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A Well Constituted Republic:

A Guide to The Federalist

By

Louis Midgley

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

Preface

Chapter 1 – Introduction

Chapter 2 – Topical Outline of The Federalist

Chapter 3 – Volume I of The Federalist

Chapter 4 – Volume II of The Federalist

BIBLIOGRAPHY

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.

James Madison1

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.

David Hume2

PREFACE

     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.

CHAPTER ONE

INTRODUCTION

     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

CHAPTER TWO

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.

CHAPTER THREE

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:

[1] "The regular distribution of power into distinct departments;

[2] the institution of legislative balances and checks;

[3] the institution of courts composed of judges holding their offices during good behavior;

[4] 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:

If an enlargement of the sphere is found to lessen the insecurity of private rights, it is not because the impulse of a common interest or passion is less predominant with the majority; but because a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great rather than a small number. The Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who feel a common sentiment have less opportunity of communication and concert.93

     Interestingly, Publius does not promise to abolish factions in his "well-constructed Union." It is not only viewed by Publius as undesirable, he feels that the latent causes of faction are so deeply rooted in human nature that it is simply impossible to eradicate them without also abolishing liberty. It will not be necessary to treat the causes of faction in order to abolish them, which is probably impossible, as well as undesirable. Instead, their harmful mischiefs can be remedied or cured, controlled or mitigated. Publius' bold claim is that "in the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to Republican Government" [10.36].94 Since this claim can be made confidently, it should give rise to a measure of "pleasure and pride...in being Republicans" [10.36]. Here we have the first substantial link between the Union and Republican arguments or, the first and second volumes of The Federalist. In this essay, Publius confronts the consequences of a properly fashioned Union, and, indirectly, the details of a "well-constituted republic."

     Without attempting to repress faction or by meddling with their causes, but by curing their mischiefs–the dreaded violence and injustice–it will be possible to avoid the "turbulence and contention" [10.22], which lead to insurrection or civil war–the common faults of popular governments.95 This is to be accomplished, first of all, by extending the orbit or enlarging the sphere of republican government, that is, by increasing the size of both the territory and the population of the republic. In the Philadelphia Convention, Madison, it will be recalled, wanted "to enlarge the sphere as far as the nature of govt. would admit."96 Though Publius has already appealed to Montesquieu to fend off certain of the adversaries of the Constitution, he cannot make him the authority for his project of enlarging the orbit or extending the sphere of republican government. For one thing, the states were already too large to be suitable republics in Montesquieu's terms. The arguments for extending the republic apply to the larger states in the same way they pertain to the proposed national government.

     The question of whether the cure for the disease of faction applies to the states, or to national government, or to both is left somewhat open in Federalist 10. Though there are hints indicating that the cure being proposed for faction will come, at least partly, through a new national republic [see 10.31, 34], Publius does not fully disclose whether he is talking about the states or the national government until Federalist 14 and 51. Why? The intention seems to be to teach "the friend of popular governments," who also happens to be "alarmed for their character and fate." Because of the obviously destructive influences of faction, that the theory behind the cure for the disease of faction is one useful for the states, as well as for the national government in the "well-constituted Union." Publius also has in mind those who have deep concerns for the public good–those he labels "our most considerate and virtuous citizens"–who also share, with the friends of popular government, a concern with the manifestations of factional politics in the states. In this way, Publius reconciles, somewhat, the form of popular (or democratic) government with the proper ends and ordering of government, prior to the more intensive examination of those ultimately crucial issues in the second volume of The Federalist. The state governments, of course, have been unable to prevent certain obnoxious manifestations of factional politics; they fail to provide the cure for the "mortal diseases" of popular government. Hence, Publius is still arguing for the utility of Union, while he is beginning to set forth certain of the key ingredients of his republican argument beginning with Federalist 37. The mischiefs of domestic faction can be cured, and their violence lessened or controlled, by extending the sphere of republican government. Publius provides reasons calculated to convince both the friends of popular government and those concerned for the public good Union will be secured in the new regime without sacrificing republican form.

     Publius provides his own distinct definition of faction. "By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community" [10.4]. This definition breaks somewhat with the traditional use of the term. Unlike the Latin term factio, which identified a clique or small group busy making trouble, Publius' definition stresses that a faction is not merely a small portion or some particular few whose passions puts them in opposition to the public good, but it can consist of a majority of the community. On the other hand, a minority or majority sharing the same opinion would not necessarily constitute a faction, as Publius defines the word. But an opinion, linked to an interest and passion, "adverse to the rights of other citizens," and directed against "the permanent and aggregate interests of the community" would constitute a faction, even, or especially, when it is in the majority.

     The turbulence and contention of faction yields "instability, injustice and confusion" [10.2]. And these have worked their harms in public councils, as well as communities. Efforts have been made, of course, to deal with the threat of faction in the states. Publius offers an assessment of the success of these efforts:

The valuable improvements made by the American [state] Constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty; that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice and the rights of the minor party; but by the superior force of an interested and over-bearing majority [10.2].

Publius claims that the states have been unable to avoid the mischiefs of faction, and the problem is seen in the danger of a majority tyranny. How can such tyranny be prevented?

     "There are," Publius claims, "two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects" [10.5]. Presumably a choice must be made between these methods. "There are again two methods of removing the causes of faction: the one, by destroying liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests" [10.6; 58]. Publius rejects the first method; it is a cure that is worse than the disease. One would no more want to "abolish liberty, which is essential to political life, because it nourishes faction," than one would want to annihilate air in order to prevent the destructive effects of fire [10.7]. Publius sets forth a nice analogy: "Liberty is to faction, what air is to fire, an aliment without which it instantly expires" [10.7]. In this analogy, he makes liberty appear as "essential to political life," as air "is essential to animal life" [10.7]. Air cannot be annihilated; it can only be removed, for we may only "wish the annihilation of air" [10.7], neither can liberty be abolished. Part of what constitutes being human is the possibility of "reflection and choice" [1.2], and human beings are such that they can choose as their project to abolish republican liberty–they are free to do that. But that very choice is an expression of a kind of freedom or agency which cannot be abolished, annihilated or removed. The choice to abolish liberty is self-destructive, just as the choice to destroy life would be self-destructive. Therefore Publius rules out as unwise the first method of removing the causes of faction.

     Also it would be "impracticable" to give every citizen "the same opinions, the same passions, and the same interests" [10.6]. Faction, and its mischiefs, have their roots in interests, passions and opinions. Government alone is simply incapable of removing the inequalities which correspond to the variety of human interests upon which the passions are focused. And even if it were possible, Publius believes that it would be unwise to attempt to interfere with the latent causes of faction. Opinion remains within the domain of choice or moral agency, if not within reason and reflection.

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves [10.8].

The objects of the passions are provided by reasoning, which yields opinions that are both diverse and fallible. It is this reciprocal relation of passion and opinion seems to suggest that the passions may be one important reason for the fallibility of opinion.

     There are those who yet believe that the inequalities that lead to faction, contention and civil war can be eliminated by managing opinions and passions. Some still anticipate building a community unfrayed by factious temperament, so the longing has not entirely disappeared. The longing for a community bound together by the same religious opinions and practices, which is essentially equal in material things, and where the passions had been so tamed that they would habitually be attached to the public good, rather than to some immediate or particular interest, has not entirely disappeared in America. It is still kept alive by various religious communities. These struggle, within the larger commercial republic, with its republican liberty as a protective umbrella, with more or less success, to direct the zeal of believers towards one or another image of Zion. But these communities are grounded in opinions something like that project that flowed from the understanding of the virtues necessary for republican government against which Publius responds in The Federalist. Some wanted small, public-spirited, self-sufficient, non-commercial republics, leagued together for defensive purposes. The old small-republic doctrine provided the underpinning of the opposition to the proposed Constitution. The opposition to the Constitution ultimately rested on a vision of a community which it was hoped that the citizens would share essentially the same opinions, interests and passions.

     When the modern Publius took up the task defending the plan for the new American republic, it was already composed of citizens deeply divided on religious matters. Republican liberty not only permits those religious differences, one of it primary objects, from the perspective of Publius, is the protection of individual conscience and the right of choice on religious matters. Whatever else might be said about the passion for building Zion–a zeal that has marked a portion of the American character–those efforts, though rightfully protected by republican principles, are not directly part of the republican program. In the American republic, as it is situated by Publius, the work of religions remains outside the sphere of politics, though Publius does see the quarrels of religious sectaries as a potential source of competing factions. That also means that there are those whose loyalty to the republic of the modern Publius will be qualified by an even deeper attachment to elements of a pre-modern passion for communities joined with the same opinions, and whose passions and interests are united and directed by a common faith. Publius strives to find a way of allowing these religious communities to exist in peace in his extended commercial republic, by providing security for their rights against the tyranny of a majority faction which may have the power of the regime in its hands.

     Publius discards the proposal of dealing with the dangers of faction and insurrection by attempting to unify opinions, interests and passions. He claims that the project to unify the interests that fuel factions runs up against "the diversity in the faculties of men from which the rights or property originate..." [10.9] In order to protect the right to diverse opinions, it is also necessary to protect interests. And that cannot be done without protecting the diversity of faculties from which the diversity of interests and properties flow. The "first object of Government" is to provide just that protection [10.9]. Earlier Publius had said that the "safety and happiness of society" [43.30; cf. 2.3], or "safety" [3.3], the "common good of the society" [57.3], or "the happiness of the people" [62.12] are the primary objects for which government was instituted.97 "From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties" [10.9]. By protecting the various diverse faculties of mankind, society will of necessity be divided into "different interests and parties" [10.9]. Here, Publius takes up the question of the relationship between interest and opinion. The divisions that form the texture of public life take their rise from the differences in opinion and interest that flow from the inequalities that are "sown in the nature of man" [10.10]. And the passions, when attached to those diverse interests, generate the quarrels and conflicts of politics. Opinion, for Publius, seems to have a certain priority, even though it is through a reciprocal relationship with interest and passion [see 10.6, 8, 10 for Publius' views on opinion and interest].

     Hopefully, not all of politics is contentious, turbulent or factional. But something must be done to control the way in which interests, and passions, as well as differences of opinion, are handled in a republic. Such control is possible precisely because "the latent causes of faction" operate to produce party animosity under a variety of different conditions, or "according to the different circumstances of civil society" [10.10]. What are those circumstances? And, can those circumstances be manipulated by wise Law Givers or Legislators in such a way as to control the mischievous effects of faction?

A zeal for different opinions concerning religion, concerning Government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to co-operate for the common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been known sufficient to kindle their unfriendly passions and excite their most violent conflicts [10.10].

     Publius seems to have borrowed, condensed and modified, for his own purposes, David Hume's treatment of faction in an essay entitled "Of Parties in General."98

As much as legislators and founders of states ought to be honoured and respected among men, as much ought the founders of sects and factions to be detested and hated; because the influence of faction is directly contrary to that of laws. Factions subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation, who ought to give mutual assistance and protection to each other. And what should render the founders of parties more odious is, the difficulty of extirpating these weeds, when once they have taken root in any state. They naturally propagate themselves for many centuries, and seldom end but by the total dissolution of that government, in which they are sown. They are, besides, plants which grow most plentifully in the richest soil; and though absolute governments be not wholly free from them, it must be confessed, that they rise more easily, and propagate themselves faster in free governments....99

     Hume divided faction "into PERSONAL and REAL; that is, into factions, founded on personal friendship or animosity among such as compose the contending parties, and into those founded on some real difference of sentiment or interest," though he granted that "parties are seldom found pure and unmixed."100 "Personal factions arise most easily in small republics. Every domestic quarrel, there, becomes an affair of state. Love, vanity, emulation, any passion, as well as ambition and resentment, begets public division."101 He further divides "real factions...into those from interest, from principle, and from affection. Of all factions, the first [that is, those arising from interest] are the most reasonable, and the most excusable." Parties from affection are "those which are founded on different attachment of men towards particular families and persons...."102 The least reasonable and most disquieting of factions are those arising from differences in principle. "Parties from principle, especially abstract speculative principle, are known only to modern times, and are, perhaps, the most extraordinary and unaccountable phenomenon, that has yet appeared in human affairs."103 Hume saw, in religious quarrels and disputations, potent manifestations of factions grounded in principle, which he also saw as resting on something "universal in human nature."104

     The first form of faction mentioned by Publius in Federalist 10 rests on "a zeal for different opinions concerning religion" [10.10]. If petty republics strove, in the past, to avoid faction and insurrection by maintaining, as much as possible, a uniform faith and practice among the citizenry, it was because it was rightly believed that controversies, or quarrels over matters of faith, would soon turn those republics into arenas of persecution, or would engender civil war. Publius seems to have modeled his cure for the mischiefs of faction after what appeared to him to be the cure for religious quarrels under a free government. Madison warned the Philadelphia Convention of the factions that arise from the quarrels of "this religious Sect or that religious Sect." When one of these factions or sects happens to form a majority "united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent use of the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals: in large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression."105 Publius argued, in Federalist 51, that

in a free government the security for civil rights must be the same as that for religious rights. It consists in the one case on the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and the number of people comprehended under the same government [51.15].7

But in Federalist 10, Publius declared that "a religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against the danger from that source" [10.34]. Just as enlarging the sphere of republican government would tend to make it less likely that a religious sect would constitute a majority faction, so also would it reduce the likelihood of any faction forming a tyrannical majority.

     Publius, of course, thought that different opinions also flowed in channels other than religious controversies. "A zeal for different opinions concerning religion, concerning Government, and many other points, as well of speculation as of practice" leads to faction, and eventually, if unchecked, to civil war and the breakdown of the republic. But there are still other sources and types of faction that might threaten a republic. Like Hume, Publius held that "attachment to different leaders" might be one of those sources of faction.

So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property [10.10-11].

     Unlike the followers of the small-republic ideology, Publius promotes a large commercial republic. Such a republic will embrace many different factions and, therefore, be able to moderate somewhat, as we have already seen, the violence of controversies stemming from different opinions about religion, as well as other matters. Republics have been as addicted to war as any other form of government; commercial republics have been no exception. Publius does not picture commerce as necessarily pacific. In Federalist 6, he argues that the emergence of commercial republics has merely changed the "objects of war" [6.13].106 And Americans are faced with what Publius describes as an "unbridled spirit"; and "the spirit of enterprise, which characterizes the commercial part of America" [7.6]. He also speaks of "the adventurous spirit, which characterizes the commercial character of America, which has already excited uneasy sensations...in Europe" [11.2; cf. 11.10]. If commerce is not to be thought of as the source of peace in the world, why should it promise civil harmony within the United States? Commercial rivalry would seem to be just another name for factional rivalry. Can it be tamed by the very device that will tame religious faction? What is it that might teach men of commerce to tame their passions and seek the public good? What can bring the multiplicity of competing commercial interests into a harmony? Whatever it is, is will not be a natural harmony, but a accord that must be learned. It must be taught to, and even enforced upon, those whose assent would otherwise not be sufficient to produce the desired harmony, just as in the case of religious toleration.

     The scheme Publius defends may not seem to yield justice, though justice is said to be the end of government Federalist 51. It seems to have produced a situation in which there are so many factions that one cannot tyrannize over the others.

     It could be said that those actuated by an unjust interest are factious. But simply being an interest is not sufficient to constitute a faction. Not all interests are necessarily unjust. Not all interests serve the public good. What might be called "non-factious interests" would be those that have learned certain appropriate republican virtues, specifically the lesson of moderation, a virtue which allows them to look to the real interests of the whole and to the public good.

     Publius thus strives to deal with the unresolved tension between a multiplicity of competing interests and the pursuit of the public good. He wishes to inculcate a set of virtues among the American people, and his treatment of the multiplicity of religious opinions show exactly the pattern of his preaching and his project. By multiplying the number of sects in a large republic, the virtue of moderation is taught and, in the process, it yields a tolerance between the competing faiths. The virtues of the new regime will not be merely the traditional virtues of small republics, nor will they be the classical virtues of philosophers. But the new regime will rest on virtue just the same. Part of Publius' project is rhetorical–his book is itself instruction in the virtues of the new regime. But the kind of politics that will result from the new regime will also teach moderation and restraint, just as it teaches religious toleration, and by so doing it will diminish the violence of faction.

     The "principle task of modern Legislation" is described by Publius as "the regulation of these various and interfering interests" of different factions [10.12]. Unfortunately, in that process, "the spirit of party and faction" gets involved "in the necessary and ordinary operations of Government" [10.12]. A factious, not moderate spirit, tends to dominate the legislature, which should be the place where faction is managed. David Hume had earlier complained that factions "always infect the legislature itself, which along could be able, by the steady application of rewards and punishments, to eradicate them."107"No man," Publius claims, "is allowed to be judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity" [10.13]. To act as judge in one's own cause inevitably gets in the way of what Hume called "a government of Laws, not of Men,"108 and that yields something like the tyranny in which civil society has to some degree disappeared. Factions work their way into the legislature, where they act as judges in their own causes [10.13]. And there, they tend to act as if they were in a state of nature; they strive to oppress weaker factions and "trample the rules of justice" [10.14]. Publius seems to be urging the regulation of commercial anarchy by encouraging the pursuit of interest, by whetting the appetites for the fruits of commerce, and thereby multiplying the number of factions and enlarging the theater in which they struggle so that no one of them can oppress the others.

     Part of what Publius is teaching is respect for law, the rules of justice, and especially the rule of law, as opposed to the rule of men. These are opinions which invoke interests and passions. They must be learned and transmitted to future generations. And whatever undercuts these wholesome opinions also weakens the republic. Of course, enlightened citizens cannot always adjust the conflicting interests, partly because there is no real assurance that enlightened citizens will be at the helm [10.15]. Some mechanisms must be set in place that will persuade, charm and require cooperation for the public good.

     In this way, the effects of faction can be controlled, even though the causes of faction cannot be entirely removed [10.16]. If a turbulent faction is a minority, the republican principle of majority rule provides the relief [10.17]. But if the faction happens to be a majority, the principle does not work. Publius moves beyond the traditional worries about faction to include majorities [10.2, 4, 17, 18-21, 32-33]. The greatest danger to popular government is, from his point of view, majority tyranny. "When a majority is included in a faction, the very form of popular government...enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens" [10.18]. This analysis of the evils of faction follows the condemnation in Federalist 9 of previous republican experiments. The ends or objects Publius has in mind are the preservation of the rules of justice, private rights, and the public good.109

     A question that faced the Founders, for which Publius provides the answer, is how best to control the effects of faction. Publius insists that "the great object to which our inquiries are directed," in The Federalist, is to find the best way of securing "the public good and private rights" against the tyranny of an overbearing majority [10.19]. How can that be accomplished? There are only two methods:

Either the existence of the same passion or interest in a majority at the same time, must be prevented; or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression [10.20].

