confederation? One place to begin the consideration of this and related questions is in the pages of The Federalist. But it would be a mistake for the reader of The Federalist to approach that text with a preunderstanding drawn from the ideology of those who, for whatever reason, are more or less hostile to the understanding of the Constitution defended in that text.
One source of such hostility, and its presence should not be overlooked, is the penchant for explaining the Constitution as a reaction to the genuinely democratic ethos of the Revolution. Of course, something new is found in the Constitution–the authors of The Federalist claim that it was grounded on a new science of politics. On the other hand, it may also be a mistake to deny that the some grounding principles embodied in the Constitution were entirely other than those found in classical republican thought. One problem in understanding the Founding has been in figuring out when this shift from and older or classical republican ideology began. Was it Madison and Hamilton or Locke and Hobbes or Montesquieu, or is it foreshadowed as far back as Machiavelli? Of course, some have seen the Constitution itself as the point at which a presumably radically new liberal ethos–which celebrates acquisitive self-interest and which also essentially dispenses with the necessity of civic virtue as such things where previously understood in the earlier republican ideology–take hold of American public life and thought. As interesting and even crucial as this and related questions are, we need not settle them in order to begin to understand The Federalist. And it may be that a careful reading of this text will help in making sense out of the contemporary conversation over the Constitution.
But the largest impediment to understanding the Founding seems to rest on a studied indifference to the question of the possible truth of the stance taken in texts like The Federalist. For example, Professor Wood grants that
When confronted with contrasting meanings of the Constitution, historians, it seems to me, are not supposed to decide which was more "correct" or more "true." Our task is rather to explain the reasons for those contrasting meanings and why each side should have given to the Constitution the meaning it did. There was not in 1787-1788–and today there is still not–one "correct" or "true" meaning of the Constitution.20
Professor Wood adds that "The Constitution means whatever we want it to mean. Of course, we cannot attribute any meaning we want and expect to get away with it. We have to convince others of our 'true' interpretation, and if we can convince enough people that that is the 'true' meaning, then so it becomes."21
I write from a perspective that at least entertains the possibility that some texts may turn out to contain teachings that are more than merely somehow provisionally "true" because they just happen to have won for the time being some power struggle with competitors. My understanding is that the one mischievous effect of relativist responses to the past is the chartering of the tendency reduce great literature to ideology generated by circumstances–the mere expression of movements in some deep structures beyond rationality and human agency. Oddly, those who hold such views neglect to apply them to themselves.
The reader should be aware that I have written with a specific edition of The Federalist in mind.22 Though this guide is specifically keyed to one specific edition of The Federalist, the citations are such that it can, of course, be used with any edition.
The Federalist is the chief though not of course the only intellectual legacy from the founding period of the American democratic republic. More than any of the other contributions to the controversy over the ratification of the proposed Constitution published late in 1787 and in 1788, The Federalist constitutes something close to the official commentary on the that document. Two of its authors–Alexander Hamilton and James Madison–because of their participation in the Philadelphia conversion, were among those best fitted to produce such a thing. Originally addressed to the "People of the State of New York," these eighty-five essays appeared under the name of Publius–the pseudonym adopted from the name of a now long-forgotten Roman patriot. These remarkable essays were originally published in the New York press, beginning on October 27, 1787 in The Independent Journal. By May 28, 1788, they were collected and republished in two volumes under the title The Federalist.23
After the Convention in Philadelphia had ended on September 17, 1787, and the delegates had signed the proposed Constitution,24 it was then forwarded to Congress. On September 20, the Confederation Congress had received the Constitution and the Convention's resolutions concerning the proposed mode of ratification. And then on September 28, a somewhat reluctant Congress transmitted the Constitution to the people of the various states for their consideration, as requested by the Convention. Special conventions to consider the proposed new Constitution were eventually held in each state, except Rhode Island, which voted on March 24, 1788 not to hold a convention to consider ratification of the new plan, thus in effect rejecting the Constitution.
When the proposed Constitution reached the public in September 1787, the press in New York and elsewhere was immediately filled with articles both attacking25 and defending it.26 Then, on September 27, 1787–just ten days after the adjournment of the Philadelphia Convention–someone writing under the name of Cato published a letter in the New York Journal which commenced what eventually became a rather forceful attack on the proposed Constitution. Eighteenth-century Americans knew the original Cato as a patriot who had defended the virtue of republican Rome against the tyrant Caesar. Then someone else, writing in the Daily Advertiser–one clearly sympathetic with the proposed Constitution, who ended his letters with the name Caesar–rather intemperately defended the work of the Philadelphia Convention and urged the ratification of the new plan. This response to Cato rather forcefully, somewhat imprudently warning that "Cato, in his future marches, will very probably be followed by Caesar."27 It has been assumed that the letters signed by Cato were the work of George Clinton, the powerful governor of New York, but that view has recently been labelled "almost groundless."28 It has also been assumed that Alexander Hamilton was the author of the Caesar replies to Cato, but that view, according to a recent study, "is open to strong doubts."29 So it is not known for sure who these warriors were. Be that as it may, the effort of Caesar, whoever he was, at least from the perspective of propaganda in support of the proposed Constitution, was apparently a failure. For one thing, the tone of the Caesar letters was far too magisterial and condescending, and hence, unsatisfactory as a vehicle for persuading those in New York with misgivings about the proposed Constitution.
Those favoring ratification of the proposed Constitution quickly developed other literary ventures to advance their cause.30 One of these efforts was the series of essays published initially in The Independent Journal31 that we know as The Federalist, from the title given to the series when it was put in book form by Alexander Hamilton and then published by J. & A. McLean & Company, owner of The Independent Journal. The first volume containing the first thirty-six newspaper articles appeared on March 22, 1788, at which point the series was only half finished; volume two was published on May 28, 1788.32 Though the authorship of The Federalist was kept secret at the time, it later became known that Alexander Hamilton, James Madison and John Jay were the authors. Hamilton and Jay planned the project. And after Gouverneur Morris declined to assist and William Duer failed to produce something satisfactory, Hamilton sought the collaboration of James Madison. Jay's participation was limited because of ill health. Hamilton thus planned and executed the series.33
The Federalist appears to have been conceived by Alexander Hamilton for the special situation in New York, where he was faced with the task of securing its ratification. But the literary endeavor signed by Publius eventually had consequences and an impact far beyond the immediate quarrel over ratification in New York. Copies of the two volumes were available, for example, to the supporters of the Constitution in the ratification debate the took place in Virginia. But perhaps more important than any immediate impact, the work of Hamilton, Madison and Jay, by clarifying the meaning of provisions in the Constitution, and setting forth the principles upon which its basic structure, mechanical features, institutions and laws were thought to rest, has turned out to be the single most important essay on politics by an American. Whatever might have been its impact on the ratification struggle, the work of Publius provided a more attractive and intellectually powerful apology for the Constitution than other efforts made by its friends, and especially that undertaken by Caesar. This, more than any other reason, has made The Federalist a classic. And, in addition to being an eloquent plea for ratification of the new plan, it also provides the nearest thing to an official commentary on the Constitution.34
The Federalist was by far the most extensive and sophisticated of the polemical literature generated by the ratification controversies in the various states on either side of the issue.35 The unsigned pamphlet entitled An Address to the People of the State of New York, On the Subject of Constitution Agreed upon at Philadelphia, The 17th of September, 1787, written by John Jay, but unsigned, appears to have had more immediate impact on the ratification struggle in New York.36
The Federalist accomplished the intellectual task set for it by Hamilton primarily by answering various objections raised against the proposed Constitution.37 Each essay was addressed "to the people of the state of New York," but they seem to have also been addressed to the electorate generally, and hence to the least partisan, most moderate and candid, most able and best educated–the wise and virtuous–in that age, as well as in any age in which republican government and its principles remains a matter of concern.
In the words of Publius in Federalist 34, the delegates to the Philadelphia Convention sought "to look forward to remote futurity," because they saw themselves as "framing a government for posterity."38 The Federalist seems to have been intended by its authors to set forth for "remote futurity" the relative excellence of the proposed Constitution, especially when contrasted with the Articles of Confederation, or other likely ways of dealing with the well-known exigencies of the troubled Confederation that can be traced to flaws in the Articles of Confederation. And yet the modern Publius–those we know as Hamilton, Madison and Jay–clearly looked beyond immediate issues and narrow, partisan or personal struggles. Like the Framers, who doubted that constitutions ought to be framed with only a calculation of existing exigencies in mind, in making his apology for the Constitution, Publius fashioned a work of enduring value. Perhaps part of its reputation stems from the fact that it was the longest and most sustained literary effort written either for or against the proposed Constitution. And it was immediately made available to the public in book form. Its rivals were at best mere pamphlets. Although it was an instance of what we might now call campaign propaganda, it was clearly more than merely that, since it was fashioned to speak to the moderate, thoughtful people of the time, as well as to similar people in future ages, with a complex and carefully articulated set of arguments, some of which manifest a remarkable thoughtfulness, elegance and permanence. There is little in the literary venture of Publius that can be called vulgar. Hence it is not entirely misleading to say that the literary work of Publius in some measure transcends the immediate confines of time and place in which it was fashioned.39
Other than the once highly influential reading of the Tenth Federalist by Charles Beard's An Economic Interpretation of the Constitution,40 historians concerned with the American Founding have more or less tended to ignore The Federalists or at least have not attempted to examine carefully its contents, for the most part leaving its detailed interpretation to others. When Beard concluded that the Constitution was not a genuinely democratic document, but was created by creditor and mercantile elements troubled by the more popular tendencies of the Revolution and hence intended by its authors to frustrate democracy, he turned the attention of his readers to the Tenth Federalist.41 But had Beard read Madison correctly? As part of the eventual onslaught on Beard's book, his reading of Madison's argument in the Tenth Federalist was eventually drawn into question.42
And some political scientists also seem to have been involved in another influential reading or perhaps misreading of The Federalist. Some have tended to picture Madison and hence to see in the Tenth Federalist as an ideological forerunner to their own understandings of what has come to constitute an "interest-group" theory of politics or what is also sometimes called a "pluralist" understanding of American politics. But it seems quite doubtful that Madison in the Tenth Federalist was the originator of the kind of explanations of American politics later invoked by the likes of Arthur F. Bentley,43 David Truman44 or a host of other political scientists. Hence one might agree with Gordon S. Wood, who has claimed that "despite his keen appreciation of the multiplicity of interests in a commercial society, Madison was not presenting a pluralist conception of politics. He did not envision public policy or the common good emerging naturally from the give-and-take of hosts of competing interests."45 And some other political scientists who seem to have given Madison's arguments in The Federalist some sustained attention, have ended up, if Robert Dahl46 is any indication, according to his critics, profoundly misunderstanding those arguments.47
The tendency of some historians to adopt a relativist (or historicist) stance has also led them to brush aside texts like The Federalist as mere expressions of the times. Hence, even when they take up The Federalist, some historians still tend to want to explain it away as a mere reflection or product of some deep structures or forces in the larger environment as those things are understood through the categories employed in the latest interpretive fashions, which are thought to form the context in which a given text must be situated. When a text like The Federalist is explained as a mere product of a deep structure beyond human agency, it becomes understandable primarily through the categories and assumptions of those who now have fashioned or found, at least in their estimation, an interpretative framework that allows them to understand authors and their texts better than they understood themselves. This kind of assumption, I believe, may be a serious mistake.