Publius insists that the proper cure is to be found by making remote or improbable the impulse to form a factious majority. Either the impulse or the opportunity must be prevented. But would not preventing the impulse amount to giving the same passion or interest to the citizenry? And would that not be a way of dealing with the causes of faction rather than with their effects? Would that not constitute meddling with the freedom essential to private rights, by stressing the public good at the expense of liberty? Be that as it may, "if the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control" [10.20].

     The Framers were not unaware of the problems associated with popular or democratic government; nevertheless they opted for a variety of that form of government. Even though they recognized the weaknesses and excesses of democracy, and realized that it was often associated with "turbulence and contention" [10.22], they also believed that popular government (or democracy) was the only form of government that conforms to the genius of the American people. A special variety of democracy, which Publius labelled a "republic," would make possible a Union with the necessary energy or vigor, and, at the same time, preserve "republican liberty." Publius saw in the principle of representation (a device borrowed from mixed regimes) the answer to one of the more important weaknesses of popular government. An extended republic is made possible by employing a scheme of representation which will provide the remedy for the disease of faction which plagued earlier attempts at republican government.

     It has sometimes been argued that the Framers were retrograde about democracy, or that they actually opposed democracy, and hence, fashioned a government that would merely appear to have democratic elements, but that actually established an oligarchic regime. That view is clearly wrong. It is true that the Framers understood that democracies were, in the words of Edmund Randolph, threatened by "turbulence and follies,"110 and that they therefore rejected pure democracy, which they saw as not providing a necessary check or restraint on such maladies. They thought that the lessons that could be drawn from the history of the petty republics–most of which, Publius claims, were instances of pure democracy because the people governed their affairs directly–had shown the fatal flaws in that variety of popular government. "Pure Democracy," therefore, "can admit no cure for the mischiefs of faction" [10.21]–a deficiency previously revealed in attempts at democratic government. In addition, Publius reasoned that a pure democracy (a society in which a small number of citizens govern themselves directly) could function only with a small population and territory. "Hence, it is such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have been as short in their lives, as they have been violent in their deaths" [10.22]. America was already a vast territory with a population far exceeding the narrow limits of pure democracies. So it was necessary to turn to some other variety of popular government to find the cure for which they sought.

     Publius believed that the problem that had most often brought the downfall of petty republics, or pure democracies, had been the inability of that variety of democracy to avoid civil war between rival parties or factions. It was the disease of faction and insurrection that ravaged popular governments. Pure democracy offers no check on the interests or passions of majorities [10.20]–it does not teach the citizenry a lesson of moderation. It therefore does not protect the liberty and rights of minorities and unpopular individuals. Instead, pure democracy actually encourages the formation of majority factions [10.21]. And it provides no security for the interests of the minorities or unpopular individuals. Pure democracy, operating on the principle of majority rule in petty republics, has no mechanisms, other than religious or moral restraints, to safeguard the liberties of those outside the majority faction. And Publius believes those moral restraints are ineffective [10.20], when the passions are aroused. Pure democracy is, therefore, a form of despotism and invites tyranny. The tyranny of the majority faction in a small republic is an evil not unlike, and certainly not better than other despotisms or forms of Absolute Government. Pure democracy is therefore incompatible with Free Government.

     Publius has in mind a "Government in which the scheme of representation takes place" [10.24]. That kind of republic differs from a pure democracy in two ways: in Publius' republic there is a "delegation of the Government...to a small number of citizens elected by the rest," and it therefore can extend to a "greater number of citizens and greater sphere of country..." [10.25]. The effect of entrusting the government to representatives permits the refinement and enlargement of "the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations" [10.26].

     But Publius then grants that it may well turn out that "men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people" [10.27]. Or it "may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose" [10.26]. Publius admits that the matter could go either way. Why them opt for representation? Because it is simply impossible for the people to meet and decide for themselves. Some form of representation must take place. And hence the question "is, whether small or extensive Republics are most favorable to the election of proper guardians of the public weal..." [10.28]. That question, he argues, "is clearly decided in favor of" an extensive republic [10.28].

     At this point in his argument, Publius provides reasons why an extended republic is more likely to elect wise and virtuous representatives than is a small one. First, the "proportion of fit characters" is greater in a large than a small republic, and so it would follow that a large republic will "present a greater option, and consequently a greater probability of a fit choice" [10.29]. Also, "it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried..." in small republics [10.30].

     But the primary reason for extending the republic concerns faction and not what Publius calls "fit characters." In an extended republic there will be less possibility for "factious combinations" to oppress minorities or unpopular individuals [10.32].

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interest, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interest; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exits, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other [10.32].

Publius claims that "the same advantage, which a Republic [that is, a representative democracy] has over a [pure] Democracy, in controlling the effects of faction, is enjoyed by a large over a small Republic–is enjoyed by the Union over the States composing it" [10.33]. He concludes this essay by claiming that "in the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to republican government" [10.36].

     But by a republican remedy, he has in mind a variety of "popular government" or democracy. He distinguishes the proper form of democracy from "pure democracy" by giving it the label "republic" [10.24]. It should be remembered that a "republic" is a res-publica or literally a "public thing." The government in a republic is one which belongs to the public. In that sense a republican government is to be distinguished from a monarchy or Absolute Government, which does not belong to the public. But republics come in different forms. In this essay, Publius is beginning to set forth what will be the new and true republican principles. He does this by contrasting his understanding of republican principles with the older and less adequate, if not false, understandings. The various types of republics depend, at least partly, on who constitutes the public which "owns" the government, upon the extent of public authority possessed by that body of citizens, and by whether the public authority is in some real ways controlled, checked or limited. Now it becomes necessary for Publius to begin to examine the character of the proposed republican regime.

     The regime fashioned by the Philadelphia Convention was intended to be a democratic and not an aristocratic or theocratic republic. Publius called it a "republic" for several reasons. One being to distinguish it clearly from pure democracy (which is a flawed variety), but without making the rhetorical mistake of labelling a republic an "impure democracy." But that is exactly what a republic is; it is "impure," however, only in the sense that it rests on the principle of representation. But that was already taken for granted by the anti-Constitution party. The states were not pure democracies, but republics in precisely the sense given to that word by Publius. So the only question, concerned the advantages to be gained by extending the sphere of the new national republic as a way of curing the disease of faction.

     Publius was not attempting to drive some wedge between republican and popular or democratic government, when properly fashioned. The reason is that the alternatives to a popular government or to a democratic republic were the anarchy of and mob rule of petty republics or the tyranny of an oppressive and majority faction or some form of despotism associated with monarchy. All of these, including a mixed regime of some sort, are ruled out by the genius of the American people, which is said to be strictly republican. Pure democracy is a very deficient form of popular government precisely because it first leads to majority tyranny, insurrection, and to mob rule, and then eventually back toward some form of oppressive monarchy. Small republics share something of the same deficiencies. And monarchy is ultimately inconsistent with liberty and hence with longing for a Free Government. Monarchy, when unmixed with republican element, is despotic rule.

     The traditional view of republics or popular governments– and especially unmixed or pure democracies–from Plato (427-347 B.C.) to the American Founding, was that they could retain the virtues necessary for a free people to govern and protect themselves, if, and only if, they remained small, they were essentially equal in material things, they were self-sufficient, and non-commercial. The anti-Constitution party clung to vestiges of that ideology, as it formed the foundation for the opposition to the new Constitution. A version of that ideology had been rather forcefully expressed by Montesquieu, in his The Spirit of the Laws, a book which was widely read and cited as the authoritative source on such issues prior to the writing of The Federalist. But in Federalist 10, Publius provides the intellectual justifications for a large commercial republic, which are made to rest on his belief that petty republics suffer from the disease of faction, a disease for which they offer no cure.

The Federalist No. 11; Independent Journal, November 24, 1787 - Hamilton

THE UTILITY OF UNION FOR COMMERCIAL PURPOSES

     Publius contrasts the possible effects of disunion on commercial enterprise with the material prosperity that will likely flow from an enhanced commerce under the proposed Constitution. The Union, under the Articles of Confederation, Publius claims is wholly inadequate for trade between the states, and for commercial purposes generally. "A unity of commercial, as well as political, interests, can only result from a unity of government" [11.16]. Publius thus makes an impassioned argument for the desirable effects on the prosperity of America to be derived from a regime that will have, as one of its objects or objectives, the enhancement of commerce. In order for this to happen, it will be necessary to have "a vigorous national government" [11.9].

     In a state of disunion the commerce of America would be passive [11.10]. "If we continue united, we may counteract a policy so unfriendly to our prosperity in a number of ways" [11.3], some of which are spelled out in detail. The "commercial character of America" already troubles the maritime powers of Europe [11.2]. If the move is made to adopt the new plan of government, America will be in a position to respond to the "arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race," Publius concludes, "and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will add another victim to his triumphs. Let America disdain to be the instruments of European greatness!" [11.18].

The Federalist No. 12; New-York Packet, November 27, 1787 - Hamilton

THE UTILITY OF UNION FOR REVENUE

     This portion of The Federalist relies upon an unashamed appeal to what Publius calls "the prosperity of commerce," which "all enlightened statesmen acknowledge to be the most useful as well as the most productive source of wealth, and has accordingly become a primary object of their political cares" [12.2]. The proposed national government will assist the growth of commerce, and, by so doing, add to the wealth of America. It will provide the American people with the prosperity for which they yearn. That was a difficult position for the adversaries of the Constitution to challenge, for it appeals to the powerful and even dominating spirit of Americans, or what can be described as an enterprising spirit bent on achieving material prosperity.

     Publius argues for adoption of the Constitution in ways that draw emphatic attention to the potential material blessings that can be anticipated under the new regime. He thereby skirts the most difficult issues, at least for the moment. Only after defending the necessity of a firm Union, such as would be provided by the proposed Constitution (which was the least controversial issue) will Publius begin to deal directly with the more controversial ones in the second part of the book.

     Publius strives not only to demonstrate that the government under the Articles is wholly inadequate for the gratification of the commercial spirit of Americans, but that "one national government" would be better able to deal with the problem of revenue for public purposes than either partial confederacies or the states acting separately [see 12.17]. The older worries about the incompatibility of agriculture, commercial, and trading endeavors are made to seem unfounded. If some are troubled by the emphasis on commerce, because they have a feeling that commercial endeavors compete with agriculture, Publius has a response [see 12.3]: "in proportion as commerce has flourished, land has risen in value" [12.3].111

     The bulk of this essay is addressed to the question of taxation in an extended commercial republic [12.6-19]. And whatever one might make of the various arguments concerning direct and indirect taxation, or of the discussion of the faults of excise taxes in particular, the central points that Publius makes are the following:

(1) the necessary public revenue will be much easier to raise through taxation under the proposed regime, than under disunited states or partial confederacies, precisely because the large republic will enhance the commercial prosperity of Americans because successful commercial ventures will make the payment of taxes easier; and

(2) no system or scheme of taxation ought to be adopted that will adversely effect commerce. Publius thus argues for indirect rather than direct taxation [12.7]. The reason is that indirect taxes can be collected without harming trade and commerce [12.11-12].

The proper mode of taxation should be determined by the potential effects on commercial prosperity. And indirect taxation, in addition to providing sufficient revenue, can also be employed to regulate the consumption of items, such as "ardent spirits" [12.17].

     [Historical Note: On November 27, 1787, the legislature of Maryland called for a convention to consider ratification of the proposed Constitution. Delegates were elected on April 7, 1788.]

The Federalist No. 13; Independent Journal, November 28, 1787 - Hamilton

THE PROPOSED UNION AND THE COST OF GOVERNING

     The government under the Articles of Confederation, Publius argues, is not only wholly inadequate for the future enhancement of the commerce and hence unable to yield material prosperity, but it will ultimately turn out to be more costly to operate. The states, when properly united under one national government, will require "but one national civil list" to carry out the necessary activities of government. Attempting to govern all of their own affairs separately, when totally disunited, or through the assistance of several petty confederacies, will prove more costly to the states than the proposed plan [13.1]. The reason being that each state or petty confederacy would, when disunited, need a duplicate bureaucracy (or, what Publius calls "civil list") to carry on that portion of the affairs of government that otherwise would be conducted by the one national government [13.4].

The Federalist No. 14; New-York Packet, November 30, 1787 - Madison

THE ADVANTAGES OF AN EXTENDED COMMERCIAL REPUBLIC

     Publius once again enters the discussion of the utility of Union. He begins with a summary of the arguments presented to this point in The Federalist. They include the following arguments for what he calls "the necessity of Union" [14.1]. The Union will serve

[1] as our bulwark against foreign danger,

[2] as the conservator of peace among ourselves,

[3] as the guardian of commerce and other common interests,

[4] as the only substitute for those military establishments which have subverted the liberties of the Old World,

[5] and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. [14.1.]

What must be taken up in this branch of the arguments, as it was outlined at the beginning, "is to take notice of an objection that may be drawn from the great extent of country which the Union embraces" [14.1]. Publius must have felt that his earlier arguments in response to objections from others regarding enlarging the orbit of republican government or to extending the republic [see 9.4ff.] were either somewhat inadequate, or at least needed bolstering, or refinement.

     What follows is an extension of the argument previously advanced [see especially 9.4ff.] on the desirability of an extended, commercial republic. That argument is now linked to the argument for an indirect or representative republic, rather than a pure democracy [see 10.1ff]. Publius provides answers to critics of the proposed Constitution who maintain that it is not possible to maintain republican liberty when the orbit of republican government is enlarged, that is, in an extensive, as well as commercial, republic.

     Publius labels the objection to an extended republic an "imaginary difficulty" [14.1]. It results from "the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter" [14.2]. Earlier, he had defined a "pure democracy" as a form of popular government in which a small number of people meet to conduct the affairs of government themselves [10.21], while he employed the word "republic" as the label for a type of popular government in which the people do not meet directly but govern through elected representatives [10.24]. Publius now restates the position already set forth earlier [14.2]. And he then uses the distinction that he has made between a "pure democracy" and a "republic" to defend his plan to enlarge the orbit of republican government by creating a national government that would be an extended republic [14.2]. "A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region" [14.2].

     Then he complains about the "artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinion" [14.3]. Presumably he has in mind writers like the celebrated Montesquieu. Such writers, whoever they are, have exaggerated the "vices and defects of the republican" government by giving attention to the "turbulent democracies of ancient Greece and Northern Italy" [14.3]. They have also managed to confuse republics with democracies, that is, they have used those labels somewhat differently than Publius does [14.3]. They had, of course, their reasons for doing that, and they were correct, at least in one sense. Hence Publius affirms that "most of the popular governments of antiquity were of the democratic species," even though they were often called republics [14.4]. And it is difficult, if not impossible, Publius claims, to find instances of petty republics that functioned through representation. The principle of representation was borrowed by Americans from more recent mixed regimes like that of Britain, and not from strictly republican regimes [14.4]. Publius even claims that it is virtually impossible to find clear instances of wholly popular governments which employed a scheme of representation outside of America.112 Publius claims that "America can claim the merit of making the discovery [of representation] the basis of unmixed and extensive republics" [14.4].

     Publius was anxious to reduce the quarrel between those attached to remnants of non-commercial, small-republic federalism and his own invention–the extended commercial republic. His method was to center on the question of the natural limits of "pure democracies" and "representative republics" [14.5]. By that strategy he managed to avoid confronting certain of the deeper concerns of "the adversaries of the new Constitution" [14.1]. Publius does not address the issue directly, though the name "Publius" implies at least some links with the classical republican ideal, and thus, seems to accept for the new regime the need for virtue in a well-constituted republic.

     Instead, building on his notion that a republic is a kind of democracy (or popular government) that involves representation, and can therefore be extended much further than a pure democracy, Publius advances four observations on the extended republic embodied in the new plan of government.

1. What Publius now calls "the general government"–otherwise known by him as the "national government"–will be "limited to certain enumerated object" of "concern to all members of the republic" [14.9]. What he calls "the subordinate governments," that is, the states, will retain all the remaining powers [14.10]. Publius then admits that the adversaries of the new plan "would have some ground for their objection," if the proposed Constitution had abolished the states. Though "it would not be difficult," he claims, "to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction" [14.10]. It should be noted that Publius here uses the word "republic" [see 14.9] to identify both the general (or national) government and the subordinate (or state) governments.

2. The purpose of the "federal Constitution is to secure the union of the thirteen primitive States" [14.11].

3. And to do that will improve communication between the states because roads will be built and so forth [14.12].

4. Those states most exposed to foreign attack will benefit the most from the protection offered by the existence of the improved Union, rather than one disunited or dissolved. But they will not be required to pay the full costs of that protection, but only a proportion of the total cost for that advantage [14.13].

     The remainder of this essay is an appeal to the American people not to listen to those who complain that the new plan of government is a novelty [14.14, 15]. Publius grants that it has its novel aspects, but rejecting it would be even more novel [14.16], granting the noble course charted by the Revolution in "forming the design of a great Confederacy" [14.19]. He then urges the people of America not to succumb "to the gloomy and perilous scene into which the advocates for disunion would conduct you" [14.14]. He describes the voice of such advocates as unnatural and as a betrayal of the genius of the American people [14.14]. If Americans were to give serious attention to such a voice they would "be numbered among the melancholy victims of misguided councils" [14.18].

B. INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THE UNION

1. THE ABSENCE OF THE NECESSARY ENERGY IN THE UNION UNDER THE ARTICLES OF CONFEDERATION

The Federalist No. 15; Independent Journal, December 1, 1787 - Hamilton

THE INABILITY OF THE CONFEDERATION TO PRESERVE THE UNION

     Everyone agrees, according to Publius, that "something is necessary to be done to rescue us from impending anarchy" [15.3]. The absence of the requisite energy in the government under the Articles of Confederation was such that virtually everyone, both friend and foe of the new Constitution, acknowledges that the existing confederation was more or less insufficient to the preservation of the Union. Something had to be done. Publius then stressed the need for an energetic government, such as that proposed by the Constitution.