In addition, because Hamilton and Madison are known to have disagreed on a number of matters, especially after the eventual ratification and implementation of the Constitution, when they actively entered the political arena, it has been assumed that the arguments of The Federalist may or even must reflect fundamental disagreements over certain crucial matters, which are known to have emerged later. The Federalist is thus sometimes assumed to have a kind of "split-personality." Like the assumption that The Federalist was merely propaganda, the notion that it is an inconsistent work of fundamentally incompatible writers has been used to depreciate it somewhat.
It may, of course, be true that the work of Publius is marred by a profound inconsistency between the authors. That possibility cannot be ruled out prior to a thoughtful reading the text. But there are good reasons for believing that such a notion is mistaken. The Federalist, it must be emphasized, originally appeared as the work of Publius, and not as the work of two (or three) authors each presenting alternative accounts supporting the proposed Constitution. And it does not seem to have occurred to its initial readers as the work of multiple authors.
Publius claims to supply the true account of the Constitution, as well as a sketch of the grounding principles of the regime and its institutions that ratification would put in place. These principles constituted what Publius called a science of politics, some of which he claimed were essentially new discoveries. When taken together, according to Publius, these principles make possible a genuinely free or republican government. The literary character of The Federalist allows Publius to present a remarkably consistent as well as comprehensive account of the Constitution. Hamilton and Madison, whatever their own misgivings about the new plan–and both had misgivings–or their deeper theoretical differences seemed to have agreed to offer a concerted explication and defense of the Constitution. From my perspective, it would be a mistake to try to read back into the words of Publius the disagreements that took shape after the ratification of the Constitution, and especially those that emerged in the heat of the partisan political battles that took place after its implementation. In the context of the struggle to achieve ratification The Federalist provides evidence that they reached an accord on the proper explication and defense of what had been previously worked out in the Philadelphia Convention. And, in addition, they appear to have agreed on how best to explain and defend the Constitution, and also on the strategy with which to make the new plan most attractive to those they were seeking to persuade, or at least less odious to those who could not be persuaded. In any case, from the perspective of both the friends and supporters and detractors of the proposed Constitution The Federalist did not appear as a work of two (or more) competing visions of the new regime. In what follows I have therefore adopted the convention of referring to the authors of The Federalist as Publius, which is the name of the author in the eyes of its initial readers.48
From the period of the American Revolution through the early years of the Republic, the use of pen names was the accepted way of commenting on issues of concern to the public. Hence the bulk of the controversy over the proposed Constitution on both sides–both from what can be called the pro-Constitution and the anti-Constitution parties–was thus conducted behind a veil of anonymity, though it was not uncommon that at least some in the audience would have a reasonably good idea of who might have written particular essays.
The habit of describing the supporters of the proposed Constitution as "Federalists," and the critics as "Anti-Federalists" took root almost from the beginning of the ratification struggle, I have deliberately chosen not to label the adversaries of the proposed Constitution "Anti-Federalist" precisely because this was not their perception of their own stance. In addition, there is some irony in the fact that the pro-Constitution party was able to stake its claim to the label "Federalist." The adversaries to the new Constitution thought of themselves as the true Federalists, that is, they fully accepted the traditional understanding of what constituted a federal or confederal union. They saw such a union as essentially a league of sovereign, independent states. It was the Framers of the Constitution, under the influence of nationalists like Madison, who had moved beyond such an understanding by insisting on the necessity for a general (or national) government in addition to the remnants of a federation or league.
The defenders of the proposed Constitution were therefore more properly nationalists rather than federalists, if the traditional understanding of those labels is to determine the matter. But it is also true that, in the period immediately preceding the Philadelphia Convention, those who expressed concern over the fate of the Union, and those who were anxious over the weakness of the Articles, tended to think of themselves as federally-minded, or "federal" in disposition. Those nationalists, who came to dominate the Philadelphia Convention, were concerned about the fate of the Union, and hence they were "federalists" and were seen as such at least in that sense. Herbert Storing claimed that "this was the usage that entitled the Federalists to their name."49
As the ratification controversy became more heated, in addition to the series of letters signed by Cato and Caesar, numerous other articles appeared in the newspapers in various states attacking or defending the proposed Constitution. The ratification debate was a period of intense political pamphleteering. Some of the literature critical of the Constitution, for example, carried rather homely tags like Centinel, A Federal Farmer, An American, A Son of Liberty, A Watchman, or a Columbian Patriot, while some of it appeared under pen names Brutus, Agrippa or Cincinnatus–names with more classical allusions and especially those that invoked thoughts of republican Rome. Striking or even symbolically powerful pen names were part of the style of political pamphleteering at the time. They were popular partly at least because they directed attention away from personalities.
But why did the authors of The Federalist employ a pseudonym? At least part of the answer is that it was then the prevailing custom to present political views for public consideration without always clearly revealing the identity of the author or authors. Much of the debate over the proposed Constitution was conducted by essentially anonymous warriors fighting their battles behind the shroud of anonymity provided by pseudonyms. This literary convention allowed the participants in the debate to focus on issues rather than personalities.
Both Hamilton and Madison seem to have taken the business of pseudonyms seriously, as did some others at that time.50 Why publish the series of letters intended to defend and explicate the meaning of the proposed Constitution under the name Publius? What might that name signify? For one thing, the venerable name Publius calls to mind what would in 1787 have been immediately understood as classical republican public-spiritedness. The name Publius was adopted from Valerius Publicola, a Roman patriot, who had, according to Plutarch, managed to save a floundering republic after the overthrow of Tarquin, the last Roman king.51 It seems to have been chosen to convey something of the character of the argument that Hamilton wanted to present in support of the Constitution. Publius can be compared with Caesar, since both gave the appearance of being "strong men." But Publius can also be contrasted with Caesar in one important way–he contributed to saving a republic, while Caesar, commanding an army, acted in a manner seemingly incompatible with its continued existence. Hence the name Publius identified one who was known to have brought virtues, including an appropriate public spiritedness or patriotism, to the floundering Roman republic, and hence made available to a deeply troubled people in a time of need an understanding of the science of politics, an understanding of man and civil society, even a wisdom and knowledge that was otherwise unavailable to them. The modern Publius (our "citizen of the state of New York"), like the ancient model, is one presumably especially fitted to assist the people in defending, preserving and improving their republic.
The Federalist begins with an outline of the argument to be presented in the proposed series [1.16].52 Beginning with the question of the utility of Union or the Union Argument, Publius starts with the one subject upon which there was the least possible initial disagreement. He can thus start in such a way that his audience will not be initially challenged and certainly not offended by his arguments, and will find itself essentially in agreement with what is being presented [see 1.18]. By proceeding in this manner, and by avoiding demagoguery and personal attacks on critics of the Constitution, Publius was able to present a statement of the most obvious weaknesses in the existing Union, and also set forth the acknowledged ends of Union, which upon close examination turn out to contain indications of what must be done to achieve those ends. By beginning the discussion of the new Constitution within a framework of an inquiry into a question upon which there was the least initial disagreement, Publius approached the most agreed upon issues first. But, it turns out, one cannot uncover the weaknesses in the Articles of Confederation without thereby taking at least an indirect stand of the more difficult and hence controversial issues, that is, those that surround the very possibility of free or republican government. Publius, in this way, discreetly introduces some of his views on the most disputed matters, though in a way that conceals somewhat the radical and controversial character of those arguments. This is the tactic employed particularly in the arguments found in the first volume of The Federalist (numbers 1-36) in which questions concerning the safety and prosperity of the Union tend to dominate.
The intentions of Publius are thus complex, the literary character of The Federalist is also somewhat enigmatic, portions of the argument are carefully reasoned, and other portions richly illustrated by historical exemplars. Part of this difference can be traced to the composite authorship of these essays,53 but not all of it. It is therefore necessary to read The Federalist with considerable care. The student of this wonderful book must grapple with the subtleties and complexities of the text in order to grasp the key arguments, as well as follow the point being made with the many historical illustrations and examples offered by the wise men who stand behind Publius.
I have fashioned this commentary on the assumption that a guide to The Federalist should make more accessible the concepts and arguments of that great interpretation of the Constitution. As I have already explained, I believe that a commentary should avoid as much as possible imposing exterior categories and explanations on the text. It should function as a prologue and opening to the text. Some assistance may be needed to understand the things that seem to be assumed by Publius or that may otherwise be perplexing to the reader.54 But no commentary should or can take the place of a careful reading of the words of Publius. Unfortunately some of even the best literature on The Federalist has tended to impose categories and assumption that are foreign to the horizon of Publius upon the text.55 Instead, I believe that a guide should aim at assisting the reader in uncovering something of the meaning of what Publius published in defense of the Constitution. The purpose of this commentary is thus to make the meaning of The Federalist more accessible, and not to take the place of that book. It is also intended to assist the interested or potentially interested reader of The Federalist to appreciate something of the richness and complexity of that masterpiece.56
TOPICAL OUTLINE OF THE FEDERALIST
Since we are dealing with essays written in the form of letters to the editor of a New York newspaper–papers published rapidly over the span of a few months–at first glance, it may appear that the work of Publius is somewhat jumbled and not tightly organized. As we will see, that assumption is inaccurate. But in order to see the orderly arrangement of topics treated by Publius and the basic structure of the argument being put forth in The Federalist, careful attention must be given to the over-all plan of the work. The place to begin looking at that plan is in the short outline of what Publius promises to accomplish [1.16]. He begins his apology for the proposed Constitution by dealing with what he calls the Union. We are somewhat familiar with this term from the language of the Preamble to the Constitution. The purpose of that document is, among other things, "to form a more perfect Union." The Federalist begins with that theme. We may label it THE UTILITY-OF-UNION ARGUMENT, and various aspects of it are encompassed in the original first volume of The Federalist (2-36). There may have been somewhat less initial familiarity with the other great aim of the Founders, according to Publius, which was to achieve "a well constituted republic," or what we may call THE REPUBLICAN ARGUMENT. Publius makes this the core of the original second volume of The Federalist (37-83). These two arguments form the substance of the analysis of the new plan provided by Publius and they control the various subordinate themes taken up in The Federalist in defense of the proposed Constitution.