     There follows a catalogue of the problems that face the nation [see 15.4], which can be traced to the absences of energy in the Union. The faults of the Confederation are characterized as constituting "almost the last state of national humiliation" [15.4]. Publius includes a long list of such weaknesses. One of the defects in the Union is the lack of respect given to American ambassadors abroad who are treated as "mere pageants of mimic sovereignty" [15.4]. Publius then describes the "melancholy situation" into which the country has fallen because of the realization that there are "material defects in our national system" [15.6]. What exactly is the source of these defects? His answer is that it is the absence of the requisite energy, or "power" [see 15.6]. But some still want to merely bandage the infirmaries of the national government without "a diminution of State authority" [15.5]. The blind devotion to the theory behind the Articles of Confederation makes a "display of the principle defect of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building" [15.6].113 The existing Union lacks the necessary energy to do those things that need to be done by government for the American people. The reason is that it is nothing more than a league of sovereign states, and therefore not a genuine Union worthy of the American people.

     The Confederation is not much more than a complex alliance or compact between sovereign nations; the result is nothing more that a league of sovereign states. That in itself is not absurd or impracticable. But it constitutes a complex treaty for certain narrow purposes, mostly for the defense of the members of the league. And, like most arrangements made by treaties or compacts between nations, it is subject to all the vicissitudes of passion and interest. Hence, it will fall apart the moment any of the members of the league or alliance find it in their own immediate self-interest to negate the terms of the treaty or refuse to comply with its stipulations [15.9]. And since it is not really a government, but a league of sovereign states that regularly meets in a congress, it is virtually impossible for it to legislate on issues that go beyond the terms of the original compact, or on matters where there is not unanimous agreement forthcoming.

     Federations (or confederations), being essentially simple defensive leagues, cannot deal directly with the citizens of the member states. And they lack, therefore, a genuine capacity to legislate. They are leagues and not real governments [15.11]. Publius sets out the reasons for this assertion. "Government," according to him, "implies the power of making laws" [5.12], and laws require sanctions. Leagues have no way of enforcing laws other than turning to military force to bring about compliance with their agreements [15.12], they cannot apply coercion through the agency of courts. Since the only avenue open to a league to bring members into compliance is military force, whenever there is a disagreement they are thrown back into what amounts to a state of war [15.13]. The very necessity for having a government stems from the unwillingness of mankind to follow the dictates of reason and justice [15.15] in the pursuit of the public good. The end result is that leagues have a tendency to disintegrate because the love of power turns the members of a league into quarreling rivals [15.17].

     When this analysis of leagues is applied to the Confederation under the Articles of Confederation, it appears that it lacks some of the elements necessary for government and it is therefore a mere league. The agreement of all members of the Congress of the thirteen sovereign states makes a coherent policy difficult if not virtually impossible. Any reluctance on the part of a member state to follow an agreement made in Congress eventually reduces the other states to an act of war to force compliance [15.18-19] or it negates the agreement.

The Federalist No. 16; New-York Packet, December 4, 1787 - Hamilton

SAME SUBJECT continued

     A league or confederacy faces a major difficulty in attempting to legislate. That weakness is clearly manifest under the Articles of Confederation. The American experiment quite closely mirrors the "events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems" [16.1]. Publius presents a bleak picture of the weaknesses of confederacies by appealing to examples of such arrangements in the past [see 16.1]. When a member of a confederation is delinquent, the only recourse the other members have is force; the end result of an appeal to force is civil war among the members of the league [16.2]. If there is a reluctance to employ force, the result is that nothing can be done collectively, and the end result is anarchy [16.2-3].

     Publius then examines, in some detail, the motivations that are likely to be at work fueling such an impasse [16.4]. If there is in a league, a resolution to act in some manner, the only means available to secure compliance of a dissident state is force. And once the "sword is drawn, the passions of men observe no bounds of moderation" [16.5]. The Union is thus threatened by wars which are likely to result from its very impotence [16.5-6]. Such conflicts may end in what Publius labels "military despotism," if the Confederation could generate a will to enforce the decisions of Congress. But even military coercion has not been an effective means of enforcing the will of leagues [16.8].

     At this point, Publius concludes that the problems that afflict the Confederation will be solved under the proposed Constitution [16.9]. Under the new plan, an energetic national authority will be empowered to preserve the Union precisely because it will be able to act directly on citizens. That will be possible because there will be no need for the unanimous consent of the members in the new Union. The states, under the Confederation, could disrupt the exercise of national authority by not agreeing in Congress, or by not acting to implement actions agreed upon by Congress. And there was nothing that Congress could do about it, short of civil war. The states will lack power, under the new plan, to prevent national action [16.10-12]. And the new energetic national government under the proposed Constitution will not be obliged to rely upon military coercion to insure national action, but can turn to a system of national courts with jurisdiction to enforce the decisions of the Union [16.14].

     Publius ends this essay by granting that the proposed Constitution, while excellent in its way, does not remedy every ill that may afflict American society. There is the possibility that those "mortal feuds which...spread a conflagration through a whole nation" may still destroy the Union. Such feuds proceed from various causes, including "the contagion of some violent popular paroxysm" [16.14]. Such spasms fall outside the "ordinary range of calculation" and they may well bring the end of empires. "No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities" [16.14].

The Federalist No. 17; Independent Journal, December 5, 1787 - Hamilton

SAME SUBJECT continued

     Publius now addresses the concerns of those who fear that the national government he is defending "would tend to render the government of the Union too powerful" [17.1], and especially so that it could absorb the authority of the states. Publius claims that he cannot discern any motive that the agents of the Union might possibly have, even giving the widest possible latitude "to the love of power," that would yield such a temptation [17.1]. Ambition and avarice will much more likely be enthralled by the "charms" of such things as "commerce, finance negotiation, and war," leaving little or no necessity, or even room, for intrigues on the part of the agents of the Union against the authority of the states [17.2].

     Publius then considers the hypothetical possibility that "mere wantonness and lusts of domination would" somehow dispose some men to turn their attention on the powers of the states [17.5]. The citizens of the states would be able to "control the indulgence of so extravagant an appetite" [17.5], though Publius does not explain exactly how they would be able to accomplish such a thing. Be that as it may, the more likely predator for power would be the states and not the national government [17.6]. At this point, Publius offers a number of reasons why this is so [17.7-12]. He pictures the states as continuing to be the center of political gravity, while the national government will remain remote [17.13-14]. And he supports that stance with historical materials which disclose the centrifugal tendencies in ancient feudal systems [17.16-20]. All this may come as something of a shock to the modern reader, especially one disposed to assume that the states must fear and constantly guard against encroachments upon their authority by the national, or as we now call it "federal," authority. But Publius argues that, if the state governments administer "their affairs with uprightness and prudence, [they] will generally possess over the people" a greater influence than the national government [17.7]. That argument is just one of the surprises to be found in The Federalist.

     [Historical Note: On December 6, 1787, North Carolina called for a convention to consider ratification of the proposed Constitution. But delegates were not elected until March 28-29, 1788.]

2. THE GOVERNMENT UNDER THE ARTICLES IS FLAWED BECAUSE IT FOLLOWS THE PATTERN OF LEAGUES IN THE PAST THAT FAILED

The Federalist No. 18; New-York Packet, December 7, 1787 - Hamilton

HISTORICAL EXAMPLES OF THE FAILURES OF ANCIENT FEDERATIONS

     Publius ended Federalist 17 by promising a full review of the history of federations. The purpose of such a review is to provide the appropriate materials from which one can begin to generalize about such matters. He holds that the history of federations shows that the teaching he has just set out [17.21] is sound because it rests on experience–that best of all guides to political understanding. He then provides "the outlines of this important portion of history" because it "teaches more than one lesson." And he also presents the historical review because "it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than tyranny in the head" [18.17]. Numerous historical examples are provided illustrating the centrifugal forces at work in federations of republics that lead to anarchy. This was done in an effort to reinforce the argument already presented, that confederations that cannot act directly on the citizens of the members of the confederation are vulnerable to disintegration and anarchy.

     Attention should be given to the manner in which Publius reasons from historical materials, and also to the kinds of uses he makes of history. Clearly he thinks that history is the great laboratory of human things from which an attentive student can and must learn the lessons that go to making up the science of politics, as that science was then understood [cf. 31.18].

     [Historical Note: On December 7, Delaware became the first state to ratify the Constitution, 20 to 0. The convention was called on November 10 and the delegates elected on November 26, 1787.]

The Federalist No. 19; Independent Journal, December 8, 1787 - Madison

MORE HISTORICAL EXAMPLES OF FLAWED FEDERATIONS

     Publius continues his survey of the history of federations.

The Federalist No. 20; New-York Packet, December 11, 1787 - Madison

MORE ON THE HISTORY OF FEDERATIONS

     Once again, continuing his survey of the history of federations, Publius concludes that weak federations tend to dissolve, or they end in usurpations of powers that prevent their further decay [see 20.19, for example]. But he notes that "tyranny has perhaps oftener grown out of the assumption of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities" [20.20]. Thus he drew lessons from the history of confederacies, which he applied in defense of the proposed Constitution. The Framers wanted to avoid the dissolution of the Union by creating a national government fitted with the requisite powers to insure domestic stability, and to protect against foreign threats, while facilitating the commercial prosperity of the American people. The question they faced was how to protect the Union from lapsing into anarchy. "The surrounding powers impose an absolute necessity of union to a certain degree," but "they also nourish by their intrigues the constitutional vices which keep republics in some degree always at their mercy" [20.22].

     Publius then provides a remarkable aside:

Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness. [20.24.]

3. THE ABSENCE OF A POWER TO TAX EFFECTIVELY UNDER THE ARTICLES OF CONFEDERATION

The Federalist No. 21; Independent Journal, December 12, 1787 - Hamilton

THE CONFEDERATION'S MODE OF TAXATION IS FLAWED

     The Articles had not properly addressed the question of taxation. The method available to the Confederation was a system of requisitions made on the states for the revenue necessary to carry out the tasks of the Union [21.6ff., for the discussion of the evils of quotas on the states]. Such requisitions are not backed by the sanction of law [21.2], and hence cannot be legally enforced. Nothing more than moral appeals could be made to delinquent states, unless the states that wished to see the revenue made available to the Union determined that military force had to be used. In that case, armed intervention in the affairs of the states could be used to force compliance with the requisitions; the potential result–civil war.

     In an interesting discussion of taxation, Publius defends indirect taxes on articles of consumption, or what would amount to a national sales tax, against direct taxes levied on land, income, or buildings [21.7-11]. Indirect taxes are more easily collected, and they are less likely to impede or distort commercial activities than are direct taxes [cf. 12.17-19].

     The Confederation is also charged with lacking a guaranty from the Union to repel domestic dangers from factions which may strive to erect a tyranny [21.4].

     [Historical Note: Pennsylvania called for a state convention on September 28, electing delegates on November 6. On December 12, 1787, Pennsylvania became the second state to ratify the Constitution, 46 to 23.]

4. MISCELLANEOUS WEAKNESS IN THE GOVERNMENT UNDER THE ARTICLES OF CONFEDERATION

The Federalist No. 22; New-York Packet, December 14, 1787 - Hamilton

MISCELLANEOUS ADDITIONAL DEFECTS IN THE CONFEDERATION

     The Articles of Confederation have additional weaknesses that have not yet been addressed by Publius. These include the following items, which are discussed in this essay:

1. The Confederation under the Articles is not able to provide the necessary regulation of commerce between the states. As a result, grievous barriers to commerce have grown up between the states [22.2-4], thus harming commerce.

2. The Confederation is unable to provide for a sufficiently powerful military force to protect the Union from either foreign or domestic threats. Part of the problem is that the Union must rely on requisitions placed by Congress on the states to raise and support armies [22.5-6].

3. Giving each state an equal vote in the Congress under the Articles, violates "every idea of proportion and every rule of fair representation" [22.7], and, for reasons already reviewed, encourages delays and intrigues that frustrate the achievement of the common good [22.8-10].

4. These weaknesses open the door to the evils of foreign corruption and domestic faction [22.10]. Republics are particularly prone to foreign corruption. By that, Publius means that foreign powers can purchase influence from agents within a republic more easily than they could corrupt monarchies. The reason being that monarchies already possess a great deal of private wealth and have far too much honor and glory at stake to be easily corrupted by mere monetary bribes [22.11-13].

5. The Articles make no provision for a national system of courts. "Laws are a dead letter without courts to expound and define their true meaning and operation" [22.14]. And it is folly to rely on the state courts because they cannot possibly provide the uniform interpretation of the law that is absolutely necessary for free government [22.14].

6. The legislative authority is inadequate under the Articles [22.17]. There is also a defense offered for the necessity of a bicameral, or two-house legislature, in a stable republic [22.17; and cf. 51.8].

     [Historical Note: On December 14, 1787, the legislature of New Hampshire called for a convention to consider ratification of the proposed Constitution. Delegates were elected on December 31, 1787.]

C. THE NECESSITY OF A GOVERNMENT AT LEAST AS ENERGETIC WITH THE ONE PROPOSED

1. THE NEED FOR A UNION WITH POWER SUFFICIENT TO PROVIDE FOR THE COMMON DEFENSE

The Federalist No. 23; New-York Packet, December 18, 1787 - Hamilton

COMMON DEFENSE A PROPER OBJECT TO BE PROVIDED BY THE UNION

     According to Publius, the objects for which it is desirable to have a powerful or energetic federal Union include the following:

(1) provision for the "national defense," or what was then called "common defense of the states";

(2) "the preservation of the public peace, as well against internal convulsions as external attacks";

(3) "the regulation of commerce with other nations and between the States"; and

(4) the conduct of foreign relations, including both political and commercial matters [23.2].

     Since Publius has earlier shown [see Federalist 15-20] that the Confederation lacked the powers necessary to provide for the common defense, he now demonstrates that the Union must necessarily posses powers at least a great as those set forth in the proposed Constitution. Presumably the object of those powers has been established, with an argument showing their utility and necessity. Then it follows that the means must be commensurate to the end. Since the threat to the safety of the Union is unlimited, the power to protect against that threat must be unlimited [23.4-6, 9]. More specifically, the power to raise armies, equip navies, and so forth, "ought to exist without limitation" [23.4]. Once one has granted that the objects already set forth are proper objects of the Union, and are necessary, then it follows "that government ought to be clothed with all the powers requisite to complete the execution of its trust" [23.6]. This kind of argument is repeated over and over by Publius in the first half of The Federalist. He holds that once the necessity of the end, or object, of the grant of power to government has been determined, then it is only proper to provide the means appropriate to the attainment of that end. Since the end of safety from foreign aggression or domestic insurrection is proper, then the necessary means to attain it have been justified. And those means include an unlimited "energy," or power, to accomplish what is an unlimited end. The object or end is unlimited in the sense that it is not possible to foresee the potential dimensions of the threat. One fundamental weakness of the Confederation is that it lacked the necessary and proper means to attain the true ends of Union. No adequate provision had been made for the exercise of the powers necessary to carry out the objects properly entrusted to it [23.7].

     These necessary but general considerations lead to more specific complaints against the Articles of Confederation. For example, the Confederation must rely on the "fallacious scheme of quotas and requisitions, as equally impracticable and unjust" [23.8], for the revenues necessary to finance the legitimate and proper activities of government. Publius pounds away against that particular weakness and against certain other related features of the Articles of Confederation. When those features of the Articles are once admitted to being flawed, the only alternative is the abandonment of the older notion of what constitutes a federation. The ground is then laid for the new national government and the way is cleared for the proposed Constitution.

     The new Union will not be a mere society of societies, but will consist, at least on one level, of a new national republic which will be empowered to act directly on the people, and which will have certain unlimited powers. But can unlimited powers be vested safely in such a government? Publius argues that they can? Of course a certain "vigilant and careful attention of the people" will be necessary to prevent abuses of power [see 23.11]. He does not go into detail in this essay on the popular or republican restraints–that discussion begins with Federalist 27. He argues that a government which cannot be trusted with the requisite powers is not the proper depository of the national interests [23.11], and presumably, that issue has already been settled.

The Federalist No. 24; Independent Journal, December 19, 1787 - Hamilton

THE POWER TO MAINTAIN STANDING ARMIES IN DEFENSE OF THE UNION

     Publius now confidently asserts that no real objections can be raised to his reasoning in the preceding essay. The one objection that has surfaced flows from the rather common anxiety of certain Americans about the existence of standing armies in times of peace [24.1]. He proposes to show that this objection rests on "weak and unsubstantial foundations" [24.1]. He then examines the arguments and points out the confusions and misunderstandings upon which they rest [see 24.3-8].

     Then, directly taking up the concern over the possibility of standing armies in times of peace, Publius makes the observation that they are prohibited in only two of the state constitutions [24.6, 8]. And, in addition, a standing army is not prohibited by the Articles of Confederation [24.6]. Why then all the fuss about the possibility of a standing army under the proposed Constitution? Publius points out that the security of America demanded permanent garrisons in some places in times of peace [24.12]. And since there "are various considerations that warn us against an excess of confidence or security" from foreign threats merely because we are separated from potential enemies by wide oceans [24.11], the time will likely come when larger garrisons, fortifications and a powerful navy will be necessary [24.13-14].

     [Historical Note: On December 18, 1787, New Jersey became the third state to ratify the proposed Constitution, 38 to 0.]

The Federalist No. 25; New-York Packet, December 21, 1787 - Hamilton

THE POWER NECESSARY FOR DEFENSE OF THE UNION continued

     Publius warns against the notion that the burden of providing for the common defense can somehow be shifted to the states, while only some general direction for that object could be maintained by the Union [25.1]. He offers a number of reasons for his view on this matter. He warns of the dangers to other states, the nation itself, and to the liberty of the people resulting from the proliferation of military establishments within the states [25.2]. The states are prone to rivalships with each other [25.2], especially with the Union, but also with foreign powers. Publius' conclusion is that the existence of military establishments outside the effective control of the national government and in the states presents a profound threat to the liberties of the people, as well as to peace and security [see 25.3-4].

     Publius also rejects the suggestion that the militia of the states is the necessary guardian of the nation because it is assumed to be "at all times equal to national defense" [25.8]. That is simply false. The experience of republics, including the American experience, was that the conduct of war cannot be left merely to the untrained or to irregulars [25.8].

The Federalist No. 26; Independent Journal, December 22, 1787 - Hamilton

THE POWER OF THE PURSE AS A CHECK ON THE POWER OF THE SWORD

     Some critics of the Constitution had insisted on the necessity of "restraining the legislative authority" so that it could not form and support standing armies in time of peace [see 26.2]. The reason behind such a suggestion was a fear that the legislature would, through the military establishment, become the engine of tyranny. Publius rejected such reasoning as a manifestation of "a zeal for liberty more ardent than enlightened" [26.2; cf. 1.10, for the use of similar language].