In his introduction to The Federalist, Publius discloses that he will advance the following arguments in defense of the proposed Constitution and hence for its ratification–these arguments were presented originally in two volumes, but have subsequently been published in numerous editions as a single volume:
VOLUME ONE OF THE FEDERALIST
I. INTRODUCTION TO THE SERIES. (See Federalist 1.)
II. THE UNION ARGUMENT [consisting of three parts]:
A. "The utility of UNION to your political prosperity" [1.16]. (See Federalist 2 through 14.) This portion of the argument by Publius seems to have been developed as follows:
1. The future prosperity of America depends upon a firm Union. (See Federalist 2.)
2. The dangers to the Union from foreign intrigues and wars. (An argument that the government under the Articles of Confederation cannot provide safety from foreign threats [see Federalist 3 through 5], which is then coupled to the argument that a weak government may disintegrate into warring confederacies [see Federalist 6 through 8].)
3. The dangers to the Union from the disease of domestic faction and insurrection. (An examination of the evils of domestic or internal faction and insurrection, and the proposed cure, which is to be an extended republic.) (See Federalist 9 through 14.)
B. "The insufficiency of the present Confederation [the government then existing under the Articles of Confederation and Perpetual Union] to preserve that Union" [1.16]. (See Federalist 15-22.) This portion of the argument seems to have been developed as follows:
1. The absence of the necessary energy in the Union under the Articles of Confederation. (See Federalist 15-17.)
2. The government under the Articles is flawed because it follows the pattern of leagues that in the past had failed. (See Federalist 18-20.)
3. The absence of the power to tax effectively under the Articles of Confederation. (See Federalsit 21.)
4. Miscellaneous weaknesses in the government under the Articles of Confederation. (See Federalist 22.)
C. "The necessity of a government at least as energetic [that is, powerful] with the one proposed [by the Philadelphia Convention], to the attainment of this object," which is "the preservation of the Union" [1.16]. (See Federalist 23-36.)
1. The need for a Union with energy sufficient to provide for the common defense. (See Federalist 23-29.)
2. The power to tax in a well-constituted Union. (See Federalist 30-36.) It will be noted that Federalist 41-44 in some sense retrace the arguments offered in Federalist 23-36.
VOLUME TWO OF THE FEDERALIST 57
III. THE REPUBLICAN ARGUMENT [consisting of one part]:
"The conformity of the proposed Constitution to the true principles of republican government" [1.16]. (See Federalist 37-84.) The "more perfect Union" that will follow from the adoption of the proposed Constitution, according to Publius, will be shown to be sufficiently republican, when the true and new republican principles are properly understood. This portion of The Federalist contains the following sections, which were not specifically described by Publius when he set out the plan for the series, but which are implied by the manner in which he proceeds or are set out in the opening passages of Federalist 37, 39, 41, 47, 52, 62, 67, 78, 84 and 85.
1. On the framing of the Constitution–general introduction. (See Federalist 37-40.)
2. On the extent of the powers vested in the new republican government. (See Federalist 41-46.)
3. On tyranny and the separation of powers. (See Federalist 47-51.)
4. The composition of the departments under the new republican regime; the structure of the national government. (See Federalist 51-83.)
a. Legislative department. (See Federalist 51-66.)
House of Representatives. (See Federalist 52-61.)
Senate. (See Federalist 62-66.)
b. Executive department. (See Federalist 67-77.)
c. Judicial department. (See Federalist 78-83.)
IV. THE ANALOGY OF THE NEW PLAN WITH THE CONSTITUTION OF NEW YORK
Though Publius promises to examine the analogy between the proposed Constitution and the constitution of the State of New York [1.16], it was not directly undertaken, because it was addressed in various locations throughout The Federalist. It was therefore thought unnecessary to give it special attention [85.1].
V. THE PROTECTION OF REPUBLICAN LIBERTIES . (See Federalist 84.)
"The additional security which its adoption will afford to the preservation of that [republican] species of government, to liberty, and to property" [1.16]. Only at the very end of The Federalist does Publius directly take up this last argument, and only one essay is specifically devoted to that topic.
VI. CONCLUSION TO THE SERIES. (See Federalist 85.)
SOME CONSIDERATIONS IN READING THE FEDERALIST
In what follows an effort has been made to draw attention to the structure of the argument of The Federalist by setting the individual essays within what Publius called at the end of his project "the formal division of the subject of these papers, announced in my first number" [85.1]. Special attention must be given to the plan of the book, otherwise it is, I believe, rather easy to be confused or bewildered by the rich historical illustrations, the analogies with other constitutions, the unusual rhetorical features, and the intricacies and subtleties of the arguments. I therefore follow closely the initial outline provided by Publius [1.16] and also any other subsequent clues to the development of the argument. And given the haste with which these essays were written, there are far more structural clues than one might expect. The initial outline provided by Publius has been supplemented here and there, following as closely as possible clues provided in the text itself.
Publius advances the case for the proposed Constitution, initially at least, by inquiring into the maladies that he believes afflict the Union (Federalist 2-22) under the badly flawed Articles of Confederation, and then by showing that the proposed Constitution, or something very much like it, is required to deal with those exigencies (Federalist 23-36). The safety and prosperity of America is shown to rest on the choice to be made in the deliberation over the ratification of the Constitution. It appears that what Publius calls "prosperity" hinges on success in providing a more perfect Union. Publius thus argues that prosperity will result from the adoption and implementation of the new Constitution, which has the preservation of the Union as one of its primary objects.
The choice before the American people is thus at least initially pictured as one made necessary by the desire to enjoy the fruits of Union. And among the code words used by Publius to identify these fruits is "prosperity." The question of the utility of the proposed Union for the prosperity of the nation, however, can only be fully answered when republican principles are properly understood, and when the merits of the proposed Constitution are correctly understood. That portion of the argument–the argument that the proposed Constitution conforms to the true principles of republican government–is taken up in the second half of The Federalist, where the republican worthiness of the Constitution is the central issue, and not, as in the first half, where the unworthiness of the Confederation and the current exigencies of the Union are placed before the reader in detail.
Publius intended to persuade readers of The Federalist that it is necessary, as well as wise, to adopt the proposed Constitution. This was done, at least initially, by answering the objections raised against it. The initial set of objections concerns the character of the proposed Union. But Publius eventually takes up objections advanced by those who were often passionately devoted to republican principles, as they understood them. Eventually, Publius addresses those with sincere and solid attachments to republican principles, who tended to spurn the new plan, and who did so precisely because they doubted whether it was sufficiently or properly republican. Thus, after setting forth the Union argument, with its basic appeal to the low but solid ends of safety and prosperity, Publius is then able to examine the question of whether the government under the proposed Constitution would conform sufficiently to republican principles to warrant its adoption. This portion of his argument demanded an inquiry into the theory of republican government. When the principles upon which moderate and successful free governments must be made to rest have been properly uncovered and examined, those true republican principles can then be employed as the standard with which to measure the proposed Constitution. Though some of these issues are brought to the attention of the reader in the first volume of The Federalist (1-36), it is primarily in the second volume (37-85) where they receive their fullest and most adequate treatment. But certain of the most crucial elements of what Publius eventually affirms as the true republican principles, as I will strive to demonstrate, are introduced in the course of the treatment of the Union Argument in the first volume (Federalist 9, 10 and 14) is an unobtrusive manner.
VOLUME ONE OF THE FEDERALIST
I. INTRODUCTION TO THE SERIES
The Federalist No. 1; Independent Journal,58 October 27, 1887 - Hamilton
GOVERNMENT FROM REFLECTION AND CHOICE; THE "LESSON OF MODERATION"
In this initial essay, Publius provides his readers with a general introduction or prospectus for the entire series that is to follow. He begins by claiming that the American people are faced with a momentous choice as they consider the proposed Constitution. They are called upon to decide whether to ratify the proposed Constitution. And that choice, according to Publius, concerns nothing less than the "fate of an empire" [1.1]. In so doing they may also settle the fate of free government everywhere.
The matter before the American people is also said to include the question of whether good government can be established by "reflection and choice," or whether human societies "are forever destined to depend for their political constitution on accident and force" [1.2;]. This way of setting out the gravity and potential consequences of the decision before the people of the State of New York, as they approach the question of whether or not to ratify the proposed Constitution, is followed by a plea for those called upon to decide the fate of the American empire to exercise the virtue of moderation, as well as candor, as they consider the merits of the proposed Constitution [see 1.4]. The Federalist thus begins with an appeal to the virtue of moderation. And the civility of the essays by Publius that are to follow manifest a large measure of both moderation and candor, as we will see.
Publius clearly recognizes that the proposed Constitution faced obstacles. For example, it has already encountered opposition from those in the states who may have feared a reduction in power or pride of office, or even income. Publius then warns his immediate readers of the consequences that may flow from the failure to ratify the proposed Constitution [1.3]. And he also points out that the Constitution may be opposed by those whose "perverted ambition" will cause them to hope for some gain from the division of the states "into several partial confederacies" [1.5]. But he appears to be directing his appeal to another audience, and not to those whose passion has prevented or perverted calm rational judgment. But, of course, not all of the reservations concerning the new plan had at that point or will thereafter come from the interested or ambitious. Some opposition comes from "the honest errors of minds led astray by preconceived jealousies and fears" [1.6]. Perhaps carefully and calmly articulated arguments can reach that group. But even that group must be taught what publius calls a "lesson of moderation" [1.7].
But the list of obstacles to the proposed Constitution set out by Publius is just the beginning. In the process of listing some of the sources and grounds for opposition to the proposed new Constitution, Publius speculates about the causes of erroneous or faulty judgments on questions of importance to the community. "So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as the right side of questions of the first magnitude to society" [1.7]. Publius then sketches something of the evils that afflict society when the virtue of moderation is absent.
This portion of the introduction to The Federalist contains some wonderful passages, some of which teach lessons that go beyond his immediate concern with the struggle over the ratification of the Constitution. Publius grants, at one point, that "so numerous indeed and so powerful are the causes which serve to give a false bias to the judgement, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society" [1.7]. This is certainly not the kind of admission that partisans in controversies are wont to make during the heat of the battle. But there is something special about this particular circumstance. On this occasion "all considerate and good men" must be induced by considerations such as philanthropy and patriotism to make their choice "by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good" [1.4]. Attention must be focused on the public good, and not on some less noble concern. Clearly Publius will ground his arguments for the proposed Constitution on the possibility of attaining the public good through its ratification and implementation.
Publius then makes a distinction between the "true interests" of the citizenry and the "many particular interests" which actually have come into play and which invoke "passions, and prejudices little favorable to the discovery of truth" [1.4]. And Publius insists that zeal for some particular and immediate interest easily leads to a sacrifice of the public good, which really constitutes the true interest of individuals, which they might be able to recognize, if they would but learn the virtue of moderation. Presumably passion perverts even the best of men. When that happens they fail to identify and seek their true interests and hence also the public good.