     The task before the Framers was to find a common ground between the extremes of anarchy and tyranny or, to "combine the energy of government with the security of private rights" [26.1]. But fear for the liberties of the nation from a standing army in the hands of a tyrannical legislature betrays, not a sound desire to "rectify and ameliorate our system," but the disorder of a chimerical or wholly imaginary project [26.1]. It is, Publius concludes, "better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority" that would prevent it from properly providing at all times for the common defense [26.2]. The arguments of the critics of the Constitution display a lack of confidence in government as such. And, if those arguments are sound, it "would utterly unfit the people of this country for any species of government whatever," but fortunately, the American people, according to Publius, "have too much discernment to be argued into anarchy" [26.2].

     Publius then sets out and defends the idea of giving Congress a check and control over the executive department with regard to the military establishment. The executive magistrate must rely on Congress for funds to support a standing army. And it cannot vest in the executive department permanent funds for that purpose [26.10]. The power of the purse is a control over the power of the sword. No real threat to liberty can come from the military establishment as long as the Congress controls the purse strings and can scrutinize and supervise the executive magistrate's management of military matters [26.10-12]. Publius thinks it quite unlikely that the executive department can somehow find sufficient funds on its own "to dispense with supplies from the acts of the legislature" [26.14]. The assumption, is that control over the purse provides an adequate check upon the unauthorized use of the power of the sword.

The Federalist No. 27; New-York Packet, December 25, 1787 - Hamilton

MILITARY FORCE WILL NOT NEED TO BE EMPLOYED TO EXECUTE THE LAWS

     Some adversaries of the proposed Constitution claimed, according to Publius, that without the use of military force it would be impossible to enforce the laws of the general government [see 27.1]. That would only be true if there was an active and positive "disinclination of the people" to obey such laws. And, Publius holds, there is no good reason to expect that the people will be so inclined. Since habit is the ground for obedience to law [27.4], unless the general government bungles the job of governing to such a degree that the habitual compliance to law is undermined, it is not likely that there will be less compliance to the laws of the general government than one might expect to the laws of the various state governments.

     In addition, it is likely that the "general government will be better administered than the particular governments" [27.2]. The reasons for this conclusion contain a number of echoes of earlier parts of The Federalist.114 Although Publius does not employ the expression at this point, he holds that by extending the spheres of elections (in an extended republic) there would be a reason to believe that legislators with better qualifications will find their way into the public councils; and that there will be less influence there of a factious spirit, that the actions of the national government will be "more out of reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils" [27.2]. If these things are true, if the workings of the general government do not "terminate in general distress, dissatisfaction, and disgust" [27.2], it is not likely that the people of America will be any less likely to habitually obey the law than the people in any given state.

     Publius provides some additional conjectures as to why it the laws of the general government will receive even better compliance than those of the states [see especially 27.3-4]. He claims that the laws of the general government, under the proposed Constitution will be easier to enforce than the laws of the Confederation. Since laws of the Confederation could not be addressed to the people directly, but only on the states, and any instance of non-compliance was likely to culminate in the equivalent of civil war, with violence serving as the ultimate tool for gaining compliance [27.5]. The new national government would have ready access to the normal and usual avenues for enforcement, all of which employ the ordinary magistracy, including that of state officials, who are to be bound by oath to uphold the supreme law of the land [27.6].

The Federalist No. 28; Independent Journal, December 26, 1787 - Hamilton

THE CONDITIONS UNDER WHICH MILITARY FORCE MAY BE NECESSARY

     There may be, of course, instances in which it will be necessary to turn to military force to uphold the laws of the national government or to quell insurrections. The examples of other nations, coupled to the experience of Americans, shows "seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body" [28.1], and the simple force of law may not be sufficient in all instances.

     Insurrections are such that military force may be the only possible remedy. And the size of the republic will not be the crucial factor. Hence, partial confederacies, and even the states in isolation, may find recourse to military force sometimes necessary [28.4]. In each instance, the ultimate safeguard against the irregular use of military force is the same–the power ultimately rests with the "representatives of the people" [28.5]. And, if the people's representatives betray their trust, the only recourse is to the "original right of self-defense," but then society would have virtually ceased [28.6]. Therefore, it is prudent to have available an authorized and regular means for defending the peace and tranquillity of the people from insurrections. With the larger extent of territory and population, the possibility of a successful insurrection decreases as the means to combat it increases [28.7, 9].

     Publius ends this essay with a melancholy observation. As the size and wealth of the nation grows, so will the potential for supporting a large army–something that was not then possible [28.9]. He seems to consider the possibility that at some unknown point in the future the federal government will be capable of erecting a despotism with an army. When might that be possible? He does not answer, but he does suggest that the proper remedy for this threat is for the governments of the states to take "measures for their own defense" [28.10]. But he also grants that such a possibility raises difficulties for which there are no cures "in the resources of argument and reasoning" [28.10].

The Federalist No. 29;115 Independent Journal, January 9, 1788 - Hamilton

QUESTIONS CONCERNING THE MILITIA IN THE STATES

     Some critics of the Constitution see an evil in the authority of the general government to regulate the militia of the states, that is, those armed forces subject to service in an emergency and not part of a professional, or standing army. These forces are available either to the states in which they reside, or to the national government. Objections were raised by critics of the Constitution because the militia would be regulated by Congress under the new plan [29.1].

     One complaint is that this provision in the Constitution would effectively prevent conscription of an army in an emergency. The term used by Publius to describe such a potential conscription is posse comitatus [29.4]. He insists that nothing in the Constitution prevents requiring assistance from or to civilians in times of emergency.116

     The objections to having Congress authorized to provide regulations for the militia lead Publius into a number of complaints about the probity (or honesty), the reasoning capacity, and deeper (or real) motivations of those who had made the complaints [see especially 29.9-12]. At the end of The Federalist, Publius offers an apology for being lured or enticed into making such observations [see 85.4].

     Publius then offers his own interesting sketch of how the militia of the states might be "well-regulated" by Congress, once the new Constitution has come into being [see 29.6-7].

2. THE POWER TO TAX IN A WELL-CONSTITUTED UNION

The Federalist No. 30; New-York Packet, December 28, 1787 - Hamilton

THE NEED FOR AN UNLIMITED POWER TO TAX AND BORROW

     As has already been indicated, the Articles of Confederation did not grant to Congress the power necessary to tax in order to finance the operations of the government under the Union. What was authorized by the Articles was merely the procurement of revenue by a system of quotas and requisitions placed upon the states [see 30.4-5, 7, for complaints about this feature of the Articles]. And, even though the states under the Articles were legally obliged to comply with those requisitions, as Publius points out, they regularly failed to do so, resulting in government of the Union dwindling into decay, or as Publius succinctly phrases it, "approaching nearly to annihilation" [30.3]. Government, without sufficient revenue, simply cannot "perform its most essential functions," making it necessary to find a more satisfactory means for procuring the needed revenue [30.2]. He is suggesting that the power to tax must be unlimited [30.3-4].

     Publius has already rejected the system of quotas and requisitions used by the Confederation to finance government. How then should the new national government be financed? The Framers propose to give to Congress the power to "raise its own revenues by the ordinary methods of taxation" [30.5], and hence they did not restrict the taxing power to some specific type of tax. That troubled some critics of the Constitution. Publius notes that "the more intelligent adversaries of the new Constitution admit the force of this reasoning, but they qualify their admission by a distinction between what they call internal and external taxation" [30.6]. By external, they have in mind customs duties on imported articles or what is called "commercial imposts." But such a restriction would limit the power of Congress to finance the national government. And Publius argues against any limitation on the power of Congress to tax. If the national government does not have an unlimited power to tax, if it is limited to imposts, "how can it undertake or execute any liberal or enlarged plans of public good?" [30.7].

     The discussion then moves to the threat to the Union if limitations are placed on the taxing power of the national government [30.9], particularly if faced with war. Publius begins to examine the extent of the borrowing power of the national government [30.10].

     [Historical Note: On December 31, 1787, Georgia became the forth state to ratify the proposed Constitution, 26 to 0.]

The Federalist No. 31; New-York Packet, January 1, 1788 - Hamilton

COMPETITION FOR REVENUE WOULD NOT DAMAGE THE STATES

     Publius begins this essay with an attempt to figure out why the antagonists to the Constitution seem so confused about the necessity of an unlimited power to tax by the national government [31.5]. Having harangued the critics of the Constitution in the preceding number with a torrent of rather angry words, he now sets forth an explanation for their mistakes, assuming that they are sincere [31.5]. The reason for the mistakes made by the critics of the Constitution seems to be that men often "do not give their own understandings fair play, but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties" [31.4]. Their caution leads them into "obstinacy, perverseness or disingenuity"; they simply refuse to follow sound demonstrations of truths available through the "sciences of morals and politics" [31.4]. Why? When compared to axiomatic reasoning generally, efforts at demonstrations in morals and politics are necessarily difficult, problematic and uncertain. Publius feels that "maxims in ethics and politics" [31.2] are conclusions drawn deductively from first principles, and in that regard they are somewhat like the axioms of geometry [31.1], though they lack, of course, anything like the same degree of certainty [31.3]. When we move from demonstrations in geometry to those "pursuits which stir up and put in motion the unruly passions of the human heart," we have moved into the arena of politics and ethics [31.3]. When dealing with these concerns, men are often found to be less open to persuasion than when dealing with "objects of geometrical inquiry" [30.3]. And, while the tendency to be "less tractable" in politics and moral matters is not always a bad thing, since it arms human beings against "error and imposition" [30.4], it is also a source of some difficulties and may degenerate into the "obstinacy, perverseness, or disingenuity" [30.4] that were mentioned earlier.

     Publius restates much of the preceding argument [31.6-8], providing a short summary of the positions he has already established. He undertakes a detailed refutation of one version of the complaint against the unlimited power to tax being vested in Congress [see 31.11]. The specific argument that he examines accepts much of what Publius has already set forth, but differs in that it holds that an unlimited power of taxation lodged in the national government would afford the temptation to take over the sources of revenue upon which the states rely, thus reducing their capacity to finance their own activities. The conclusion the critics reach is that the national government, with an unlimited power to tax and an equally unlimited appetite for revenues, will crowd out the states as they compete for funds. Publius responds by arguing, once again, that it is more likely that the states will encroach upon the national government [31.15; cf. 33.5], but admits that these kinds of "conjectures must be extremely vague and fallible" [31.16].

The Federalist No. 32;117 Independent Journal, January 2, 1788 - Hamilton

QUESTIONS CONCERNING TAXATION AND THE UNION continued

     Publius again takes up the question of the possibility of competition for revenue between the states and the national government. In order to show that the proposed Constitution will not create a situation which will harm the states, he explains the concept of concurrent jurisdiction of the states and national government over the taxing power [32.2, 4; cf. 34.11]. The only restrictions on the taxing power of the states will be (1) the prohibition on imposing imposts or customs duties on imports or exports or (2) on imposing what otherwise would amount to tariffs on articles in interstate commerce [32.3]. In all other instances the states are free to seek revenue through taxes as they please. "The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power" in which the states retain all powers not explicitly prohibited to them by the Constitution.

The Federalist No. 33; Independent Journal, January 2, 1788 - Hamilton

TAXATION AND THE SUPREMACY AND NECESSARY AND PROPER CLAUSES

     Publius ends this essay by asserting that concurrent jurisdiction over taxation is the only viable alternative to the complete subordination of the states to the national government [33.8]. He does not, at least in this essay, consider the possibility of a mandate in the Constitution dividing the taxing powers between the two jurisdictions, but he does approach that question elsewhere [see 34.10, for example]. His view clearly follows from his earlier views on two important, and also controversial, provisions of the constitution–the one making statutes passed by Congress the supreme law of the land (or what is called the "supremacy clause"), and the other authorizing Congress to enact all laws necessary and proper to carry into effect the enumerated powers vested (or what has often been called the "elastic clause") [see 33.4-7, for a discussion].

     In the context of an examination of the concurrent jurisdiction to the taxing power, Publius offers an explanation for both the presence and meaning of the supremacy and elastic clauses, about which there was, and still is, controversy. He suggests that the "national government, like every other, must judge, in the first instance, the proper exercise of its powers" [33.6]. But what if it is tempted or actually goes beyond its grant of powers?

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify [33.6; cf. 33.7].

There is no mention of judicial review (or the power of the Supreme Court) to set limits to the power of Congress by declaring acts contrary to the Constitution null and void, though this power is clearly mentioned as being available to the Courts in Federalist 78. There is, however, language in this essay indicating that some acts of Congress might turn out to be usurpations, contrary to the Constitution, and therefore unconstitutional [33.8]. Publius' language, in this essay, reads more like a version of the social contract doctrine found in the Declaration of Independence. It might be said to imply a "right," or, perhaps, the need, for the people to take back the powers which they have vested in government through the social contract, if a clear case of usurpation takes place. But no mechanism is described which would allow this to take place.

The Federalist No. 34; Independent Journal, January 5, 1788 - Hamilton

TAXATION, NATIONAL DEFENSE–LOOKING FORWARD TO REMOTE FUTURITY

     Publius now approaches the question of the taxing power by moving as far as possible from immediate considerations. He argues that constitutions should not be framed with an eye focused only upon the immediate exigencies facing the nation, but by looking "forward to remote futurity" [34.4]. Constituting a republic is thus "framing a government for posterity" [34.9].

     These considerations lead Publius to look forward to a time when the cloud hanging over Europe might "break forth into a storm" whose fury could touch America [34.5]. "No reasonable man would hastily pronounce that we are entirely out of its reach" [34.5].

     Such considerations introduce Publius' argument that in matters of most concern to the nation–those matters appropriately within the power of the nation–no limitations whatever ought to apply. Though some might be charmed by the idea of "tying up the hand of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations" [34.5]. Americans ought to remember "that war and peace will not always be left to our option" [34.5].

     With these and similar sentiments, Publius argues that it is wise and prudent to leave the national government entirely unhindered in providing for the national defense, as well as dealing with rebellions–"those two most mortal diseases of society" [34.6]. And this entails the necessity of an undiminished taxing power. From the perspective of Publius, it would be "the extreme of folly to...leave the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions" [34.4]. There should be no limitations–"even in imagination"–on the power or the means, that is, the necessary revenue, to deal with the threats of war or rebellion [34.9]. And there should be no constitutional limitation on the power to borrow, and hence incur debt, for the same reasons [34.7]. Of course, this will inevitably result in an "immense disproportion between the object of federal and state expenditures" [34.8]. But each element of the new federal amalgam has its appropriate place. And Publius maintains that the new Constitution has managed to reconcile "an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities" [34.11].

The Federalist No. 35; Independent Journal, January 5, 1788 - Hamilton

MISCELLANEOUS OBJECTIONS TO THE TAXING POWER ANSWERED

     In this essay, Publius continues his response to various criticisms of the taxing power vested in Congress by the proposed Constitution. Clearly, taxation is a major concern to the opponents of the new Constitution. They were concerned about the fate of the states under the new plan, so they insist that the taxing power needs to be limited, in order to preserve the dignity of the states. Publius responded to those concerns in the preceding essay. Now he shifts the discussion to the question of equity–the potential inequalities that would arise from the modes of taxation suggested by critics of the Constitution [see 35.2-4].

     Shifting his line of thought again, he takes up the complaint of critics that taxation under the proposed Constitution would be unfair because the House of Representatives is constituted in such a way that there is no assurance that every segment or class or interest in society would be represented [35.5-6]. Such a criticism rests on assumptions about representation that Publius flatly rejects. The theory at work behind the new plan is not one which insures that every narrow interest or class is represented in the legislature. Instead, the Founders tend to work with a theory that representatives would or at least should be chosen because of their special qualifications–wisdom, knowledge, honor, virtue. Such men, it is hoped, would be better able to deal with the issues facing the republic than the citizens if they were to be directly involved in the matter of legislation [see 35.6-12]. Publius does not set out a theory of representation in exactly those terms. What we have in this essay is something approaching a discussion of the merits of what is sometimes called virtual representation as opposed to the actual representation of all classes and interests that turn up in society.118

The Federalist No. 36; New-York Packet, January 8, 1788 - Hamilton

ADDITIONAL MISCELLANEOUS MATERIALS ON THE QUESTION OF TAXATION

     Publius ends the first half of The Federalist with an examination of the question of whether representation might touch on the power of taxation [36.1-3]. He also defends, what we have called, a theory of virtual representation. He holds that some classes of the community will tend to dominate the legislature, but that they "will truly represent all those different interests and views" [36.1].

     Once again, Publius sets out some of his objections to direct taxes [36.6]. He examines the question of the collection of taxes [36.7-15], and then ends up commenting on poll-taxes [36.16]. Though he is not personally in favor of them, he does not rule them out in principle, since they might fill some gap in an emergency. He wants the power to tax to be an unlimited means of achieving narrowly specified or enumerated, but entirely unlimited, objects. Clearly, much of the opposition to the proposed Constitution comes from those who have a profound fear of the taxing power in the hands of the legislative department of a national government. That fear may not be grounded in a misunderstanding of the intentions of the Framers, but it still may not be warranted, since the desire to constitute a national government empowered to act directly on the citizenry of the states, and not dependent upon quotas and requisitions may be sound. Hence, the explanation of the taxing power may be sound, even if unwarranted in the eyes of the anti-Constitution party.

     Finally, it should be noted that the concluding paragraph to this essay as it appears in the Chadwick and other editions of The Federalist is substantially different than the one that appears in some other editions. Some editions turn to the newspaper version and others to the version initially written as the conclusion to the union argument and which functioned as the general conclusion for the first volume of The Federalist. The conclusion to the first volume prepared by Hamilton which replaced the final paragraph of No. 36, reads as follows:

I have now gone through the examination of those powers proposed to be conferred upon the federal government; which relate more peculiarly to its energy, and to its efficiency for answering the great and primary object of union. There are others, which though omitted here, will in order to render the views of the subject more complete, be taken notice of under the next head of our enquiries. I flatter myself the progress already made will have sufficed to satisfy the candid and judicious part of the community, that some of the objections which have been most strenuously urged against the constitution, and which were most formidable in their first appearance, are not only destitute of substance, but if they had operated in the formation of the plan, would have rendered it incompetent to the great ends of public happiness and national prosperity. I equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government; and will leave no doubt with men of this character of the propriety and expediency of adopting it. Happy will it be for ourselves, and most honorable for human nature, if we have wisdom and virtue enough, to set so glorious an example to mankind!119

     In the version that originally appeared in the newspapers and from which the Chadwick edition was taken, Publius notes that he has "passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy" (36.17).

     Publius then grants that the power granted to the judiciary in the proposed Constitution "might have claimed a consideration" in this essay because he had been considering the warrant for the powers granted to the national government. He pleads, however, that it will be more advantageous for him to take up this issue in a following letter that will be specifically devoted to demonstrating that the proposed Constitution is sufficiently republican to warrant its approval.

CHAPTER FOUR

VOLUME TWO OF THE FEDERALIST

III. THE REPUBLICAN ARGUMENT (THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT) 120

     This portion of the Federalist contains the inquiry that Publius promises in his introduction into the question of whether the regime under the proposed Constitution will be sufficiently republican. Publius argues that when the true republican principles are properly set forth and understood, and the details of the new plan are also correctly understood, then it will be evident that the proposed regime will be republican.

     [Historical Note: On January 9, 1788, Connecticut became the fifth state to ratify the proposed Constitution, 128 to 40. Connecticut had called for a convention on October 17 and elected delegates on November 12, 1787.]

1. ON THE FRAMING OF THE CONSTITUTION–GENERAL INTRODUCTION

The Federalist No. 37; Daily Advertiser, January 11, 1788 - Madison

THE FRAMERS, THEIR INTENTIONS AND THEIR ACCOMPLISHMENTS

     Publius has already demonstrated that a new regime is necessary. That regime must flow from careful deliberation, in which those taking part have attained a clear understanding of the weaknesses that have traditionally afflicted republics. The new plan must contain improvement in the form of republican government that will permit the American people to avoid the weakness that plagued the government under the Articles of Confederation. Publius now turns to the question of whether the regime which is to flow from the proposed Constitution–a government which he previously had shown to need energy and stability–had been a product of sufficiently careful compromise and proper deliberation. Publius also must address the question of whether the government under the proposed Constitution will mingle, in due proportions, "energy and stability" with the "vital principles of liberty" [37.7] as required in a free and republican government. Previous attempts to constitute secure republican regimes were always flawed because too little attention had been given to the difficulty of mingling liberty and republican form with necessary energy and stability. The tensions between these two sides of the fundamental problems facing republican regimes must be confronted and resolved or the same stresses that have been the downfall of republics in the past will once again surface and destroy the noble experiment which Americans have undertaken. Attention must be given to both liberty and stability, as well as to the difficulty of mingling the two, or the resulting regime will not generate the necessary "repose and confidence in the minds of the people" [37.3], and it will inevitably fail.

     In looking back on the Convention, Publius reports that it achieved "many important changes and innovations," touching upon "the many springs of so many passions and interests," and yet those present found it possible to conduct their deliberations in a manner that was both fair and attentive to the merits of the issues before them. Faced with a situation which was universally admitted to be critical, aware that something had to be done, the Convention went about doing its job in an exemplary manner, manifesting the necessary spirit of moderation that makes possible attention to the public good rather than immediate interest.

     Publius recommends to those called upon to consider the new plan, that they approach the proposed Constitution "with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good" [37.3]. Deliberation on issues is rarely conducted with that spirit of moderation that is necessary if the public good is to be served. Unfortunately, the work of the Convention is viewed "not only with a predisposition to censure, but with a predetermination to condemn" [37.3]. Publius does not address his remarks to those who began "with a predisposition to censure," either because of some sinister motive or from an inability to face the "peculiarly critical" situation of the government under the Articles [37.3]. He writes, only with those in mind, "who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it" [37.3]. Then, following his own recommendation that the proposed Constitution be viewed in both the spirit of moderation and with candor, Publius grants that the plan devised by the Convention has faults; "a faultless plan was not to have been expected" [37.4].

     Next, Publius describes something of the "novelty of the undertaking" by the Convention [37.6]. The Framers had to plow new ground. They could consult the history of the petty republics of antiquity and of their federations. But these examples of republican governments provided, for the most part, only a dire "warning of the course to be shunned, without pointing out which ought to be pursued" [37.6]. This seems to be a way of granting that the tension between republican form and liberty, and the necessary energy and stability, is such that it is not an easy task to mingle those two requirements. Their intention, however, is to fashion a genuinely republican government. It would be one that combined "the requisite stability and energy" with the liberty of a free government and with proper republican form [37.7]. They believed that energy (sufficient power) "is essential to that security against external and internal danger" [37.7]. The problem that faced the Convention was finding the proper way of mingling these ends "together in their due proportions" [37.7].

     In order to accomplish that "mingling," the Convention has to confront and attempt to deal with the difficult question of what, exactly, constitutes a republic. What are the true republican principles and what is republican liberty? "The genius of republican liberty seems to demand on the one side," Publius indicates, "that all power should be derived from the people, but those intrusted with it should be kept in dependence on the people, by a short duration of their appointments." The word "seems" signals an equivocation, for it only "seems" or appears that way on the surface. The statement presented by Publius only "seems" to be an adequate description of what constitutes a republic, but it is not quite correct. A careful reading of Publius's statement discloses that it contains an intentional equivocation.

     Publius will later insist on a due dependence on the people [see, for example, 77.11], which is to say that a simple or direct dependence has been abandoned as inconsistent with the necessary energy and stability of a republican regime. Such qualifications are important, for they generate a regime that permits the energy and stability that the preliminary definition of what constitutes a republic would not permit. In earlier and less adequate understandings of republican principles, a dependence on the people was required that is direct and immediate, rather than indirect and mediated.

     Publius therefore rejects the demand so often heard for what some called a "short duration" in the appointments of elected officials. (See the discussion, for example, in Federalist 71 and 72.) In this instance, however, Publius points out that both stability and energy require that authority be conferred for a length of time–"a certain duration of power" [37.8], as he calls it, and that execution be placed in a single hand. Here Publius discloses a Constitution grounded on a rather unique understanding of republican principles. And it is at this point that we can begin to see something of the strategy being worked out by Publius for dealing with the two sides of the republican equation that had been mentioned at the beginning of this essay. Liberty requires a due dependence on the people. Energy and stability also make their demands. And finding the best possible way of mingling these two demands is the very difficult task that faces the Convention.

     Publius also grants the novelty of the treatment of what he rather blandly calls the "general" government and the governments of the various States [see 37.10]. At this point, however, he is still not entirely ready to reveal that the Framers were actually ardent nationalists who had fundamentally altered the older understanding of federations, and who were intent on creating a new and great general or national government in their effort to constitute a "more perfect Union." One aspect of the novelty in the new plan, though it is mentioned in general terms in Federalist 37 [see 37.6] and elsewhere, is not fully disclosed until Federalist 39. There, it is revealed that what has been created for the United States is a government that is partly federal, but also partly national [39.18]–a compound republic.

     In Federalist 37, Publius is busy celebrating–what for him is a truly wonderful event–the American Founding. But all of what is said is certainly implied in the earlier discussions of the necessity and advantages of the "enlargement of the orbit" of republican government as a necessary and proper cure for the threat of domestic faction and insurrection [9.1, 4]. In the idea of an extended republic "we behold a republican remedy for the diseases most incident to republican government" [10.36]. The Founding, it is claimed, was the work of a group of men, and not that of a single even glorious individual Legislator, which was the traditional pattern for the work of Law-givers or Founders. Publius grants that the Constitution is set forth in language which is somewhat ambiguous. He describes how all new laws must have their meaning uncovered and fixed by later discussions and adjudications. He foresees that same process going on with the new Constitution to settle matters that are of necessity at the beginning obscure, vague or ambiguous. And he will later argue that, if there have been mistakes in the drafting of the new Constitution, and there undoubtedly have been, those flaws can be corrected after they have been revealed by experience under the new regime.

     What is simply amassing and wonderful, even miraculous, for Publius, is that the Convention was able to come to any kind of agreement, and especially to the kind of agreement that they reached. In the deliberations that yielded the new Constitution, we behold the fruits of moderation and candor that are now necessary for a just estimate of the plan for the new regime. The group that met in Philadelphia, according to Publius, came to the Convention with a variety of opinions, as well as competing interests; it faced enormous obstacles. "The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible," according to Publius, "for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for a man of pious reflection"–we might add, such as Madison himself– "not to perceive in it a finger of that Almighty hand which has been so frequently and singly extended to our relief in the critical stages of the revolution" [37.16].

     Publius draws special attention to the obstacles that confront groups when they meet to pursue the public good [37.17]. They frequently are not moved by "that spirit of moderation which is essential to a just estimate" of the tendency of measures "to advance or obstruct the public good" [37.3]. "The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character" [37.17]. Only here and there are there glimmers of successful deliberations or consultations that worked for the public good. Certain virtues of a rather high order are necessary for successful deliberations. What has justly been called "The Miracle at Philadelphia," according to Publius, was possible precisely because somehow or other those who gathered there "must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities–the disease most incident to deliberative bodies, and most apt to contaminate their proceedings" [37.17]. Those at Philadelphia somehow worked with "deep conviction of the necessity of sacrificing private opinion and partial interests to the public good" [37.17], which may have been fostered by a despair at the prospects of delays, given the crisis that faced the Union.

The Federalist No. 38; Independent Journal, January 12, 1788 - Madison

THE PLACE OF LAW-GIVERS IN THE FOUNDING OF REPUBLICS

     In Federalist 37, Publius mentions "enlightened legislators and jurists" [37.12]. This brings to mind the venerable tradition that the great and small political regimes of the ancient world were founded by unusually gifted men. The most obvious exemplars of these legendary Law-givers–at least those with which we are most familiar–are Moses and Jesus (the "New Moses"). Law-givers traditionally did not consult the people to whom they gave law, although the people consented to the laws that were revealed through these Law-givers. What marks the difference between the American Founding and those much older, legendary accounts of founding Legislators is that the new American republic will be constituted by a deliberative body of virtuous and wise men meeting in a convention for the express purpose of "establishing good government by reflection and choice" [1.2]. In the past, even when a government was constituted "with deliberation and consent, the task, of framing it has not been [previously] committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity" [38.1]. The American Founding is distinguished from other previous efforts to found a republic with or without deliberation and reflection by being the work of a group and not merely that of a single gifted individual.

     Presumably, to forcefully make this point, Publius mentions one Minos–the legendary Law-giver of Crete. In one account, Minos was said to have spent seven years in the Cave of Zeus, or in another account, or to have visited with that God every year for seven years. Publius also mentions other legendary Legislators. Why?

     The reasons for the strange references to legendary Legislators are complex. For one thing, it is not at all clear that ancient Legislators had or even claimed to have had what Publius describes as "legitimate authority of the people" to do what they did [37.3]. Some may have, others obviously did not [38.4]. Though without legal authority, they acted well, even when they acted irregularly, or acted without proper prior authorization. Presumably, this discussion of the legal authorization for ancient legendary Law-givers, has a bearing on the question of whether the Philadelphia Convention acted well or even acted legally in scraping the Articles of Confederation and moving directly–and quite contrary to the warrants of the delegates sent by the States to Philadelphia–to replace the Articles with an entirely new constitution, rather than merely amend, which is what they were clearly authorized to do.

     A further legal difficulty faced the proposed Constitution: The entire process by which the new plan was ratified was in clear violation of the Articles of Confederation–the existing law on the matter. The Articles which required (1) unanimous consent of all thirteen States, acting through their legislatures, and (2) certainly not ratification of proposed amendments through special conventions called to consider the question of ratification, with only nine States required to put the new regime into place.

     Why would a people, who in Publius's terms might be thought as jealous of their liberties as were the ancient Greeks at the time of Minos, turn the fate of their republic over to a convention of men? They were obviously not about to ask a single figure, no matter how well qualified–to act as their Legislator and Founder. But why would they turn to a group of men, such as those who met in Philadelphia? Perhaps the obvious perils faced by the American republic demanded that they turn somewhere, even if there were some irregularities in what this group of men did who met in Philadelphia in the summer of 1787. In that regard, the American people were not entirely unlike the ancients, except that their greater enlightenment and virtue spared the Founders from making use of the artifices used by other legendary Legislators. In the past, a gifted individual did the work of founding in such a way that it provided that a government in one instance was "best suited to their happiness, but most tolerable to their prejudices" [38.4]; while in another instance the Law-giver, "more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition," in order to get the job done, he then renounced both his country and his life [38.4]. Publius notes that "if these lessons teach us" anything, it should be "to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government," even if what was done was strictly legal under the Articles of Confederation, which was the existing legal authority. These comparisons should also serve "to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them" [38.4], which the adversaries of the proposed Constitution recommended by demanding even more deliberation in additional conventions designed to further perfect the proposed plan.

     Later, after listing more than twenty objections to the proposed Constitution by it adversaries [38.7 & 8], and after granting that the plan as proposed by the Philadelphia Convention is flawed [38.5], Publius asks whether the American people should wait until another, a less flawed if not perfect plan were to be brought forward? But who exactly is authorized to convene a new convention? The suggestion that a new convention be called to correct the alleged mistakes of the previous convention is "without the least color of constitutional authority" [38.12]. This seems to imply that the actions of the Philadelphia Convention, while not entirely regular, had at least some color of constitutional authority, and a great deal of practical wisdom, given the exigencies of the situation in which the government under the Articles of Confederation found itself. And Publius thereby turns the argument about the legality of the proposed Constitution against the adversaries to the proposed Constitution. It is their demands for more deliberation that are seen as strictly irregular. After all, Congress has gone along with the work of the Philadelphia Convention by submitting the new plan to the voice of the people speaking through special ratification conventions in the States. Publius disposes of the questions that had been raised by some concerning the legality of the proposed Constitution by placing the blame, or at least the responsibility on Congress, and then by justifying the course that they pursued in acquiescing to changes recommended by the Philadelphia Convention in the ratification process for the proposed new plan of government. "The public interest, the necessity of the case," Publius argues, "imposed upon them the task of overleaping their constitutional limits" [38.13]. And presumably that was true also for the Philadelphia Convention, which went right to work drafting a new constitution and not, as they were seemingly authorized to do, merely draft amendments to improve the old Articles of Confederation. A much more detailed apology for the legality of the proposed Constitution is undertaken in Federalist 40, where Publius, among other things, defends the legality of the decision of the Convention to scrap the Articles of Confederation and move directly to business of framing a new Constitution.

     The Founders, Publius argues, were Legislators or Law-givers, acting in a venerable tradition. They were also men of vast experience and high purpose, men of both rare wisdom and virtue who avoided the difficulties that have generally beset attempts to set forth the laws for the constitution of republics. Unlike the legendary figures associated with the founding of ancient regimes, the American Founders crafted a Constitution that, though still admittedly imperfect, offers a remedy "capable of administering relief" [38.6] for the "malady" [38.7] that afflicts the people under the Articles of Confederation. Here again Publius makes powerful use of the medical analogy employed here and there in The Federalist, especially where he has insisted on the need for a "cure" to the "disease most incident to republican government," that is, factional politics [10.2, 7 & 36]. Publius constantly talks about diseases and their cures or remedies in The Federalist [see, for example, 14.1; 21.1; 34.6; 37.17; 50.9; 61.4; 62.7]. And the difficulties in the new plan, which come from lack of experience in such matters, and hence from the novelty of the endeavor, will be discovered and hopefully corrected in time, but only on the basis of concrete experience with the new regime [38.5].

     Attention should be given to the long list of objections–there are more than twenty that Publius lists–that were being advanced in the newspapers and in the ratifying conventions made by the adversaries of the proposed Constitution to various features of the new plan [see 38.7 & 8]. This list provides something of an thematic outline for the remainder of The Federalist, much of which is an effort to respond to each of these objections, though not in the order in which they are listed by Publius.

     It is also noteworthy that, in several places in this essay, Publius addresses the complaint that the proposed Constitution has intermixed the powers of government–legislative, executive and judiciary–"in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty" [38.7], or in such a way as to constitute "an unpardonable violation of the maxims of republican jealousy" [38.8]. "Is it," Publius eventually asks, "improper and unsafe to intermix the different powers of government in the same body of men?" [38.10]. It may come as something of a shock to students of American politics to discover that Publius was anxious to defend the mixing and blending of powers accomplished by the Philadelphia Convention in the new plan. We have been taught that the Founders separated and divided them. Though there is some truth to that view, it is clearly an oversimplification and rests on a confusion about specific constitution doctrines such as separation of powers and checks and balances, and such confusion over the intentions of the Founders and the meaning of their endeavors flows from inattention to what was done and said by them, as well as their adversaries. The correction to the vulgar misunderstanding of separation of powers must wait, however, until we reach Federalist 47, where Publius begins to take up and clarify that maxim of republican liberty and the question of what exactly constitutes liberty in "a well constituted republic."

     It should also be pointed out that Publius often takes something approaching delight in pointing to the inconsistencies and even contradictions in the arguments of the adversaries to the Constitution. The critics can agree among themselves on virtually nothing. For example, they complained because the proposed Constitution lacked a certain feature, or provided for some institution. But it often turned out that the Constitution was imitating the State constitutions which they presumably fully supported. This essay contains some instances of such relishing, if that is what it ought to be called, over the confusions and inconsistencies in the objections brought forward by the adversaries of the Constitution. See, for example, the response of Publius to critics who complained because the new plan lacked a bill of rights, and yet who failed to notice that the Articles of Confederation also lacks such a bill [38.10].

The Federalist No. 39; Independent Journal, January 16, 1788 - Madison

THE NEW AND TRUE REPUBLICAN PRINCIPLES; AND NEW FEDERAL UNION

     The Federalist, as we have seen, is divided between two large inquiries: the first one–what has been called "the Union Argument–is now essentially completed; since the government under the Articles was shown to be inadequate to achieve public safety and prosperity, the second inquiry concerns the republican credentials of the new regime. "Is the general form and aspect of the government [to be initiated under the proposed Constitution] strictly republican"? [39.1]. Publius argues that the new government will be seen to be sufficiently republican, when the principles of republican government are properly understood. And in the last half of this essay, he also argues that the government under the proposed Constitution will not be mere consolidation of the states, since it will preserve something of "the federal form," while at the same time it creates for the citizens of the United States a genuinely national republic; the general government will thus be both "partly federal and partly national" [39.18].