The conclusion to be drawn from Publius' consideration of the effects of the passion and interest on public deliberations of citizens is that those faced with issues of importance to mankind need to avoid an unenlightened zeal focused on their own immediate and particular interests. Instead, they need to develop an enlightened zeal for the public good and this can be done, he argues, by learning what Publius calls "a lesson of moderation" [1.7]. Publius thus begins his series of essays by attempting to teach his readers such a lesson, or by appealing to the already present if latent civility and moderation of his readers. According to Publius, "ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question" [1.8]. Partisan controversies tend to be dominated by such unruly passions. How can the true interests and the public good be served in public deliberations? Only when the virtues of candor and moderation dominate the deliberations of the citizens, and focus attention on the true interests rather than the immediate interest of the citizen.
Publius makes several references to zeal, both unenlightened and enlightened, as well as to moderation [see 1.7, 9, 10, 12; and cf. 10.10, 36; 20.23; 26.2, 6; 37.3; 38.5; 48.5; 85.4, 17, 18] in The Federalist. An appeal to the virtue of moderation begins both the first and second volume [37.3], and also ends the entire series [85.4, 17, 18]. An appeal to the virtue of moderation thus is made to frame the entire volume.
Such language seems to parallel that found in certain of David Hume's political essays.59 Take for example the following observations by Hume–a remarkably able Scottish historian, essayist and philosopher, and a favorite author of both Hamilton and Madison: "the ages of greatest public spirit [that is, public virtue or human excellence] are not always most eminent for private virtue. Good laws may beget order and moderation in government, where the manners and customs have instilled little humanity or justice into the tempers of men." After providing some historical illustrations of the condition he describes, Hume added these words:
Here, then, is a sufficient inducement to maintain, with the utmost ZEAL, in every free state, those forms and institutions, by which liberty is secured, the public good consulted, and the avarice or ambition of particular men restrained and punished. Nothing does more honour to human nature, than to see it susceptible of so noble a passion; as nothing can be a greater indication of meanness of heart in any man, than to see him destitute of it. A man who loves only himself, without regard to friendship and desert, merits the severest blame; and a man, who is only susceptible of friendship, without public spirit, or regard to the community, is deficient in the most material part of virtue.
Expressions like "public spirit," "regard for the community," and "public good" identify for both Hume and Publius the substance of the "habits of the heart," to use Alexis de Tocqueville's expression, requisite for free and republican government. From at least Aristotle the virtues have been seen as educated habits and hence the product of good laws. These habits are often called "public virtue" or "republican virtue." These are expressions which identify the complex of virtues which constitute the peculiar human excellence necessary for free government and for stable, secure, moderate republics. Unfortunately, zealots on public issues "kindle up the passions of their partizans, and under the pretence of the public good," Hume complained, these unenlightened zealots "pursue the interests and ends of their particular faction." Here we have the explanation for what Publius, seemingly following Hume, calls "that intolerant spirit which has, at all times, characterized political parties" [1.9]. Such partisans have not learned the lesson of moderation sufficiently to pursue the public good rather than their own narrow self-interest.
Publius, as we will see, is deeply concerned throughout The Federalist with the harmful effects of passions focused on immediate or particular interests, rather than what he describes as the desirable zeal for the public good, which grasps something of the true interest of the community. Publius, again seemingly following Hume, claims that violent passion and hence the unfortunate manifestation of zeal is often turned against the public good. But both Hume and Publius also see that there is an appropriate place for zeal. Passion cannot and should not be abated, but it must be enlightened and thereby directed at a worthy object, which turns out to be the public good. There are, for Publius, noble as well as base passions. Zeal is thus praiseworthy when it is "an enlightened zeal," that is, when it has a "regard for the community," or for what Publius often calls the "public good,"60 as opposed to narrowly "interested or ambitious views," which are usually associated with what he calls, again seemingly following David Hume, factions or parties.
Publius thus introduces his series of essays defending the proposed Constitution by calling for the virtues of moderation and candor when confronted with matters of grave public concern. He calls upon his readers to learn a "lesson of moderation" [1.7], especially in the matter then before them. The citizens of New York ought to manifest a "regard for the community"–a care for the public good–as they deliberate on the new Constitution. Any other course would lead to what he describes as "the general misfortune of mankind" [1.3]. "For my part," Hume wrote, "I shall always be more fond of promoting moderation than zeal; though perhaps the surest way of producing moderation in every party is to increase our zeal for the public. Let us therefore try, if it be possible, from the foregoing doctrine, to draw a lesson of moderation with regard to parties, into which our country is at present divided; at the same time, that we allow not this moderation to abate the industry and passion, with which every individual is bound to pursue the good of his country."61
Publius employs a rather distinctive vocabulary. Careful attention must be given to that language in order to grasp his meanings. Notice, for instance, the use of the terms "avarice" or "ambition," or "passion" and "interest," or "zeal" and "moderation." It is easy to slide over these seemingly harmless little words. In reading The Federalist that would be a mistake. And special attention must be given to terms like "party" or "parties" [1.8, 9]. The word "party," for example, is sometimes used interchangeably by both Publius and David Hume with the word "faction." Grasping the meaning of the analysis and arguments in The Federalist involves acquiring something of its vocabulary. The distinctive language used by Publius is the lens through which he saw his world, and it is possible to enter his world by giving attention to his special vocabulary. One may even come to employ his language as the lens through which to view both his world as well as our own.
The terms "party" and "faction," and certain related terms like "partisan," "partial," or "factious" have an important role in The Federalist.62 Parties or factions are evils; thought they may be unavoidable, they constitute the disease that the Framers sought to cure. That disease, they believed, infects republics [see 10.2, 7, 35-36; 14.1; 34.6; 37.17; 50.9; 61.4; 62.7]. These words identify for Publius the cause of a malady that actually infects all governments, but in republics it is the mortal disease that threatens the very foundations of free government. Without finding a cure for this disease, republican government is doomed, according to Publius. The Framers presumably sought and Publius boldly claims to have found the cure [10.1; 14.1; 61.4], remedy [62.7; 43.19] or antidote [14.1] for this otherwise fatal disease that subverts the liberties of republican or free government [see especially 9.1; 10.1ff.; 14.1]. The bold claim to have discovered a cure for the otherwise fatal disease of faction is set forth in The Federalist [see especially 10.35-35; 14.1], and that cure is said to rest upon a new science of politics that grounds the cure found in the proposed Constitution. Publius insists that "to form a safe and satisfactory judgment of the proper remedy [for a given disease in the body politic] it is necessary that we should be well acquainted with the extent and the malignity of the disease" [21.1].
Before the malady can be properly diagnosed and effectively treated, and a cure can be devised and begin to take effect, there is a lesson that the people must learn concerning the handling of irregular passions and interests, and hence of evils of faction. It is a lesson that the Philadelphia Convention had to learn in order to confront and also resolve the issues that faced those assembled to draft the new Constitution. The lesson is available to "all considerate and good men." It is, among other things, a lesson in the core of the republican virtue, as understood by the Founders–the virtues of moderation and candor. When learned, these educated habits or virtues help to bring the public good into focus. Moderation makes the necessary compromise and accommodation possible–it thereby habituates citizens to look beyond their immediate self-interest to the public good and hence to their own true interest. From the perspective of Publius, it is zeal for one's own immediate interest, or unenlightened self-interest, and the violent and destructive passions which attach to those interests, that generates both faction and factious leaders. The Founders faced the seemingly insurmountable problem of finding ways of constituting the community and structuring its public deliberations so that partisan differences do not make the pursuit of the public good impossible. The Convention was itself confronted with different interests and passions and hence with the mischiefs of faction. And yet it managed to rise above such things. To a remarkable degree, the delegates managed to resolve the problems imposed on their deliberations by partisan zeal.
The question of whether the proposed Constitution ought to be ratified became at once the ground for still another round of bitter quarreling between those zealous for the new Constitution and equally zealous anti-Constitution factions. Such controversies, Publius notes, cannot be resolved by looking at the apparent or presumed motivations of the partisans in a struggle, as interesting and even tantalizing as they might appear to be [1.4-6]. Since the question of whether the proposed Constitution ought to be ratified has itself been the occasion for fervent factional animosity, Publius finds it necessary to begin the defense of the work of the Founders by addressing to his readers a plea for the virtue of moderation. But it is this virtue of moderation which is what the most outstanding and also controversial features of the new Constitution designed to generate and thereby to pacify republican government by curing the mischiefs of faction.
Publius ends his introduction to The Federalist with a statement of the plan for the projected series. Attention to that plan is helpful in understanding Publius, and it will bring into view the rich tapestry of argumentation, illustration, and careful reasoning employed by Publius in both explaining and defending the proposed Constitution.
[Historical Note: By the time that Publius had begun publication, Congress had read the proposed Constitution (on September 20, 1787), transmitted it to the state legislatures (on September 20), and (on September 26-28) Congress debated it and also the ratification procedure proposed by the Philadelphia Convention. Without indicating approval, Congress sent it on to the states. In addition, the legislatures of Pennsylvania (on September 28), Connecticut (on October 17), Massachusetts (October 25), and Georgia (October 26) had called conventions for the purpose of considering ratification. Delegates to these conventions were elected in Pennsylvania on November 6; in Connecticut on November 12; in Massachusetts on November 19-January 7; and in Georgia on December 4-5.
But those opposed to the Constitution in New York were clearly in the majority. They were led by George Clinton, popular governor of the state, with support from Robert Yates and John Lansing. Both Yates and Lansing had with Hamilton initially represented New York at the Philadelphia Convention. And both Yates and Lansing were appalled by what they saw going on in Philadelphia and eventually withdrew.
Those in New York, led by such powerful and influential figures who were in opposition to the proposed Constitution, may not have been sufficiently certain, even though they were in the majority, that they could win an early defeat of the proposed Constitution if they brought the matter to an early decision. Perhaps they also hoped that while they stalled on the question of ratification a movement for a second convention would gain support and thus make the issue of the ratification of the Constitution moot. And they may have also feared the consequences of being the first state to reject the Constitution, especially since ratification went smoothly in the first states that dealt with the issue.
And Hamilton and other supporters of the Constitution in New York also were slow to move toward a decision on ratification. They wanted time, perhaps in the hope that they could sway voters (and potential or actual delegates) to their side. And by postponing consideration of the Constitution, they also felt that by avoiding an early defeat in New York they could thereby avoid the adverse effect on the ratification efforts going on in other states. Hence both sides in the New York ratification debate were reluctant to risk forcing an early decision. This gave Hamilton time to produce, with the aid of Madison and Jay, The Federalist.
When the Constitution was made available to the public, its opponents soon began their attacks and this was especially the case in New York. On September 27, 1787 Cato published the first of seven letters attacking the proposed Constitution–the series by Cato ended on January 3, 1788. Samuel Bryan, calling himself Centinel, began the first of eighteen essays critical of the proposed Constitution on October 5, 1787, and Brutus began his important series of criticisms of the Constitution on October 18, 1787.]