     The only form of government that "would be reconcilable with the genius of the people of America; with the fundamental principles of the [American] Revolution; or with the honorable determination which animates every votary of freedom" would be a strictly republican government. "If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible" [39.2]. In order to determine whether the new government will be strictly republican, it will be necessary to compare the provisions of the Constitution with republican principles. "What, then, are the distinctive characters of the republican form?" [39.3]. One way of deciding that question would be to consult the "application of the term by political writers, to the constitutions of different States..." [39.3]. But that would not provide a satisfactory answer to the question. The reason is that different writers have used one word to mean different things, and a number of quite different regimes have been called "republican" by various writers. Such fundamentally different governments have been called "republican," that attempting to determine whether the government under the proposed Constitution is strictly republican by drawing upon examples of the use of the term would be risky. Publius claims that the examples which he cites "show the extreme inaccuracy with which the term has been used in political disquisitions" [39.3].

     Another way to decide the question would be to "resort for a criterion [of what constitutes a strictly republican government] to the different principles on which different forms of government are established..." [39.4]. When that is done "we may define a republic to be, or at least may bestow that name on, [1] a government which derives all its powers directly or indirectly from the great body of the people, and [2] is administered by persons holding their offices during pleasure, for a limited period, or during good behavior" [39.4]. It should be noticed that the preliminary definition provided by Publius contains two elements. It is a reasonably good definition of a republic, but it is not fully accurate: it will need some qualification.

     This initial or preliminary definition of a republic allows Publius to distinguish a democratic from an aristocratic republic, or to apply the label "republic" to what will turn out to be a democratic and representative republic, while denying that to apply the label to any other variety of popular government is warranted. "It is essential to such a [republican] government," according to Publius, "that it be derived from the great body of society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic" [39.6]. What is essential for a republic, is not necessarily sufficient. Water may be necessary for life, but it is not sufficient for sustaining it. Something other than water must be present in order for there to be life. What is sufficient for a government to be republican? "It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointment by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character" [39.6].

     Publius wants to defend public officials holding their tenure of office indirectly from the people. In "every State there in the Union, some or other of the officers of government are appointed indirectly only by the people" [39.6]. Since those governments must be considered republican, it follows that the new general government, which will have public officials holding office indirectly, is sufficiently republican. And, in addition, many of those officials hold office both indirectly and for a number of years [39.6]. This is especially true of judges in the judiciary departments of state governments. And it would be true of officials in both the judicial and executive departments who will, much like the states, hold office during good behavior.

     What remains of the preliminary definition of a republic is the first element, namely that it is "a government which derives all its powers directly or indirectly from the people" [39.4], but we have been shown by Publius that it is not at all necessary that public officials be directly appointed by the people or that they hold office only for a limited period. With these matters out of the way, it is possible for Publius to begin to compare "the Constitution planned by the convention with the standard here fixed" and, when that it done, it is obvious "that it is, in the most rigid sense, conformable to it" [39.7]. He lists a number of ways in which it conforms to the "accurate" definition of a republic which he has just fashioned. They include the following:

     [1] "The House of Representatives, like that of one branch of all the State legislature, is elected immediately by the great body of the people."

     [2] "The Senate, like the present Congress [under the Articles of Confederation], and the Senate of Maryland, derives its appointment indirectly from the people."

     [3] "The President is indirectly derived from the choice of the people, according to the example in most of the States."

     [4] "Even the judges with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves" [39.7].

     [5] But the final proof that the new regime will be strictly republican, and not an oligarchy of some form, is to be found in the "absolute prohibition on titles of nobility, both under the federal and State governments, and in...the express guaranty of the republican form to each of the later" [39.8].

     Publius then takes up the objection brought against the proposed Constitution that it failed to preserve the proper "federal form" because the Union ought to be a "Confederacy of sovereign states" [39.9]. The critics complain that the Constitution "formed a national government, which regards the Union as a consolidation of the States" [39.9]. Publius proposes "to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority" [39.10]. The first question is taken up in Federalist 39, while in Federalist 40 the second [see 40.1-15] and third [see 40.16-23] questions are examined.

     Publius does not attempt to examine the question of "the accuracy of the distinction" between a consolidation and a confederacy (or league) [39.10]. He seems willing to grant that the critics of the Constitution have gotten that matter right. But to admit that, is not to grant that the critics are right in charging that the new plan will fail to retain any semblance of the old league or federation of sovereign states, but will provide, instead, for a new general government that will be entirely or exclusively national, and hence a consolidation. The apologists for the Constitution did not normally adopt the term "consolidation" as a proper description of the national republic which had fashioned by the Framers in Philadelphia. Though the word "consolidation" does appear eight times in The Federalist, most of the time it is used to identify the charge made by critics of the new plan. When dealing with the complaints of the critics, most often Publius substitutes for the word "consolidation" the less potent or repugnant term "national" to describe the "general" government of the Union. Currently, what was called the general or national government, in The Federalist, we usually call "federal." And we commonly mean by "federal" an arrangement in which power is divided between the national and state governments. But that is not what the word meant in 1787. A federation was a defensive alliance or league of sovereign states, with a congress of representatives of the states. Hence the words federation, confederation or simple league were roughly equivalent.

     Publius simply cannot claim that the Union, under the proposed Constitution, will be merely a confederation or league of sovereign states, and federal in that sense. And he has no reason to do that, for the Constitution he is defending has obviously fundamentally altered the old Union by making it a more perfect one. The best that he can do is to show that the Framers retained some remnants of the old Union, and hence the charge that they have consolidated the government is false because it is an exaggeration.

     In an effort to show that the Constitution retains some ingredients of the Confederation, Publius maintains that the act of ratification "will not be a national, but a federal one" [39.12]. The ratification and ascent of the people will be "given by deputies elected for the special purpose," but they will ratify "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong" [39.12]. What that means, according to Publius, is that the new Constitution will be ratified by the "supreme authority in each State,–the authority of the people themselves" [39.12], and the ascent of the people will not be by the people already "forming one aggregate nation" [39.13]. If the American people had been considered as constituting a single entity, ratification would have taken place when a majority of the people had given their ascent. But ratification requires the ascent of the people in states; "it must result from the unanimous assent of the several States that are parties to it" [39.13]. "Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act" [39.13].

     Though the House of Representatives will represent the people directly, the Senate will represent the states, being elected by their legislatures and representing the states equally [39.14]. "From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features" [39.14].

     Publius grants that the government under the proposed Constitution will be able to act directly "on the individual citizens composing the nation, in their individual capacities" [39.15]. That makes of it a national and not a federal government, though he does grant that it still retains a federal blemish in that the states will be considered separate sovereign entities in controversies in which they have a part. "But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it...a national government" [39.15].

     Publius insists that in its operation the new government of the United States will be national and not federal. "The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government" [39.16]. If the new government actually was a consolidation, then supremacy would have been "completely vested in the national legislature" [39.16]. But power, under the proposed Constitution, has been divided between the national and state legislatures, and there it forms "distinct and independent portions of the supremacy" [39.16]. And the national legislature does not have all legislative authority, since its powers extend only to certain "enumerated objects only," while the states retain "a residuary and inviolable sovereignty over all other objects" [39.16]. Publius counts this as a federal, rather than a national, feature of the new government. And finally, in the matter of amendments, the new government appears to be "neither wholly national nor wholly federal" [39.17], since it partakes of both. Publius summarizes his finding concerning the question of whether the new government will be federal or national in the following way: "The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national" [39.18].

The Federalist No. 40; New-York Packet, January 18, 1788 - Madison

ON THE AUTHORITY AND LEGALITY OF THE WORK OF THE FRAMERS

     The proposed Constitution was written by men both competent and properly authorized to "frame a national government, adequate to the exigencies of government, and of the Union..." [40.8]. Publius begins with the second question in his list of items mentioned earlier [see 39.10]. This essay therefore deals more or less with the question of the legality of the actions of the Philadelphia Convention [40.1-15], but also with the question of whether the Framers served their country well, even if they somehow exceeded the legal limits of the warrants which took them to Philadelphia [40.16-23]. Publius begins by asserting that the Framers did not exceed their warrant or powers. Since, in Federalist 39, he admitted that the new plan was not merely federal, but partly national, the question of the legality, as well as propriety, of the proceedings that framed it remains an issue. Had the Philadelphia Convention, Publius asks, really been "authorized to frame and propose this mixed Constitution?" [40.1]. Presumably, if the Convention had merely proposed amendments to the Articles of Confederation, it would not have drafted what Publius now calls a "mixed Constitution." The new plan is not strictly federal; the Framers moved beyond the orbit of the traditional understanding of confederations or leagues, by fashioning a national republican regime. Hence it is a mixture of federal and national elements, and for that reason Publius labels it a "mixed Constitution."

     "The sum of what has been here advanced and proved is," according to Publius, "that the charge against the [Constitutional] convention of exceeding their powers...has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assumed" [40.23]. This would seem to be a tacit admission that the Philadelphia Convention had gone beyond its warrant in proposing the Constitution rather than merely amending the old Articles of Confederation. Publius defends such an action. It the Convention "had violated their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the view and happiness of the people of America," and then he shifts to a consideration of the details of the new plan.

2. ON THE EXTENT OF POWER VESTED IN THE NEW REPUBLICAN GOVERNMENT

The Federalist No. 41; Independent Journal, January 19, 1788 - Madison

THE POWERS CONFERRED ON THE NATIONAL GOVERNMENT (ARMIES, TAXATION, AND THE GENERAL WELFARE CLAUSES)

     Publius distinguishes between the question of the "sum or quantity of power" to be vested in the new national government, which includes also the restrictions placed thereby on the power of the States, and the "particular structure of the government, and the distribution of this power among its several branches" [41.1]. In this essay, Publius addresses a portion of the first category, that is, he inquires into the specific grant of power to be vested in the proposed national government. Before he can take up that matter, however, he must first consider "whether any part of the power transferred to the general [national] government" is proper or improper [41.2]. And then he must consider whether those powers vested in the national government are dangerous to "the portion of jurisdiction left in the several States" [41.2].

     Publius holds that objections to "the extensive powers" granted to the national government are not based on a serious consideration of whether such a grant of powers was a "necessary means of attaining a necessary end" [41.4]. The critics concentrate, instead, "on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made" [41.4]. Publius intimates that the strategy of his adversaries has been adopted by the critics of the new plan of government for a number of reasons, some of which were not entirely respectable. Such a strategy allows the adversaries of the Constitution an opportunity to "display the subtlety of the writer; it may open a boundless field for rhetoric and declamation, it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking; but cool and candid people will at once reflect, that the purest of human blessings" must carry with them some mixture of base things [41.4]. The choice, therefore, must be, if not exactly the lesser evil, at least something like the greater good.

     In order to make that kind of judgement we must, according the Publius, first get clear on the ends for which powers are to be granted to the national government. Only then will we be properly situated to make an informed judgement on the inevitable risks involved with such a vesting of power [41.5]. Publius then proposes a list of the different objects for which a grant of power must be made to the national government. The list [see 41.5], which provides an outline of this and the following three essays, is as follows:

          "1. Security against foreign danger [which is examined in this essay];

          2. Regulation of the intercourse with foreign nations [examined in Federalist 42];

          3. Maintenance of harmony and proper intercourse among the States [examined in Federalist 42];

          4. Certain miscellaneous objects of general utility [also examined in Federalist 43];

          5. Restraint of the States from certain injurious acts [examined in Federalist 44];

          6. Provisions for giving due efficacy to all these powers" [also examined in Federalist 44].

     What follows in this essay is the attempt of Publius to address the first of items on his list. He offers justifications for placing the necessary military power in the hands of the national government. When the question of vesting powers in the national government is examined in a careful and methodical manner, the objections of the adversaries to the proposed Constitution, at least on this ground, seem quite frivolous. The reason is obvious. Clearly the national government must be empowered to declare war [41.6]. The reason is that "security against foreign danger is one of the primitive objectives of civil society" [41.7]. But can such a power be unrestrained? Publius responds by asking whether "the force necessary for defence be limited by those who cannot limit the force of offence?" [41.11]. Hence, "if one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within reach of its enterprises to take corresponding measures" [41.12].

     Publius confronts the threats posed to the republic by a "military establishment" [41.14], that is, the possibility that the United States may eventually have to pay the price, like others have before, "of her military establishments. A standing force, therefore, is a dangerous, and at the same time that it may be a necessary, provision" [41.13 cf. his remarks about "military establishments" at 45.9; 46.14]. But such a necessary establishment of miliary power cannot be dangerous, Publius holds, as long as Americans "continue a united people" [41.15].

      On the other hand, those opposed to the new government "will present liberty everywhere crushed between standing armies and perpetual taxes" [41.15], and in that way they strive to stir up animosity toward the Constitution. But, whatever the threat posed by a military establishment, the more serious threat is disunion [41.15 & 16].

     Publius once again justifies the necessity for standing armies [41.17-19] and a permanent navy [41.23] against the concerns of the critics. He insists that the power to provide for the national defense cannot reasonably be expected to amount to an unlimited commission of authority to abolish freedom of the press or the trial by jury and so forth [41.24 & 25]. The powers of the national government to provide security against foreign danger are extensive but they are not unlimited [41.26 & 27].

     [Historical Note: On January 19, 1788, the legislature of South Carolina called a convention to consider ratification of the proposed Constitution. Delegates were elected on April 11-12, 1788.]

The Federalist No. 42; New-York Packet, January 22, 1788 - Madison

ADDITIONAL WARRANTED NATIONAL POWERS (FOREIGN RELATIONS AND OTHER PROVISIONS OF ARTICLES I, SECTION 8)

     Publius now takes up items two and three in the list provided earlier [41.5] of powers that ought to be vested in the national government. He examines in some detail the question of the propriety of vesting in the national government, which is still occasionally called "the general government" [42.1], the regulation of the all intercourse with foreign nations. This authorization includes the power to make treaties, send and receive ambassadors and other diplomatic officers, to regulate commerce with foreign nations, and to punish piracies and other felonies on the high seas [42.3-6]. The specific locus for these powers in the national government and the arrangement of those powers are questions that are debated extensively later–see Federalist 75, for example.

     Publius also tackles the difficult question of slavery in this essay [42.7-8]. He declares that it is "doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it has been suffered [that is, allowed] to have immediate operation" [42.7]. But the reasons for this obvious compromise with principle rest on the need for an accommodation with interests in the Southern States. He describes the traffic in slaves as a "barbarism of modern policy," and notes that "happy would it be for the unfortunate Africans, if an equal protection lay before them of being redeemed from the oppressions of their European brethren!" [42.7]. Publius denies that the unfortunately principle-compromising provisions of the proposed Constitution, with respect to slavery, amount to "a criminal toleration of an illicit practice" [42.8]. He brushes this argument aside as an instance of misrepresentation of the intent of the Framers.

     Publius then shifts subjects–taking up item number three in the earlier list [41.6]. He examines the power vested in the national government by the new Constitution "to regulate commerce among the several States" [42.11]. The lack of such a power was a principal defect of the government under the Articles of Confederation. Under the Articles of Confederation the States were both authorized and interested in obstructing the free exchange of goods. And hence the granting of the power to regulate commerce is a key element in fashioning a vast and prosperous commercial republic.

     Certain other powers vested in the national government are explained and justified in this essay, including the rules to govern naturalization. This provision in the new plan was intended to provide a national citizenship by extending the privileges and immunities of free citizens of any State to all other States.

The Federalist No. 43; Independent Journal, January 23, 1788 - Madison

OTHER ADDITIONAL WARRANTED NATIONAL POWERS

     Publius now takes up what he describes as "miscellaneous powers of general utility" [43.5] or just plain "miscellaneous powers" [43.1]. What follows is a long catalogue of various powers vested in the national government. Publius also includes explanations of the functions, as well as a justifications, for these miscellaneous powers being placed within the scope of power appropriately placed in the national repository.

     Woven into this catalogue of national powers are some asides of theoretical significance. For example, in his treatment of the power to punish treason [43.8], Publius mentions that there are now "new-fangled and artificial treasons [that] have been the great engines by which violent factions, the natural offspring of free government, have usually wrecked their alternate malignity on each other" [43.8]. That language, reminiscent of language in Federalist 10, constitutes part of Publius' explanation for why a constitutional definition of treason is inserted in the proposed Constitution.

     Publius also argues that, since "a right implies a remedy" [43.14], "a confederacy founded on republican principles"–the league of States–needs some device to present the States from slipping into either aristocracy or monarchy [43.14]. The new Constitution supplies such a guarantee. In addition, the power vested in the national government to protect against domestic violence also offers a safeguard against the actions of "illicit combinations" which, for the sake of their own interest, may be inclined to violence [43.17]. Publius cautions that this safeguard is not likely to be used often because "the existence of a right to interpose, will generally prevent the necessity of exerting it" [43.17].

     Publius also pictures the national government as potentially a kind of umpire, which stands ready to protect the States from the evils of faction, with more or less the "impartiality of judges" [43.19].

The Federalist No. 44; New-York Packet, January 25, 1788 - Madison

RESTRAINTS ON THE AUTHORITY OF THE STATES AND A DEFENSE OF THE "NECESSARY AND PROPER" AND "SUPREMACY" CLAUSES

     Publius includes within the category of powers appropriately vested in the national government–his fifth item in 41.5–certain restraints upon the States, which are intended to prevent them "from certain injurious acts" [41.5]. That category of national "power" is taken up in this essay. Instead of a grant of power to the States, this category of powers functions as restraints or constitutional limitations upon the States. But without some mechanism for enforcement, these restraints can have no real efficacy. So it appears that though they are, from one point of view at least, limitations on the States, they are also legal restraints backed by sanctions and hence they may be appropriately listed among the powers vested in the national government. At this point Publius has set forth the principles behind the division of powers in the proposed Constitution between the general government and the States.

     At the very beginning of the essay, Publius mentions that the States are prohibited from passing bills of attainder, ex post facto laws, of impairing the obligations of contracts, of granting titles of nobility and so forth [see 44.2, 7]. Some of these desirable restraints of republican government were already present in some of the State constitutions, Publius notes, "and all of them are prohibited by the spirit and scope of these fundamental charters" [44.7]. Why then, it might be asked, is an additional safeguard necessary? The reason is that "our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, the Convention added this constitutional bulwark in favor of personal security and private rights" [44.7]

     But, given what Publius will argue in Federalist 48 about the uselessness of what he calls "parchment barriers' [48.3, 19], are we not justified in asking what mechanism has been set in place to insure that these protections will have some efficacy? One might assume, knowing what is said in Federalist 78, where it is argued that the national judicature, including the Supreme Court of the United States, will necessarily have the power to strike down legislation that conflicts with the Constitution, that is, has implicitly the power of judicial review, to find in this essay some mention of the role of the national system of courts in securing the constitutional guarantees of liberties that Publius has just set forth. But that matter is not addressed or is postponed for later consideration.

     Publius also sets forth and defends the so-called "elastic clause" in the proposed Constitution (Article I, Section 8) which gives the Congress the power to pass legislation that is "necessary and proper for carrying into execution the forgoing powers" which are the enumerated powers given to Congress. Publius argues that "without the substance of this power, the whole Constitution would be a dead letter" [44.12]. Given the practical impossibility of stipulating exactly all the necessary powers in detail and in advance, some such provision is absolutely necessary. Any attempt to spell out in detail the particular manner of implementing the grant of power to Congress in the Constitution would involve a "complete digest of laws on every subject to which the Constitution relates" [44.15], but that would not allow the flexibility necessary for accommodating to the unforseen possibilities in the future.

     The way the Convention determined to deal with this problem was to list the specific general powers that seemed appropriate for Congress to possess, and then place some broadening language in the document that would not throttle Congress when it set about to implement the delegated or enumerated powers. The "elastic clause" is that language. Of course, there were other possibilities. They might have remained silent and allowed the matter to come forth as a logical inference by, as Publius says, "leaving these necessary and proper powers to construction and interpretation" [44.13]. That is exactly what they presumably did with judicial review. But that is also a risky procedure.

The Federalist No. 45; Independent Journal, January 26, 1788 - Madison

THE SCALE BETWEEN THE NATIONAL AND STATE GOVERNMENTS

     Now that Publius has set forth and defended the grant of power to the national government, the next question he examines is "whether the whole mass of them will be dangerous to the portion of authority left in the several States" [45.1]. Would the powers vested in the national government somehow threaten the legitimate authority of the States? Publius assures his readers that only those powers were vested in the national government that were considered "absolutely necessary" [45.2]. And hence the national government is not empowered in such a way that it can challenge or interfere with the legitimate authority of the States.

     The adversaries of the Constitution, Publius claims, "have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States" [45.2]. Publius rejects this line of inquiry. The reason being that "if the Union, as has been shown, be essential to the security of the people of American against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate [or diminish or reduce] from the importance of the governments of the individual States" [45.2]. But Publius also grants that if, in some final analysis, it were to come down to a contest between the station of the States and the national government, "let the former be sacrificed to the latter" [45.2]. The truth is that some sacrifice of the status of the States is necessary. The question that remains is just "how far the unsacrificed residue will be endangered" [45.2].

     In line with the position advanced earlier in The Federalist, Publius argues that the threat to the Union, even given the enhancement to the powers of the national government as set forth in the new Constitution, will come from the States. The residual or police power, or the power to protect the public health, safety and welfare [as described in 45.12 under a different label] will still make the States the center of political gravity. One of the reasons this is true, according to Publius, is that the powers vested in "the federal government are few and defined." While the residual powers left with the States "are numerous and indefinite" [45.12]. The only real addition to the power of the federal government in the proposed Constitution is the power to regulate commerce [45.14]. The remainder of the powers vested in the national government are merely "the invigoration of its ORIGINAL powers" [45.14].

The Federalist No. 46; New-York Packet, January 29, 1788 - Madison

THE STATES AS A BULWARK AGAINST NATIONAL EXCESSES

     Publius once again argues that the States will have the advantage of the primary loyalty of the people [for other treatments of the question, see 46.5, for example]. He complains that those who fear the encroachments of the national government have somehow "lost sight of the people altogether in their reasonings of this subject," and tend to view the States and national government "not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other" [46.2]. They seem to forget that the ultimate authority resides in the people, and hence it is to the people that one must look for a check on those eager enlarge the sphere of either at the expense of the other [46.2]. Be that as it may, the States have an advantage in the rivalry between the two spheres of government because they are closer to the people in the sense that they deal more directly with them, on more subjects, and also in the sense that there are more local ties of friendship, of family and party attachments in the States than at the national level [46.3].

     It must be admitted, according to Publius, that the national government, or those who fill its offices, "may feel an equal disposition with the State governments to extend its power beyond due limits" [46.11]. But still there are contravening motivations at work. If there is a special weakness in the national government, it is that the representatives of the people, drawn as they will be from within the States and subject to influences from the places and circumstances of their origin, will tend to give an undue attention to the local prejudices, interests, and view of the particular States" [46.10] at the expense of the commonweal. Such persons will tend to express the interests and biases of particular States, they will tend, unfortunately, to be "partisans of their respective States, [rather] than of impartial guardians of a common interest" [46.10]. But attachments to the subordinate governments or to the interests of the States will form something of a barrier against the enterprises of ambition that may occur [see 46.16, for example].

     Publius also engages in a disquieting discussion of the place of standing armies, and the military establishments, as he calls it, in the rivalship between the States and national government" [46.12-15].

3. ON TYRANNY AND THE SEPARATION OF POWERS

The Federalist No. 47; Independent Journal, January 30, 1788 - Madison

THE DOCTRINE OF SEPARATION OF POWERS CONSIDERED; GRIEVOUS POPULAR MISCONCEPTIONS CORRECTED

     A cursory look at the proposed Constitution shows that its first three articles set out the powers as well as certain limitations on the legislative, executive, judicial departments (or branches, as we now call them) of the new national government. The common understanding is that the Framers had separated each of these powers and then had also placed these separated powers in different departments, which had thereby been given a check on each other. The received opinion is that the Framers thus provided both a "separation of powers" and a correlated system of "checks and balances."121 The common understanding is, however, seriously flawed.

     What Publius calls "separation of powers" was first made part of constitutionalism in the seventeenth century during the English Civil Wars. The party known as Levellers first began taking about a separation of powers. What they sought to insure was that individuals accused of crimes should be judged by general and prospective rules. They argued that it was wrong for legislative authority to decide particular cases, for legislatures might be tempted to act arbitrarily. The separation they described was a separation between making rules by legislature and enforcing rules by executives or courts. What they intended by the separation of powers was what Aristotle had described as "the rule of law." And by that the Levellers had in mind government by general rules known in advance, rather than particular decisions contrived to suit some momentary passion; they insisted on a separation of powers to achieve impartiality in government.

     Clearly the separation of powers involved an idea about law–the notion that individuals should be judged by general and prospective rules. But that proposition does not imply anything about the actual process of legislation. It only implies that the framing of rules be separated from the administration of those rules.

     What is commonly called "checks and balances," or what Publius calls "legislative balances and checks," is not an idea about law but a theory about how laws should be made. And it has as its goal the restraint or limitation on the legislative power. Such a doctrine was also introduced into discussions of constitutionalism during the English Civil Wars. And with the restoration of the monarchy it described the English constitution. No act could become law without the consent of King, Lords and Commons.

     Many of the early American constitutions adopted some form of the separation of powers.122 But states that did not have the executive veto or bicameralism had not adopted what Publius calls a system of "legislative balances and checks." Thomas Jefferson recommended that the Virginia constitution should be modified to include checks and balances precisely in order to protect the separation of powers, and thereby insure the rule of law. "If therefore the legislature assumes executive and judiciary powers," Jefferson wrote, no opposition is likely to be made; nor, if made, can be effectual: because in that case they may put their proceeding into the form of an act of assembly, which will render them obligatory on the other branches."123 This same reasoning seems to have been expressed in the debates in the Philadelphia convention. And, as we will see, Publius quotes Jefferson as an authority in offering an argument for mixing or blending power in order to limit the legislature and thereby achieving "legislative balances and checks."

     Hence Publius defends checks and balances precisely in order to insure the separation of rule making from the enforcement or administration of those rules. But it should be remembered that the separation of powers was invented to insure the rule of law, that is, that law should be general and prospective. And perhaps the clearest manifestation of this doctrine at work in the Constitution is the prohibition of bills of attainder124 and ex post facto laws, and also the contract clause. When the legislature attainders someone they exercise at the same time the double office of legislature and court. Publius objects to this and is clearly committed to the notion of the desirability of law as a general and prospective rule of conduct, that being a crucial element of republican liberty, and hence fears, as we will see, arbitrary or capricious government resting on partiality or passion. This is precisely what Madison labels "tyranny," and Jefferson "despotism."

     But it should also be noted that the fundamental distinction is between the power to make rules of conduct and the administration of those rules.125 Hence we should expect to find Publius holding that the judiciary is really a shoot from the executive stock, since both what they called the executive and judiciary departments are assigned the task of administering law, though in ways that can also be distinguished.

     In Federalist 47, where we find an explicit and detailed defense of the separation of powers in the Constitution, Publius begins by taking up the charge brought by the anti-Constitution party that the proposed Constitution violated the separation of powers by mixing and blending the powers of the three departments. Publius, of course, grants that the powers of the three departments are actually somewhat blended and that such mixing or blending was entirely intentional rather than merely accidental. And Publius in Federalist 51 makes it clear that at least part of this mixing or blending of powers was devised precisely to project against what he earlier quoted Jefferson as describing as "legislative despotism." The executive must be given a role in the legislative process in order to restrain the legislature and prevent the violation of the separation of powers.

     But Publius is also anxious to refute the charge that, by mixing the various powers, the Framers had managed to so mingle the powers of the three departments in such a way as to destroy any effective separation. In order for his argument to be understood, it is crucial that what Publius meant by "separation" be grasped. The reply to the charges brought by the anti-Constitution party require Publius to look into the meaning of the doctrine of separation of powers.

     And eventually, after he has clarified exactly what he means by separation of powers, Publius will, in Federalist 51, set out the details of his own version of what he earlier called "legislative balances and checks," which is not just the other side of separation of powers. This particular auxiliary precaution is fashioned to protect the separation, when that doctrine is properly understood. And, of course, legislative checks and balances will constitute only one of the various checking devices places in the proposed Constitution by the Founders.

     Publius begins his treatment by granting that "no political truth is certainly of greater intrinsic value" than that which stands behind the separation of powers [47.3]. But the anti-Constitution party charged the Founders with having violated the separation of powers in the proposed Constitution, or with having violated what Publius calls this "sacred maxim of free government" [47.22]. "One of the principle objections," according to Publius, "by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judicial departments ought to be separate and distinct" [47.2].

     Who exactly were these "more respectable adversaries to the Constitution"? Why the unusual deference to its critics? In October 1787, James Madison had received a letter from his cousin, the Reverend James Madison which contained some favorable remarks concerning the proposed Constitution. But this letter also indicates that the Reverend Madison thought that it "possess a Defect, wch. perhaps threatens Ruin to Republicanism itself."126 What was this defect? "Is it not my Friend," Reverend Madison wrote to his cousin, "received by all, as a political Axiom–that it is essential to every free Govt., that ye Legislative & executive Departments should be entirely distinct & independent?"127 The Reverend Madison asks: "Upon what principle was it, that this fundamental Axiom in Politics has been disregarded" by the framers of the proposed Constitution, "since, it appears almost a Certainty, that where those Powers are united, Govt. must soon degenerate into a Tyranny."128 In this complaint against the proposed Constitution, we seem to have the argument and even the vocabulary in which Publius, in this case James Madison, will set out his understanding of the separation of powers. And we may also have an explanation for the unusual deference to critics of the Constitution.

     Publius begins his response by claiming that these adversaries of the proposed Constitution, despite their respectability, had not correctly understood the meaning of separation of powers. To overcome their objections, Publius must set out the correct understanding of what he calls "the sacred maxim" [47.22] in favor of liberty. The reason that "the more respectable adversaries of the Constitution" had brought what Publius believed to be an entirely false charge is that they were not clear about the principles behind the doctrine; they were actually confused about what was required by the demand for a separation of powers. They had not asked what exactly was being separated and why? Hence, when they saw any partial agency or blending of powers, they assumed that "this fundamental Axiom" had been violated. Part of their confusion was that they believed that under the separation of powers the three departments could not be blended or mixed–any partial agency of one department in the operation of another was, from their point of view, a violation of the sacred maxim. Publius strives to correct that view, while explaining what must be separated and why.

     Certain of the more respectable critics of the proposed Constitution have, according to Publius, falsely charged that it violates that "sacred maxim of free government" [47.22] precisely because they misunderstood the principles upon which that maxim rests. If their objections had been true, these complaints alone, according to Publius, would justify the flat rejection of the proposed Constitution [47.2]. This remark might indicate something of the seriousness Publius attributed to the rule of law that the separation of powers was intended to facilitate.

     The reason is that, from Publius's perspective, separation of powers is the primary institutional device providing an effective protection against tyranny. He therefore begins his treatment of the separation of powers by providing his definition of tyranny. "The accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the [proposed] federal constitution therefore really chargeable with the accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system" [47.3]. Publius then claims that no such accumulation of power was intended or was possible under the proposed Constitution. In bringing their charges, the adversaries of the federal Constitution had "totally misconceived and misapplied" the maxim upon which their objection is grounded [47.3].

     Publius then attempts to set forth the proper understanding of the separation of powers. It should be noticed that the "political maxim" [47.2] that he defends is a necessary ingredient of free government–it is, in his language, an "essential precaution in favor of liberty" [47.2]. It is not a doctrine that has something to do with the efficiency, energy, or efficacy of government. Nor does it require a total separation of the departments of government, for Publius insists that a certain appropriate mixing or blending of the departments is necessary to preserve the separation of powers. In order to see why a mixing of powers is at least useful in maintaining the separation of powers, it is necessary to understand what Publius had in mind by a separation. In order to set out the proper understanding of the separation of powers, Publius turns to the "celebrated Montesquieu," that "oracle who is always consulted and cited on this subject..." [47.5]. And it was Montesquieu, who in his Spirit of the Laws, had described the separation of powers that he thought he saw in the British Constitution.

     Publius rests his argument on the assumption that if Montesquieu, the author who is most often cited as having set forth the doctrine of the separation of powers, could have done so while describing the British Constitution, which clearly involved a mixing or blending of departments, then it follows that a certain mixing or blending in the proposed Constitution would not necessarily violate the sacred maxim. In order to make his point, Publius must ascertain the meaning that Montesquieu gave to separation of powers [47.5]. A careful reading of the language quoted by Publius from Montesquieu is important, as well as attention to the points that Publius makes concerning what can be drawn from Montesquieu's description of the British Constitution. Publius discovers that in the British Constitution the "legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority" [47.7]. And Publius then shows how such a mixing is to be found in the British Constitution in his time.

     If the three departments of government may properly have a partial agency in the affairs of each other, what then constitutes the separation of powers? Exactly what powers are being separated, if the separation is not merely a functional separation of departments? Publius argues that "the fundamental principles of a free constitution, are subverted" only when "the whole power of one department is exercised by the same hands which possess the whole power of another department" [47.8]. But what exactly are the powers that must be kept separate?

     In Federalist 38, Publius mentioned that with a certain "class of adversaries of the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government, and the requisite precautions in favor of liberty" [38.8]. Beginning at that point it becomes clear that Publius will defend a certain type and degree of mixing or blending of the three departments, or will advocate a certain degree of "partial agency" of the executive in the affairs of the legislative department, and so forth. "Is it," asks Publius, "improper and unsafe to intermix the different powers of government in the same body of men?" [38.10].

     An improper combination of powers takes place if, and only if, the power to make the rules that ought to constitute law, that is, set out general and prospective rules, is somehow combined with the power to administer the law. Hence, under the British Constitution, "the magistrate in whom the whole executive power resides cannot of himself make a law..., nor administer justice in person, though he has the appointment of those who do administer it" [47.8]. The separation that Publius is talking about, and that he sees at work in Montesquieu's work, is a separation of rule-making from the rule-administering power.129 And hence some blending of the departments of government–giving one department a partial agency in the affairs of another–will not necessarily violate the separation of powers. The object of the separation of powers is to avoid as much as possible arbitrary government by insuring the impartiality in government that Aristotle described as the "rule of law."130 The rule of law is to be contrasted with the arbitrary, discretionary rule of men, or, in Madison's view, with tyranny. Separation of powers is thus an idea about law; law, especially that which deals with crimes, should consist, as far as possible, of general and prospective rules.

     Separation of powers is thus a doctrine that rests on a view of what ought to constitute law. That notion entails a distinction between the framing and the execution of rules. The tyranny that Publius fears is the absence of known and settled rules. And tyranny, as Publius understands it, is possible when the same agent can both make and administer law, that is, when the same individual or group is able to act arbitrarily or capriciously, and is therefore unrestrained or unlimited by law or constitution [47.9]. Publius will describe a constitution which contains the proper safeguards against tyranny, that is, against partiality in the administration of justice, against arbitrary rule, a "limited Constitution" [74.4; 78.9, 18]; 81.5], or "free constitution" [47.8]. The separation that Publius has in mind exits when one agent makes the law or sets forth the rules, and another agent is charged with administering those rules.131 Publius argues that such a separation can be best maintained when there is some mixing or blending of the powers of the three departments. It is one variety of that mixing or blending of the departments that will constitute a system of legislative balances and checks found in the proposed Constitution.132

     The anti-Constitution party, according to Publius, has not understood the meaning of the principles behind the "regular distribution of power into distinct departments," to use his earlier formulation [9.4]. Certain of the adversaries of the proposed Constitution seem to have assumed that any mixing or blending of the authority of one department with another was a clear violation of the "sacred maxim of free government" [47.22].

     Publius admits that the proposed Constitution contains some mixing or blending of the powers of the three departments. In order to defend the mixing or blending of the three departments of the proposed Constitution, Publius examines eleven of the existing state constitutions [47.10–New Hampshire; 47.11–Massachusetts; 47.13–New York; 47.14–New Jersey; 47.15–Pennsylvania; 47.16–Delaware; 47.17–Maryland; 47.18–Virginia; 47.19–North Carolina; 47.20–South Carolina; 47.21–Georgia]. In each case he finds various ways in which the three departments in each of the states "have not been kept totally separate and distinct" [47.22], but are actually mixed or blended in various ways, though not always necessarily wisely, for it is "too obvious that in some instances, the fundamental principle under consideration has been violated by too great a mixture, and even by an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation on paper" [47.22].