II. THE UNION ARGUMENT
The bulk of The Federalist is divided between (1) an argument for the necessity of a more perfect Union of the states, a truly United States, and (2) the argument that the Union proposed in the Constitution conforms sufficiently to republican principles to warrant the adoption of the new plan or is genuinely republican (when those principles are properly considered in the light of the new understanding of Publius of what constitutes a genuine republic). We can thus divide The Federalist, more or less, between these two main parts, that is, between what I will call the Union Argument, which comprises numbers 2 through 36; and the Republican Argument, which comprises numbers 37 through 83.
Part of the Union Argument is devoted, according to Publius, to showing "the utility of UNION to your political prosperity" [1.16]. Publius argues at length that the Union, under the Articles of Confederation, is inadequate to the needs of the American people, which include political and commercial prosperity. The Constitution was designed among other things to deal with those inadequacies.
A. THE UTILITY OF UNION TO POLITICAL PROSPERITY
Publius begins his defense of the Constitution by drawing attention to the low horizon of fear of violence from the defects in the existing regime–that part of the Federalist is an argument from expediency or necessity in which an effort is made to teach the readers to look to their own passions and accompanying interests. When the readers consult their own estimate of their self-interest in a secure Union, they will find sufficient reasons for favoring the Constitution. A candid and prudent attention to self-interest will show that something like the proposed Constitution is imperative. With that matter out of the way, Publius can then begin to address an argument for the appropriateness of the Constitution to thoughtful men–those endowed with a measure of honor and virtue, and at that point in his argument he begins to address the question of whether the proposed Constitution is in conformity with republican principles.
1. THE FUTURE PROSPERITY OF AMERICA DEPENDS UPON A FIRM UNION
The Federalist No. 2; Independent Journal, October 31, 1787 - Jay
POLITICAL PROSPERITY AND THE BLESSINGS OF UNION
Publius calls attention to what he considers the rather obvious failure of the Articles of Confederation to provide an adequate Union of the states [2.3, 9]. The situation was grave enough that it eventually led to the calling of the Philadelphia Convention. The government, under the Articles, lacked adequate power to provide the necessary political prosperity that a free people demanded. "Prosperity" is called "the great object of the people" [2.19]. No one will resist prosperity. Publius attempts to link what he calls the "blessings of Union" [2.9], which are shown to include prosperity, with "requisite powers" [2.2] in order to make prosperity possible [2.3, 19]. The great danger to the Union, and hence to prosperity, stems from the possibility of disunion. America is now threatened, Publius warns, with the prospect of being divided into "separate confederacies" [2.3] or "distinct confederacies or sovereignties" [2.4].
Under the proposed Constitution, how would a powerful Union contribute to the future prosperity of the American people? Publius begins to set forth arguments attempting to answer this question by showing what it would take to make the Union more adequate to the achievement of prosperity of America. He thus strives to demonstrate "that the prosperity of the people of America depended on their continuing firmly united" [2.3]. That was what, he claims, every Congress really had in mind: it was also one of the primary reasons for the calling of the Philadelphia Convention, as well as "the great object of the plan which the convention has advised them [that is, the people] to adopt" [2.19].
Publius' argument begins with one of the few really explicit references to what is called social contract doctrine to be found in The Federalist, though that doctrine can be assumed to stand in one way or another behind virtually all American political thought of the time. Different versions of the social contract doctrine had been put forward earlier in England by John Locke and Thomas Hobbes. Less sophisticated and more popularized versions of that doctrine had become the basis for the standard justifications for government in America. Thomas Jefferson, for example, used the language of the social contract doctrine in the "Declaration of Independence." And Americans are most familiar with Jefferson's version of the social contract doctrine.
Neither the concrete language of the Constitution, nor the bulk of the argumentation in The Federalist seems to relate directly to theorizing about a pre-political condition–a "state of nature"–or a notion of a hypothetical covenant or covenants between the people which authorizes government and protects certain primitive natural rights. Such a contract, consent to which may in part be tacit, serves as a justification, as well as the ground for the limitation, of government, since some rights are, in Jefferson's language, simply unalienable, that is, cannot alienated to an agent such as government. Still, some version of the social contract doctrine seems to have provided background assumptions for the thought of the Framers, and signs that this is so turn up here and there in The Federalist.
Publius seems to take it for granted that the legitimacy of government flows from or rests upon a contract to which at least tacit consent has been given, through which mankind seeks to secure certain rights or ends. The particular existing regime ought then to be seen as having been instituted, with the consent of the people, for the purpose of securing certain ends. In the hands of the Framers the social contract doctrine is given a republican twist and flavor. For example, Publius argues that "we have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is this 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 late 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" [45.2].
Publius also puts social contract assumptions to work in the following statement: "Nothing is more certain," according to Publius, "than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers" [2.2].
We can begin to understand what social contract theories attempt to do, if we imagine how it would be without laws–understood as legal or moral rules–that restrain the range of possible actions by individuals. Obviously, such an imaginary or hypothetical "state of nature" or pre-political condition would be at least inconvenient and potentially if not actually warlike, since it would lack both the restraint of moral and legal rules, or even a restraint provided by a despotic public authority. With that in mind, we now have the rudiments of an explanation of why mankind would (and should) consent to laws that limit natural freedom. And we can begin to figure out which ends might be worthy of the effort to attain them by more explicit agreements or covenants setting forth limitations on the natural liberties of mankind. In order to achieve those objects or ends, we would have to grant to the government certain powers.
In social contract theory, it is common to say that people have, in principle and tacitly, if not overtly and in actual fact, ceded some of their natural liberties to government in order to provide for a civil society which aims at the public good by providing safety from war between isolated individuals–a society in which they can reasonably hope to enjoy a measure of safety, prosperity, security and also civil liberty. They have given up or alienated the full range of liberties they might enjoy if there were no laws in order to enjoy civil liberty, that is, to protect, among other thing, their unalienable rights. Social contract theory thus functions as a way of limiting and government. The reason is that government derives its just powers from the people through a hypothetical agreement, social contract or covenant. Individuals thus federate or covenant to create and empower government to protect their own most fundamental rights or interests. In this theory the people are thus said to cede to government only those powers that are necessary to yield a civil society, those powers that make it possible for government to protect life, liberty and property, to protect the properties of man understood as an unalienable right to life and liberty, as well as the right to the objects with which personality is mixed through labor–these constitute the more alienable properties of man. Here we have what are understood as natural rights. Something like this is taken for granted by Publius and those who fashioned the Constitution.
Publius' brief and somewhat enigmatic reference to social contract doctrine raises the question of "whether it would conduce more to the interest of the people of America, that they should, to all general purposes, be one nation, under one federal government, than that they should divide themselves into separate confederacies..." [2.2]. This would seem to be a more specific application of the question raised by Publius in Federalist 1: "Whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force" [1.2]. Publius strives to convince his readers that a firm Union is essential to the prosperity of the American people. That has been what he calls "a received and uncontradicted opinion" [2.3]. Unfortunately, it is no longer accepted by everyone, since "politicians now appear, who insist that this opinion is erroneous" [2.3]. These "politicians"63 look, instead, for "safety and happiness...in a division of the States into distinct confederacies or sovereignties" [2.3]. In his effort to show that America needs to be united, Publius is pleased to report that the gifts of Providence to the American people include their being "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" [2.6], and so forth. In no real way is America, or its people, intended by Providence [2.5, 6, 7] to be divided into "detached and distant territories" [2.5] or separated into distinct nations.
The threat of disunion led to the Philadelphia Convention, which was "composed of men who possessed the confidence of the people, many of whom had become highly distinguished by their patriotism, virtue, and wisdom" [2.11]. They were men who, "without having been awed by power, or influenced by any passions except love for their country," Publius claims, were appropriately fitted to craft the plan for a more perfect Union [2.12]. In their deliberations they did not pursue their own immediate or personal interests, but sought only the "true interests of their country" [2.16]. In other words, they manifest an enlightened zeal for the true interests of the citizens of the United States.
Publius then raises the prospect of the failure of the plan proposed by the Philadelphia Convention [1.18-19]. Without a new and improved foundation, America may well become disunited and end up with a number of smaller confederacies or competing sovereignties. If we look ahead to Federalist 10, we will notice that Publius is there addressing the question of domestic faction and insurrection. But before that question can be taken up, Publius inquires into the problems faced by a divided America, which can be described as an analogue to domestic faction and insurrection, that is, foreign faction and war. Or Federalist 10 can be seen as addressing the question of how to deal with the internal or domestic equivalent of the anarchy, competition and the threat of war among the nations understood as analogous to warring or potentially hostile factions.
[Historical Note: On the day this letter was first published, the legislature of Virginia called for a ratification convention.]
2. THE DANGERS TO THE UNION FROM FOREIGN INTRIGUES AND WARS
The Federalist No. 3; Independent Journal, November 3, 1787 - Jay
A NATIONAL GOVERNMENT AS A SAFEGUARD AGAINST JUST WARS
Publius begins this essay by addressing the question of the safety of the American people [2.3], defined as "security for the preservation of peace and tranquillity, as well as against danger from foreign arms and influence, as from dangers of the like kind arising from domestic causes" [3.4], or what will be called "domestic faction and insurrection" [9.1; cf. 10.1ff.]. Publius mentions the need for insuring an effective defense against hostile forces from abroad bent on harming the interests of the American people. He is also interested in showing how a national government would be able to find ways of avoiding bellicosity by Americans against others and thereby dragging the United States into unnecessary wars. His theme in this essay is peace and tranquillity for the Union. Security against those kinds of evils, he insists, requires a properly constituted Union. For "under an efficient national government, the American people will have available the best security that can be devised against hostilities from abroad" [3.4].
Publius' position is that government under the Articles was entirely inadequate to the defense of the Union from foreign threats and intrigues. Therefore, the American people are faced with two alternatives: (1) the choice to fashion a "national government" [3.9, 11, 12, 17], or what Publius also calls "an efficient national government" [3.4, 8], or "one national government" [3.10], or (2) they have a choice to form or allow to form a "division" [2.3; 5.13] of "disunion" [6.1, 22] into "three or four confederacies," or even just a return to "thirteen States" [3.9] each acting in foreign relations on their own.
Publius considers the advantages of "a strong united nation" [3.18] or "efficient national government" [3.4, 8] in dealing with what he calls "the just causes of war" [3.6]. In Federalist 4 he examines the question of the efficacy of creating a national government that could deal efficiently with the unjust causes of war. What are the just causes of war? They are described by Publius as "violations of treaties or direct violence" [3.6]. A disunited America would invite violations of treaties, and it would also have no real means for dealing with such provocations. America needs the efficient national government as set out in the proposed Constitution. An efficient national government will be better able to reach an accommodation with belligerents, and to settle matters peacefully [3.17]. It will also tend to be staffed with men "more temperate and cool," and it will also be ready "to act advisedly than the offending State" [3.17] in reaching an amiable and just settlement in a dispute. The reason is that "when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it" [3.8]. The end result of having adopted the new plan of government is that
the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us [3.8].
[Historical Note: On November 1, 1787–just prior to the publication of this letter–the legislature of New Jersey called for a convention to consider ratification of the proposed Constitution. Delegates were elected on November 27-December 1, 1787.]
The Federalist No. 4; Independent Journal, November 7 - Jay
A NATIONAL GOVERNMENT AS A SAFEGUARD AGAINST UNJUST WARS
Publius now takes up the question of whether a national government would be in a better position to protect the safety of the American people from other than "just" causes of war. Once again he sets out, as the alternatives before the American people, the choice between (1) one national government and hence a Union such as proposed in the new plan, or (2) the state governments acting separately or "the proposed little confederacies" [4.1]. He assumes that America will be either "firmly united under one national government, or split into a number of confederacies" [4.17]. His efforts are directed at showing something of the dangers from an "America divided into thirteen or, if you please, into three or four independent governments" [4.15].
A division of the Union is traced by Publius to those elements in the nature of man that lead to insult, hostility, violence and war between nations. A disunited America would only invite war and would be unfit to protect itself when forced to do so. Therefore,
as the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one government is not, relative to the object in question, more competent than any other given number whatever [4.11].
Could America actually be in danger of foreign aggression and war? Publius answers in the affirmative. "It is too true, however disgraceful it may be to human nature," according to Publius, "that nations in general will make war whenever they have a prospect of getting anything by it" [4.3]. Here we have an indication of the way in which Publius understands human things. As we will see elsewhere in The Federalist, the argument for the proposed Constitution, as well as the plan itself, rests on an assessment of human nature. Nations behave in a disorderly and hostile way with each other because men are moved by violent and disorderly passions in seeking not the long term interests of the whole–the commonweal or public good–but their immediate interests. Publius describes something of this at work among monarchs who
will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans [4.3].
And then he shows that nations are moved by different, but not always more noble, motives for engaging in hostilities with their neighbors.
Publius is then ready to say that "the people of America are aware that inducements to war may arise" out of commercial hostilities or other inducements
not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it [4.10].
The Federalist No. 5; Independent Journal, November 10, 1787 - Jay
THE THREAT TO A DIVIDED AMERICA FROM FOREIGN ALLIANCES
As in the preceding essay, Publius begins with the assumption that the alternatives facing the American people are either a strong, united national government or division into a number of separate distinct nations [see 5.4, 5, 10]. But now, instead of focusing on the potential dangers to the American people from hostility and war with foreign nations, as he did in the preceding number, Publius paints a picture of a disunited American, in which the Union is divided into distinct nations each having its own government and each having different commercial interests.
"Should the people of America divide themselves into three or four nations" [5.4] they would inevitably become rivals, and this would likely lead to war between these distinct, competing nations. Publius offers a number of reasons for this opinion. For one thing, these distinct nations could not possibly "remain on an equal footing in point of strength" [5.5], and their "different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations" [5.10].
The history of weakening confederacies set the probable pattern. Publius concludes that "it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides" [5.11]. And in the end the distinct American nations that will inevitably result from the collapse of the confederacy will each turn to alliances with other nations (probably European) rather than seek their security by alliances among themselves [5.11]. This would open the door to the "hostilities and improper interference of foreign nations" [5.13] in the affairs of the American people; it would tend to lead them into a situation in which, "instead of being 'joined in affection' and free from all apprehension of different 'interests,' envy and jealousy would soon extinguish confidence and affection, and the partial interest of each confederacy, instead of the general interest of American, would be the only objects of their policy and pursuits" [5.4].
[Historical Note: On November 10, 1787, the legislature of Delaware called for a convention to consider ratification of the proposed Constitution. Delegates were elected on November 26, 1787.]
The Federalist No. 6; Independent Journal, November 14, 1787 - Hamilton
THE INTERNAL OR DOMESTIC EVILS OF DISUNION
Publius addresses the question of effects of disunion on the internal relations of the distinct nations which would result from the splitting of America into three or four smaller confederacies or allowing the thirteen states to conduct their affairs without a firm Union [6.1]. He considers this division of the Union an even more alarming threat than that of foreign interference from Europe. He offers a rather lurid description of the evils that could be expected to follow disunion into a number of petty confederacies or from the continuation of the existing weak Confederation. Government under the Articles of Confederation is quite unfit to deal effectively with the problem of what he calls "domestic factions and convulsions" [6.1]. The rapacious qualities of ambitious men are credited by Publius with threatening the American people with various intrigues and even eventually with civil war–with wars between the distinct nations into which, it is frequently alleged by Publius, some "politicians" want American divided [cf. 2.3]. Once again he claims that there are those who are anxious to see America divided into several different confederations.
Publius fashions the argument by linking what was clearly the received opinion among the Framers about human nature–one which was shared generally by thoughtful Americans–to the spectacle of a disunited America. In doing so he rather forcefully reminds his readers that "men are ambitious, vindictive, and rapacious" [6.2]. This kind of language has led some to see a dark and unsavory view of man at work in The Federalist. Here we see the grim realism of the Founders about man. What is at work in this essay is an understanding of human things which is later manifest in the yearning to find effective ways of overcoming the evil consequences of certain of the less than noble motivations that move human affairs. Publius advances the theory that juxtaposing low motives provides a way of controlling them. Ambition can at times be made to function as a check on ambition [51.6], or avarice as a check on avarice [72.5].
A disunited America will fall prey to the evils of either warring domestic factions, if a semblance of the union remains, or the convulsions of hostility and war between the new nations that must be formed if the Union simply collapses.
A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence would be to forget that men are ambitious, vindictive, and rapacious [6.2].
Publius thus appeals to history–to what he calls "the uniform course of human events" [6.2]–for a demonstration that his judgment on this matter is correct.
Then he distinguishes between the "causes of hostility among nations" that "which have a general and almost constant operation" [6.3], and those that depend more upon particular circumstances. In the first category he places "the love of power or the desire of preeminence and dominion–the jealousy of power, or the desire of equality and safety" [6.3], and in the second category he places "rivalships and competitions of commerce between commercial nations" [6.4]. But there are still other sources of hostility among nations. Among these are the ones "which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members" [6.5]. Publius provides a number of exemplars of this class, citing historical figures [6.5-8], and then applying the point to recent events in America [6.9-12].
Since there was a literature in which it was held that commerce might have something of a pacific effect on the passions of man,64 Publius next examines that question. And he concludes that commerce, whatever else it may do, in this instance only changes "the objects of war" [6.13]. Why is that? "Is not the love of wealth," asks Publius, "as domineering and enterprising a passion as that of power or glory?" [6.13]. In monarchies and aristocracies the search for power and the thirst for glory were dominating passions of the rulers. But with the decline of those regimes and the rise of more democratic regimes, especially when coupled to commercial ventures, modern politics took its rise. But is the new politics that centers more on the pursuit of wealth through commerce really any more peaceful than the older order? Publius denies that it is.
Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? [6.13].
Again, Publius thinks that history, which he also calls "experience, the least fallible guide of human opinions," supports his view [6.13]. And then he cites historical exemplars [6.14-21].
The Framers, and also Publius defending their work, appealed to history in several senses. Their concern with history flowed from being versed in the history of ancient Greece and Rome, of various confederations and republics, and of England at least since Elizabethan times. They also thought historically. They used references to history to support or illustrate their arguments. A considerable portion of The Federalist consists of historical illustrations that are intended to support arguments. In the first three weeks of the Philadelphia Convention, the delegates buttressed their arguments with historical examples at least twenty-three times, not counting references drawn from British or colonial or recent American history. Some of these illustrations were presented in the form of lectures which lasted for hours. They also saw the past, especially the history of British liberty, including the common law and British constitutional practice, as instructive for the tasks at hand, on more than twenty separate occasions. The delegates were also acutely conscious of history in another sense. They were very much aware of their own place in history. John Adams to Richard Henry Lee in 1777:
You and I, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have ever enjoyed an opportunity of making election of government... for themselves or their children.65
And Madison, during the convention, "observed that it was more than probable we were now digesting a plan which in its operation wd. decide for ever the fate of Republican Govt," and therefor they ought "to provide every guard to liberty that its preservation cd require, but be equally careful to supply the defects which our own experience had particularly pointed out."66
And hence it is not surprising that Publius warns against "the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses, and evils incident to society in every shape" [6.21]. He admonishes his readers to adopt instead, as a "political maxim," the opinion that we "are yet remote from the happy empire of perfect wisdom and perfect virtue" [6.21]. Hence we should not expect the disunited states to deal with each other peacefully [6.22], but to be rivals. And the implication is that Americans need a more perfect Union; perhaps the one that would be constituted by the plan now before them for their consideration.
The Federalist No. 7; Independent Journal, November 17, 1787 - Hamilton
THE EVILS OF DISUNION continued
Publius continues his treatment of the potential rivalry, quarrels and hostilities between the states or between partial confederacies formed upon the dissolution of the Union. He argues that the inducements even to eventually make war upon each other would be at least the same "which have, at different times, deluged in blood all the nations of the world" [7.1]. One simply cannot anticipate that a divided America will be any less prone to conflict and confrontation than has Europe. He justifies that conclusion by pointing out that Americans had already "had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed" [7.1]. Then he paints a grim portrait of the potential hostilities, and even the possibility of war, that might be expected to follow the collapse or further weakening of the existing Union, or of its continuation as a simple defensive league presumably in place to protect Americans from European aggression.
He examines the kinds of disputes that he thinks are likely to disturb the tranquillity of the American, if it turns out that America is "not to be connected at all, or only the feeble tie of a simple league, offensive or defensive," and not a firm Union with a single, efficient national government [7.16]. First, he examines territorial disputes between the states and finds them to be a fertile ground of hostility [see 7.2-6]. Then he looks into "the competitions of commerce" [see 7.7-9], and finds in the rivalry of trading nations another source of conflict and war. He holds that each state or partial confederacy "would pursue a system of commercial policy peculiar to itself" [7.7]. The "unbridled spirit of commerce," according to Publius, "characterizes the commercial part of America" [7.8], and it opens up the possibility for hostility and aggression upon what he calls the "dismemberment of the Confederacy" [7.3].
Publius also argues that the apportionment of the public debt of the old Union would occasion disputes between the dismembered parts [7.10-13]. And finally "laws in violation of private contracts" passed by the states, since these constitute in the eye of the offended "aggressions on the rights of those States whose citizens are injured by them," and they "may be considered as another probable source of hostility" [7.15].
Publius concludes that a disunited America or a feeble league would lead to entanglements "in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the part into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of all" [7.16].