     Publius, as will be seen in Federalists 48 through 51, begins at once to set out an intermixing of executive with legislative power that is intended to restrain the authority of the legislature.133Constitutionalism in America, vol. II, El Pluribus Unum, ed. by Sarah Baumgartner Thurow (Lanham, MD: University of America Press, 1988), 2:2-22 and especially at 14-17; Dennis J. Mahoney, "The Separation of Powers: A Constitutional Principle in Contemporary Perspective," in Constitutionalism in America, 2:23-33; and see also George W. Carey, "Separation of Powers and the Madison Model: A Reply to the Critics," American Political Science Review 72/1 (March 1978): 151-164; Carey, The Federalist: Design for a Constitutional Republic (Urbana, IL: University of Illinois Press, 1989), 50-95; Murray Dry, "The Separation of Powers and Representative Government," Political Science Reviewer 11 (Fall, 1973): 43-83, who seem to have more or less gotten clear on the crucial distinctions. Since Wormuth's work on these issues has unfortunately been neglected, access to something approaching a clear understanding of separation of powers and the distinction between that doctrine and checks and balances (that is, "legislative balances and checks") has been through Gwyn's essay. The greatest threat to republican liberty comes from wanton legislatures. He makes this point by quoting Thomas Jefferson's famous essay entitled Notes on Virginia, which contains a passionate complaint about the failure of the Virginia Constitution to have some sure way of restraining the "elective despotism" of the legislature. The reason that the legislature in Virginia was not properly restrained was that it was "expressly declared in its constitution, that the three great departments ought not to be intermixed" [48.11]. But that kind of language offered a mere "parchment barrier" to tyranny. In Virginia, in the eyes of Jefferson, the legislature encroached on the other departments. Publius quotes Jefferson to the effect that "the concentrating these [powers of government] in the same hands, is precisely the definition of despotic government" [48.11, cf. Madison's definition of tyranny in 47.2]. Jefferson recommended a system of legislative balances and checks as a way of restraining the legislative department for the purpose of preserving the "rule of law," that is, of protecting the separation of rule-making authority from the administration of those rules, which should be left to the executive and judicial departments. In Jefferson's Notes on Virginia two fundamentally different constitutional doctrines–separation of powers and what Publius called "legislative balances and checks" came to be associated with one another.

     Unfortunately, the close association of the two doctrines has led to various misunderstandings and hence confusions between them. Often it is not understood what powers are being separated, and hence why they should be separated, as well as how the departments of government can and should be mixed or blended as a means of checking each other. Confusion over this issue was present even or especially with the anti-Constitution party and it continues to the present day. In the common understanding there are three departments of government that have been separated, and each have been give a check on the other which results in an equilibrium or balance between them. But, as we have seen, this is not at all what Publius had in mind, nor is it an accurate description of what was placed in the proposed Constitution. Instead of entirely separating the three departments, the Framers devised a Constitution in which the executive is given a "partial agency" in the legislative function precisely in order to make possible a salutary restraint or check upon the legislature, which otherwise could manifest tyranny, as Publius define it. Such an arrangement allows the executive magistrate–the Presidency–to defend itself against the potential encroachments of the legislature.

     The doctrine of checks and balances took its rise as a political institution, and as such became familiar to the Framers, during the seventeenth century in England, where it was thought that after the Stuart restoration, following the English Civil Wars, that Commons, King and Lords were in a kind of equilibrium because they each had a check upon the other, when acting as the legislature. Checks and balances thus came to America as an idea about legislation, while separation of powers is an idea about law–that laws should consist of general and prospective rules and not arbitrary or discretionary acts of a despot, hence the rule-making authority must be separated from the administration of law.

     The English notion of checks and balances was never appropriate to American politics because the social situation that made possible the equilibrium between the interests of three large social classes, such as once were manifested in Commons, Lords and King, did not ever exit in America. There being no social basis for monarchy or aristocracy in American, and hence no possibility for an equilibrium of interests like that which constituted the notion of checks and balances after the Stuart restoration in England, the state legislatures in America tended to absorb the bulk of power as they became more and more democratic institutions.

     Thomas Jefferson reintroduced the doctrine of checks and balances, now adopted to a democratic situation, for the purpose of restraining an "elective despotism," as he called it, which sweeps all power into its "impetuous vortex," to use the language of Publius [48.3; cf. 63.24]. Jefferson complained, in his Notes on Virginia, that the executive and judiciary were far too dependent upon the legislature. "If therefore the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor if made, can it be effectual: because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches." To prevent such a despotism, he recommended that the powers of the legislature be divided in such a way that one part could not transcend its limits without being checked by the other, or by the executive through a veto or negative on legislation.

     Likewise, both Madison and Hamilton argue that the judiciary must be made as independent as possible from the legislature. The reason for these arrangements, from the point of view of Publius, was to ensure what has come to be known as the rule of law, that is, that the power of the legislature–the power to make law that consists of general and prospective rules–be kept separate from the power of executing those laws so that the citizens had the advantage of being governed by known and settled rules rather than being subjected to arbitrary government, and, in that sense, to tyranny or despotism. And hence, from the perspective of Publius, the three traditional departments of government could be mixed in various way, one could safely be given an appropriate partial agency over another, as long as that blending did not lead to arbitrary government through a compounding of power where the subjects did not have the benefit of being governed by general and prospective rules.

     While it is usually thought that the characteristic features of American government are addressed to the problem of power and its limitation, the Framers, as we have seen, were very much interested in energy in government. They were more troubled by the prospect of weakness in government than by the exercise of power. The truth is that the proposed Constitution addressed the problem of law–how to achieve the necessary energy in government, while at the same time insuring impartiality and avoiding arbitrary control outside of known and settled rules and hence protecting republican liberty, understood in terms of the "rule of law." This effort can best be seen in the prohibitions on bills of attainder (that is, legislative impositions of criminal penalties) and ex post facto (that is, laws imposing criminal punishments retroactively) laws by Congress. The worry was that if the legislative authority undertook to decide particular cases, it would allow a free reign to bias, prejudice and partiality and the salutary effects of law, understood as general and prospective rules, would be lost in the resulting tyranny.

The Federalist No. 48; New-York Packet, February 1, 1788 - Madison

THE SEPARATION OF POWERS AND THE NECESSARY MIXING OF POWERS; THE DANGERS OF LEGISLATIVE TYRANNY

     If, as Publius argues in Federalist 47, the doctrine of separation of powers does not necessarily exclude the possibility of mixing and blending the powers of the three departments, then the kind of separation that he has in mind–the separation of law-making from law-enforcing power–will need some mechanism that would tend to prevent those subjected to laws from being "exposed to arbitrary control" [47.9]. Those exposed to arbitrary government would not have the benefit of known or settled rules–the impartiality of the "rule of law." But to have a system with the advantages of the "rule of law," rather than arbitrary government, an "effectual restraining from passing the limits assigned" to the departments of government is clearly necessary [48.2]. How can that be accomplished? That is the question that is posed in Federalist 47. The response of Publius to that question is advanced in the next four numbers of The Federalist.

     Publius argued that a free government "does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other" [48.1]. He now argues that, "unless these departments be so far connected and blended, as to give each a constitutional control over the other, the degree of separation which the maxim [of separation of powers] requires as essential to a free government, can never in practice, be duly maintained" [48.1]. The reason being, that "since power is of an encroaching nature,...it ought to be effectually restrained from passing the limits assigned to it" [48.2]. What is needed is "some practical security for each [department] against the invasion of the others" [48.2]. And without such a "practical security," one is left with merely the "parchment barriers" of a constitution "against the encroaching spirit of power" [48.3].

     Publius held, following writers in the republican tradition generally, that the department most dangerous to liberty, in republican regimes, is the legislature [48.3, 4, 7; 49.9; 51.9; 62.7; 71.4; 73.5]. "In republican government, the legislative authority necessarily predominates" [51.9]. Hence the greatest danger to republican liberty–to free government–comes from legislatures that overstep their bounds by attempting to execute law as well as legislate, that being the very definition of tyrannical representative republics [47.3]. "The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex" [48.3]. The question that must be answered, if republican liberty is to be protected, and partial, arbitrary government avoided, that is, the "rule of law" achieved, is how to prevent "the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations" [48.4].

     Publius, though not unaware of the danger, is much less troubled by the possibility of executive usurpation of power than by the encroachments of the legislature [see 48.5, 6, 7, 9]. The method for restraining the legislature that is set out in The Federalist is the "introduction of legislative balances and checks" [9.4]. This is now more commonly known as "checks and balances." And it is not, at least for Publius, the same thing as separation of powers. The system of legislative balances and checks is a way of restraining the legislative department. Simply setting out the power of each department in the constitution would not automatically ensure that they would act accordingly, for "a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands" [48.19; cf. 74.5].

The Federalist No. 49; Independent Journal, February 1, 1788 - Madison

ON THE DANGERS OF APPEALS TO THE PEOPLE WHEN THE CONSTITUTION

IS IN CRISIS

     Publius argues that the tyranny, or the absence of the rule of law, and hence arbitrary government, that results from the absence or violation of the separation of powers must be avoided by something more effective than mere words in a Constitution, that is, by what he calls mere "parchment barriers" [48.3; 49.18; 73.5]. Exactly why that is so can be seen when the meaning of that doctrine is properly understood. Publius thus went to some lengths to clarify the doctrine of separation of powers in the previous two essays.

     Since the inclusion of a system of legislative balances and checks may seem to some, at least on the surface, not to be strictly republican, since it checks the impetuous expression of momentary humors or passions, it is also necessary for Publius to now defend the genuinely republican qualities of that device. He did that, at least initially, by invoking the authority of Thomas Jefferson [48.11]. In Federalist 49, Publius begins an effort to describe a system of legislative balances and checks that would not be a mere parchment barrier to the encroachment of the legislative authority on that of the executive and judicial departments. He does that by taking up Jefferson's suggestion, as set forth in his Notes on Virginia, for calling a periodic "convention...for altering the constitution, or correcting breaches of it..." [49.2].

     The protection against the concentration of law making and law enforcing powers in the same hands, though it must be "strictly consonant to the republican theory" [49.3], ought not, according to Publius, be made by frequent direct appeals to the people. Jefferson had proposed constitutional conventions as a possible way of dealing with real or presumed violations of the separation of powers. Publius grants that Jefferson's suggestion is in accord with republican principles. But it is nevertheless unsound. Though he clearly holds Jefferson in the highest respect, Publius rejected his suggestion on this issue. Publius argues, instead, that Jefferson's proposal is not desirable because "frequent appeals [to the people through the vehicle of constitutional conventions] would...deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest government would not possess the requisite stability" [49.6].

     Borrowing from David Hume, Publius argues that "all government rests on opinion" [49.7]. Hume had earlier written that, "though men be much governed by interest; yet even interest itself, and all human affairs, are entirely governed by opinion."134 In his essay entitled "Of the First Principles of Government," Hume began with the following observation: "Nothing appears more surprizing to those, who consider human affairs with a philosophical eye, than the easiness with which the many are governed by the few; and the implicit submission, with which men resign their own sentiments and passions to those of their rulers. When we enquire by what means this wonder is effected, we shall find, that, as FORCE is always on the side of the governed, the governors have nothing to support them but opinion. It is therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as to the most free and most popular."135 The point of this argument is to show that it would be wise to "cherish and improve our ancient government as much as possible, without encouraging a passion for...dangerous novelties."136 Hume thought that all governments were necessarily founded upon opinions "of public interest, of right to power, and of right to property..., and all authority of the few over the many" rest on variations of these opinions.137 "By opinion of interest, I chiefly understand the sense of the general advantage which is reaped from government; together with the persuasion, that the particular government, which is established, is equally advantageous with any other that could be settled." When such an opinion prevails, "it gives great security to any government."138 On the other hand, opinion concerning "Right is of two kinds, right to power and right to PROPERTY. What prevalence opinion of the first kind has over mankind, may easily be understood, by observing the attachment which all nations have to their ancient governments.... Antiquity always begets the opinion of right...."139determined sense of justice and equity."

     Publius seems to have borrowed from Hume the notion that attachment to old and hence venerable institutions, without the constant introduction of novelties, is desirable and even necessary to preserve the requisite stability of government. "If it is true that all governments rest on opinion, it is not less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. In a nation of philosophers [where presumably self-interest and the public good would always coincide], this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected as a philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side" [49.7].

     Then Publius looks once again to the remarkable spectacle of the Philadelphia Convention. In that body, like all other public deliberations, there was the constant danger of factional quarrels interfering with the pursuit of the public good. "Notwithstanding the success which has attended the revisions of the our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are too ticklish a nature to be unnecessarily multiplied" [49.8]. And if questions concerning the fundamental order of society were to be opened again for deliberation, it is not likely that the forces which "repressed the passions most unfriendly to order and concord" would operate once again in further conventions to lead to a desirable end. "The future situation in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended" [49.8].

     It seems that Publius believes that the new regime will need the beneficial effects that time gives to venerable old institutions. The sanguine effect of such shared opinion will provide a security for rights and protection against usurpations and injustices. It will set in place opinions of right and also of interest which will form the fundamental content of a new civic virtue for the American regime. This is necessary precisely because it is risky merely to rely entirely on enlightened self-interest. It would be unwise to expect public deliberations to be conducted with enlightened reason. The shield against party rage and other irregular passions must include the habitual veneration of the work of the wise men who set down the foundations of the new republic.

     And the matter of whether there has been an encroachment on the Constitution cannot be safely left to the legislature to decide, and hence not to devices in which the legislature is likely to have some final say. Such occasional appeals to constitutional conventions called to correct abuses of the Constitution by the legislature are very likely to manifest the spirit of party, and hence be conducted without the kind of passion for the public good and spirit of moderation that attended the deliberations in Philadelphia. The reason is that the greatest single threat to the separation of powers, and hence the deepest threat of tyranny, comes from the legislature [49.9]. The character of the threat of tyranny in representative republics is what Jefferson, in his Notes on Virginia, called "elective despotism" [see 48.11, where Publius quotes at length Jefferson's famous remarks].140

     Publius, following the argument of Jefferson's famous passage in "Notes on Virginia," maintains that appeals to the legislature cannot be made, with any real hope that such appeals will remove encroachments of the legislature on the other departments. The legislature would sit in judgment on its own case, when appeals are made to it over cases of alleged violations of the rule of law that is protected by the constitutionally mandated separation of powers [49.13]. And appeals to an occasional constitutional conventions would tend to give the legislative party an undue advantage and hence would also be unproductive for the same reason [49.13].

     Some other method for protecting the rule of law standing behind the separation of powers must be sought that would not agitate "the public tranquillity by interesting too strongly the public passions..." [49.8], as might happen when constitutional issues were thrown into the public arena where factional controversy could take place. Any device for protecting the separation of powers and hence the rule of law that depends on exciting and enlisting the public passions and interests would arouse or generate factional quarrels. Every effort must be made to defend the separation of powers, as understood by Publius, without unduly calling forth expressions of passion [49.16, 17]. And frequent appeals to the people are likely to arouse the very passions which republican government is instituted to regulate [49.17]. The ultimate authority is, of course, with the people, but it must be one whose passions have been regulated and controlled or cooled and moderated.

     [Historical Note: On February 1, 1788, the legislature of New York called for a convention to consider ratification of the proposed Constitution. Delegates were elected on April 29-May 3, 1788.]

The Federalist No. 50; New-York Packet, February 5, 1788 - Madison

MORE ON THE DANGERS OF PERIODIC APPEALS TO THE PEOPLE

     Occasional appeals to the people acting through constitution conventions to protect against usurpations of power by one department at the expense of another have been shown by Publius to be undesirable.

     But could not some type of regular, periodic appeal to the people [see 50.1] be a more "adequate means of preventing and correcting infractions of the Constitution"? Publius finds this proposal to be nearly as flawed as was the suggestion of occasional appeals to the people [50.2]. He claims that the best single example of this type of proposal actually at work comes from Pennsylvania, where a Council of Censors periodically looked into the question of whether the constitution had been violated [50.3]. But the record of the appeals to a Council of Censors manifest the destructive quarrels of factions [50.4, 10], and, according to Publius, "unfortunately, passion and not reason, must have presided over their decisions" [50.6]. And republics are thus in jeopardy when violent passions, and not calm reason, sits in judgment. Publius makes this point in the following way: "But it is the reason, alone, of the public, that ought to control and regulate the government" [49.17].

The Federalist No. 51; Independent Journal, February 6, 1788 - Madison

LEGISLATIVE BALANCES AND CHECKS AS A SAFEGUARD FOR THE SEPARATION OF POWERS

     Publius has now reached the point in his argument where he can set out a solution to the problem of maintaining the separation of powers he has posed. He puts the question in the following way: "To WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places" [51.1]. At this point Publius is ready to set out the details of what he understands to be the legislative balances and checks placed in the new Constitution by the Framers. He argues that this precaution is the proper internal device for protecting the separation of powers.

     For Publius, the separation of powers is the appropriate way to guarantee as much as possible the rule of law and thereby avoid arbitrary government. The fundamental protection against the tyranny resulting from the disappearance of the rule of law is a system of legislative balances and checks, that is, by bicameralism and the executive veto on acts of the legislature. Publius had earlier used the expression "legislative balances and checks" [9.4] to describe this particular mechanical feature of the proposed Constitution. Such a counterpoise was also earlier described [9.4] as one of the discoveries in the science of politics upon which "principle progress toward perfection" has been made in "modern times," if it is not a "wholly new discovery."141

     Publius mentions that virtually everyone, at least to "a certain extent," grants that each department should be fitted "for that separate and distinct exercise of the different powers of government" [51.2]. But the "preservation of liberty" requires "that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others" [51.2]. It would, however, be difficult to draw from the people directly the officials of all three departments and especially in the case of the judiciary department [51.3]. One thing is sure, "the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices" [51.4]. Later, in Federalist 78, Publius advances arguments defending the independence of the judiciary from the other two departments that rest on the same assumptions set out in Federalist 51.

     But even those kinds of internal controls, restraints, or checks that are established in the proposed Constitution to arm the executive and the judiciary against encroachments by the legislature are not likely to be sufficient protections against usurpations. Therefore, Publius argues that "the great security against the gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the other" [51.5]. How exactly is that to be done? Here Publius, in some of the most widely quoted language from The Federalist, explains that the way to accomplish the desired goal is to make low motives check low motives. "Ambition must be made to counteract ambition" [51.6]. He calls this the "policy of supplying, by opposite and rival interests, the defects of better motives..." [51.8], though he grants, and even stresses, that the wisdom and virtue of the people–public spiritedness–is ultimately the fundamental safeguard against the encroachments of power because