The Federalist No. 8; New-York Packet, November 20, 1787 - Hamilton
THE DANGERS OF WAR BETWEEN DISUNITED AMERICAN STATES
According to Publius, if America were to become disunited and the parts remain separated, or if the Union were to be dissolved into two or three petty confederacies, then we would find ourselves in something very much like "the predicament of the continental powers of Europe–our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other" [8.13]. The parts of the now disunited Union would find it necessary to fashion what he calls "military establishments" [8.2], meaning a standing army available for defensive or offensive purposes.67
Without military and naval preparations, including standing armies, fortifications and the like, a disunited America would be vulnerable to the most destructive kinds of wars. They would find it very difficult to defend themselves with armies made up of irregulars [8.2-3]. Disunion would force the separate parts–either the separate states or petty confederacies–to maintain standing armies [8.5], or what he calls "military establishments." Every effort would have to be made by each of the parts to protect itself against the dangers posed by the other parts.
Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights [8.4].
The Federalist begins with references to the "safety and welfare" [1.1] or the "safety and happiness" that will result if the Union is secured and strengthened. The justification for the proposed Constitution is made to rest on the failure of the Articles to provide for the essential safety of the Union, and then on the capacity of the new plan to correct those weaknesses. The choice for the Constitution is made to rest on a demonstration of the necessity for providing a more secure Union in order to achieve safety and welfare, happiness, and political prosperity.
3. THE DANGERS TO THE UNION FROM THE DISEASE OF DOMESTIC FACTION AND INSURRECTION
In this section there are, for the first time, signs of arguments for the Constitution that begin to rise above the level of utility of Union, or of naked necessity, to republican principle. These arguments, especially those found in Federalist 9, 10 and 14, will anticipate somewhat the kinds of considerations put forth in the second half of this book, where the question of the conformity of the proposed Constitution with republican principles is taken up.
The Federalist No. 9; Independent Journal, November 21, 1787 - Hamilton
A FIRM UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION
Between Federalist 3 and 7 there is a subtle shift in the line of the argument being advanced by Publius. Instead of stressing the danger to America from foreign intrigues or war as a consequence of a weakened or abandoned Union, Publius shifts to the domestic scene. Questions are raised concerning of the danger from "domestic faction and insurrection" [9.1]. These dangers are analogous to the foreign threats, and so there is a development of the argument and also a coherence between the reasoning advanced in the earlier parts of The Federalist and the argument to be set forth by Publius in No. 10. Federalist 9 functions as an introduction to Publius' famous treatment of the mischiefs of domestic faction.
The first portion of this essay contains a bleak depiction of the record of republican governments in the past. Publius informs his readers that
It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy [9.1].
The reason for this is that small republics are exposed to the consequences of terrible factional (or party) conflicts. Petty republics either dissolve into anarchy, or they turn to tyranny; they are damaged by the insurrection of minor factions, or by majorities bent on pursuing their own interests at the expense of other factions, and hence also without concern for justice and the common good, in which case they sacrifice liberty by oppressing minorities. Petty republics tend to break into the anarchy of civil war because of the factious temper of their citizens. Hence they are caught between despotism, on the one hand, and anarchy and civil war on the other. In either case liberty was jettisoned in the partisan struggle between warring factions.
A remedy for the problem of faction had been worked out in classical republican theory. Democracies were possible if, and only if, certain virtues were present in the hearts and minds of the citizens, that is, a certain type and measure of human excellence was prevalent in the community. These virtues included frugality, simplicity, temperance, a fierce willingness to defend the community, and, above all, a willingness to place the common good above immediate interests or private considerations. Such a set of virtues was known variously as republican virtue, public virtue, or public spiritedness, or even as patriotism. Republican virtue can, perhaps, be best understood as a willingness on the part of the citizen to sacrifice immediate interests for the common good.
In the traditional understanding of republican government, for a republic to maintain the necessary virtue, it had to be small, agrarian, composed of citizens who were approximately equal in wealth, without luxury, and who also shared the same religious beliefs, language and traditions. The point of all these presumably necessary conditions was to prevent, as much as possible, the emergence of faction and insurrection. And also to prevent as far as possible the erosion of the virtues necessary for the preservation and happiness of the regime. These ends were to be accomplished by preventing as much as possible the emergence of different and competing opinions and interests. In such a regime, commerce should be discouraged or prevented because it generates luxury, lassitude and gross inequality, and it makes room for avarice and ambition. In this account, wealth and luxury tends to feed faction and generate civil war. Luxury also weakens the resolve of citizens to sacrifice for the common good–the virtue necessary for the survival of such a regime. The reason for these restrictions was to prevent, as far as possible, the existence of faction and the resulting civil wars. In such situations a kind of democracy was possible.
Plato's Laws contains a description of just such an imaginary community of equality and concord. It was to be limited to a mere 5,040 citizens, who would enjoy a rough equality, while sharing the same opinions on the decisive issues.68University of Chicago Press, 1983), 14:157-169 at 158 and note #1 at 168. There is a fine essay examining in detail these neglected papers by Colleen A. Sheehan, "The Politics of Public Opinion: James Madison's 'Notes on Government'," William and Mary Quarterly 3rd Ser., 49/4 (October 1992): 609-627. Sheehan notes that Madison cites Plato's argument which is actually found in the Laws, with Montesquieu's attribution of this argument, "which strictly limits the number of citizens in a republic to 5,040," to the Republic. Ibid., 612. But she does not mention that Montesquieu got the source for Plato's discussion of the ideal size for a regime wrong. And it was to be located, if at all possible, in a remote place not close to a port or accessible to foreigners. The reason for this was to prevent the contamination of foreign ideas which might otherwise begin to divide the city into factions, and eventually yield insurrection and civil war.
Publius, as has been noted, stressed prosperity as a reason for fashioning a firm Union, and clearly saw such affluence as a desirable consequence of the new republic. And hence The Federalist pictures a new regime grounded in the proposed Constitution that will promote and facilitate commerce. Publius makes prosperity, at least in part, the product of a rich and extensive commerce, which the new Union will foster. But in the older understanding of republics, going back as we have seen at least to Plato's Laws, commerce is feared because it leads to luxury and fosters faction, both of which are damaging to the virtues necessary to sustain a republican regime. The problem that faced the Founders was finding some way of insuring continued material prosperity, which meant cultivating commerce, and allowing thereby the existence of luxury, while at the same time retaining liberty and remaining genuinely republican. There have been those who denied, or at least doubted, that a republic could long remain free and commercial at the same time. The introduction of commerce, from the older republican perspective would undercut the virtues necessary to sustain a free government. Elements of that older understanding of republican theory persisted among the anti-Constitution party. It was the nationalists in the Philadelphia Convention who turned to the idea of a extensive commercial republic. And some of the critics of the proposed Constitution doubted that such a thing was possible or, if possible, really desirable.
"From the disorders that disfigure the annals of those republics [of antiquity] the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of liberty itself. They have," according to Publius, "decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans" [9.2]. His answer to these men of little faith was the following: "Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms" [9.2]. But he is also willing to admit that the portraits of the problems that afflict republican government sketched by those unfriendly to liberty have been "too just copies of the originals from which they were taken" [9.3]. "If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends of liberty would have been obliged to abandon the cause of that species of government as indefensible" [9.3].
Publius argues that the evils of what he calls "domestic faction and insurrection"–the well-known defects of republican governments–can be controlled or abated by the wise use of discoveries made available through what he calls "the science of politics" [9.3]. Some of these scientific discoveries have made their advancement rather recently. These discoveries in political science provide the means for the preservation of the Union, while overcoming the weaknesses commonly associated with both republics and alliances, leagues, or federations. A novel application of certain republican principles makes possible an extended, or enlarged and flourishing commercial republic [9.4]. By providing a complex structure to the republic, provision could be made for diminishing the evils that previously had plagued free government.
Without certain discoveries in the "science of politics," even "the enlightened friends of liberty would have been obliged to abandon that species of government as indefensible" [9.3]. Publius thus claims that certain discoveries have been made (and incorporated into the proposed Constitution) that work to alleviate some of the most pressing evils that had previously afflicted free governments. He lists the various principles, or at least some of them. They constitute his science of politics, and as such they form a portion of the wisdom available to the enlightened friends of liberty. These include the following:
 "The regular distribution of power into distinct departments;
 the institution of legislative balances and checks;
 the institution of courts composed of judges holding their offices during good behavior;
 the representation of the people in the legislature by deputies of their own election" [9.4].
Publius maintains that these "are the means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided" [9.4]. He then adds an additional discovery in the science of politics–one actually made visible in the Philadelphia Convention by James Madison–"for the amelioration of popular systems of government" [9.4].
Publius admits that this novel discovery may appear to some to be an unsound institutional arrangement. It has, he grants, "been made the foundation of an objection to the new Constitution" [9.4]. The remainder of Federalist 9 is devoted to responding to what Publius contends are confusions in the objection. But what exactly is this novel principle of political science? It is "the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State, or to the consolidation of several smaller States into one great Confederacy" [9.4].
It is at this point that we see in The Federalist the introduction of the idea that the more perfect Union promised by the Founders will be an extended as well as commercial republic. Publius argues in Federalist 10 that by enlarging the orbit of republican government, part of the cure for the mischiefs of faction will have been found. Extending the size of the republic increases the number of factions and hence reduces the possibility of any of them oppressing the rest. It also makes possible, through the use of representation, the moderation of the violence of factions, as well as reducing the possibility of any single one, or easily formed combination, coming into domination.
Classical republican theory permitted and even encouraged federations, confederations or leagues (the terms were then essentially interchangeable) of small republics for defensive and offensive purposes. Such leagues might even set up a permanent congress to conduct the business of its members. But Publius has already set out an argument that amounts to a radical departure from the traditional understanding of certain notions about the limits of republican government. He, therefore, responds to an objection that relies more or less on the popular understanding and acceptance of classical republican theory, which held that republics must be small. And he does that by trying to show that the idea of enlarging the orbit of republican government has merely the appearance of novelty, but "is in reality not a new idea" [9.5]. He turns to examples of past federations of petty republics for support for his claim. "The utility of a Confederacy, as well to suppress faction and to guard the internal tranquility of States, as to increase their external force and security, is in reality not a new idea" [9.5], he claims. It is true that classical republican doctrine permitted defensive alliances or leagues to increase the external force and security of petty republics. Whether republican theory saw federation as a means of suppressing domestic faction and insurrection is not quite clear. Publius, at least at this point in The Federalist, thus skirts the crucial issues. For one thing, the Union under the new national government, quite unlike the one under the old Articles of Confederation, will not be merely a league of sovereign states, but will be a single, efficient national government.69
The adversaries to the Constitution had, according to Publius, cited Charles Louis de Secondat, Baron de Montesquieu's The Spirit of the Laws [9.5]. That famous book contains traces of the classical republican view that republics must be small in order to preserve the necessary virtues. In an effort to provide evidence for his assertion that an extended republic was not a violation of republican principles, but that enlarging the orbit of republican government "has received the sanction of the most approved writers on the subjects of politics" [9.5], Publius must deal with Montesquieu's language, some of which was being used against the new Constitution. The remainder of the essay is thus an effort to deflect the criticism of enlarging the orbit of republican government by trying to show that some semblance of the idea might be read into a few remarks found in Montesquieu's famous book [9.6-14]. It would not be entirely prudent for Publius to admit that the extent of the general or national government that is to result from ratification of the new Constitution would be unprecedented in fact as well as theory.
The one telling blow that Publius lands on the argument of the critics of an extended republic is his acknowledgment that, though Montesquieu does in some places argue for the necessity of small republics, the critics fail to notice that the size that he had in mind for petty republics had already been surpassed "in almost every one of the States" [9.5].70 Publius further supports his position with the caustic remark that if we take Montesquieu's
ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt [9.6].
After quoting passages from Montesquieu's The Spirit of the Laws in which confederations are recommended for small republics, Publius describes those passages as containing "a luminous abridgement of the principle arguments in favor of the Union" [9.15]. That statement is true as far as it goes. When Publius claims that Montesquieu's book contains language to "illustrate the tendency of the Union to repress domestic faction and insurrection" [9.15], he is on much less solid ground. But in the situation in which he found himself he had good reason to obscure just how novel the new plan of government really was in some of its arrangements.
At this point in his argument, Publius simply drops the subject of the extended republic. He takes up, in its place, the distinction commonly made by the adversaries of the new Constitution between a confederacy and a consolidation of the states. Some of the critics had complained bitterly that what was being proposed was a consolidation of the states, and not a genuine federation at all, but stressed repeatedly that it amounted to or would result in a consolidation of the states, which would end what they understood to be a federation or league of sovereign states. On the other hand, some elements of the anti-Constitution faction wished to preserve the Union as a federation or a simple defensive league, and not as consolidation, hence they opposed a national government. But enlarging the orbit of republican government was not what previous republican theorists had in mind by the traditional league of sovereign states; what Publius was really defending was a new national government or what the critics of the Constitution labelled a consolidation.
Leagues, confederations or federations, until Publius gave the word "federal" a radically new meaning, are said to have their authority restricted to "the members in their collective capacity, without reaching to the individuals of whom they are composed" [9.16]. That would describe the government under the Articles of Confederation, but not the proposed new national government. Publius brushes aside that complaint by labelling the distinction arbitrary, and by charging that
it will be clearly shown, in the course of this investigation [in later parts of The Federalist], that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in government [9.16].
Publius ends this essay by suggesting that the expression "confederate republic" may be the way out of the impasse generated by the quarrel over whether the Framers have crafted an improved federal Union or have managed a consolidation of the states. He argues that the federal element is retained in the proposed national government, as "long as the separate organization of the member be not abolished, so long as it exists, by a constitutional necessity, for local purposes," and so forth. And since the proposed Constitution does not actually abolish the states, but allows them a place in the Union, at least for certain purposes, even though in subordination to the new general authority, we have a federal government, at least from his point of view. We will see that, when this question again is taken up, Publius eventually grants that what was done by the Framers was to constitute a government that is partly national and partly federal [39.18]. That is a novel institution, quite unlike the federations or leagues of the past. And its formulation marks one of the major contributions of the American Founding.
The Federalist No. 10; Daily Advertiser, November 22, 1787 - Madison
THE CURE FOR THE DISEASE MOST INCIDENT TO REPUBLICAN GOVERNMENT
In Federalist 9, Publius argued for extending the sphere (or enlarging the orbit) of republican government "as a barrier against domestic faction and insurrection" [9.1]. In Federalist 10, he argues that, "among the most numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction" [10.1]. But how was that to be accomplished? In this wonderfully compact, yet complex and subtle essay, Publius provides the answer to that question. It may appear that he refers somewhat blandly to the "mischiefs of faction" [10.5; 10.21] in Federalist 10. But a "mischief" was a harm or malady that calls for a cure or remedy. The word clearly fits within a coherent medical analogy constantly employed by Publius.
The vexations of factions threaten the very life of republics, from the perspective of Publius. In other places in The Federalist, he refers rather more vehemently to "the pestilential breath of faction" [81.6], to "party rage" [9.1; 50.6, 10], to the "demon of faction" [65.10], to the "outrages of faction and sedition" [21.5], and to "the violence of faction and sedition" [29.13]. Faction is also coupled with the actions of mobs [8.9], and with sedition or insurrection [see 9.1, 15; 21.5]. The reason for these strident condemnations of faction is that Publius saw civil war and the disintegration of the Union as the end result of the factional quarrels. There is a long tradition, running back at least to Plato, that identifies contention, quarrels, faction, sedition and civil war as sicknesses afflicting disordered human communities.71 What Publius emphasizes is the oppression [10.20, 32], injustice [10.2, 13, 14, 20, 26, 33] and violence [10.1, 10, 17] of factions that gain control of the levers of power, and not merely the vexations and turbulence of cliques. Perhaps more than any other portion of The Federalist, Publius' treatment of the cure for the mischiefs of faction has a literary history.72 In order to understand Publius's arguments in Federalist 10, it is useful to examine the earlier thought on factions.
James Madison told his fellow delegates at the Philadelphia Convention, in his first speech on June 6, 1787, that "the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice" ought to be added to an earlier list of objects for the new national government that Roger Sherman of Connecticut had proposed.73 "Interferences with these were evils which had more perhaps than any thing else, produced this convention," Madison declared. "Was it to be supposed that republican liberty could long exist under the abuses of it practiced in some of the States"? It had been "admitted that in a very small State, faction & oppression wd. prevail. It was to be inferred then that wherever these prevailed the State was too small."74 Had not the evils of faction, and especially the oppression of private rights, prevailed to some extent even in the largest states? The delegates were "thence admonished," by Madison, "to enlarge the sphere as far as the nature of Govt. would admit. This was the only defence agst. the inconveniences of democracy consistent with the democratic form of Govt."75 The lesson that is to be drawn from these circumstances is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Govt. the Majority if united have always the opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d place, that in case they shd. have such an interest, they may not be [so] apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils wch. have been experienced.76
On October 24, 1787, in a long letter to Thomas Jefferson, who was then still serving as Minister to France, Madison took up the question of the necessity "to secure individuals agst. encroachments on their rights."77 The "steadfast friends of republicanism" have been deeply alarmed by the various injustices of the states.78 He felt that "a reform therefore which does not make provision for private rights, must be materially defective."79
It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Government, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority, are distinguished rather by the extent in which they will operate, than by any material difference in their structure. A full discussion of this question would, if I mistake not, unfold the true principles of Republican Government, and prove in contradiction to the concurrent opinions of theoretical writers, that this form of Government, in order to effect its purposes, must operate not within a small but an extensive sphere.80
"Those who contend for a simple Democracy, or a pure republic, actuated by the sense of the majority, and operating within narrow limits, assume or suppose a case which is altogether fictitious. They found their reasoning on the idea, that the people composing the Society," according to Madison, "enjoy not only an equality of political rights, but that they have all precisely the same interests, and the same feelings in every respect. Were this in reality the case, their reasoning would be conclusive."81 If the citizens of a petty or pure republic shared the same opinions, possessiones and hence also interests and passions, then oppression and injustice would not take place. The reason being that
the interest of the majority would be that of the minority also; the decisions could only turn on mere opinion concerning the good of the whole, of which the major voice could be most easily collected, and the public affairs most accurately managed. We know however that no Society ever did or can consist of so homogeneous a mass of Citizens.82
But Madison claimed that "in all civilized Societies, distinctions are various and unavoidable."83 "All civilized societies are divided into different interests and factions...."84
A distinction of property results from that very protection which a free Government gives to unequal faculties of acquiring it. There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest, a manufacturing interest. These classes may again be subdivided according to the different productions of different situations & soils, & according to different branches of commerce, and of manufactures. In addition to these natural distinctions, artificial ones will be founded, on accidental differences in political, religious or other opinions, or an attachment to the persons of leading individuals. However erroneous or ridiculous these grounds of dissention and faction, may appear to the enlightened Statesman, or the benevolent philosopher, the bulk of mankind who are neither Statesmen nor Philosophers, will continue to view them in a different light.85
When a common interest or passion unites a majority, will it find a motive to restrain it from "unjust violations of the rights and interests of the minority, or of individuals?"86 "It remains then to be enquired," Madison informed Jefferson, "whether a majority having any common interest, or feeling any common passion, will find sufficient motives to restrain them from oppressing the minority. An individual is never allowed to be a judge or even a witness in his own cause."87
What motives might act to restrain majority oppression of minorities or individuals? "Three motives can restrain in such cases. 1. a prudent regard to private or partial good, as essentially involved in the general and permanent good of the whole,"88 or what he also called "a prudent regard to their own good as involved in the general and permanent good of the Community."89
This ought no doubt to be sufficient of itself. Experience however shews that it has little effect on individuals, and perhaps still less on a collection of individuals, and least of all on a majority with the public authority in its hands. If the former are ready to forget that honesty is the best policy; the last do no more. They often proceed on the converse of the maxim: that whatever is politic is honest. 2. respect for character. This motive is not found sufficient to restrain individuals from injustice, and loses its efficacy in proportion to the number which is to divide the praise or the blame. Besides as it has reference to public opinion, which is that of the majority, the Standard is fixed by those whose conduct is to be measured by it. 3. Religion. The inefficacy of this restraint on individuals is well known. The conduct of every popular Assembly, acting on oath, the strongest of religious ties, shews that individuals join without remorse in acts agst. which their consciences would revolt, if proposed to them separately in their closets. When Indeed Religion is kindled into enthusiasm, its force like that of other passions is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of Religion, and whilst it lasts will hardly be seen with pleasure at the helm. Even in its coolest state, it has been much oftener a motive to oppression than to restraint from it.90
If small or pure republics or simple democracies–Madison uses these labels interchangeably–are faced with the threat of injustice and oppression from majority factions, and neither enlightened self-interest, nor moral and religious motivations seem sufficient to restrain such evils, what can render a republic safe? That is a question Madison considered prior to the Convention and was one which he went prepared to pose to the delegates assembled at Philadelphia.
If then there must be different interests and parties in Society; and a majority when united by a common interest or passion can not be restrained from oppressing the minority, what remedy can be found in republican Government, where the majority must ultimately decide, but that of giving such an extent to its sphere, that no common interest or passion will be likely to unite a majority of the whole number in an unjust pursuit. In a large Society, the people are broken into so many interests and parties, that a common sentiment is less likely to be felt, and the requisite concert less likely to be formed, by a majority of the whole. The same security seems requisite for the civil as for the religious rights of individuals."91 "As in too small a sphere oppressive combinations may be too easily formed agst. the weaker party, so in too extensive a one, a defensive concert may be rendered too difficult against the oppression of those entrusted with administration.92
And earlier Madison had reasoned as follows: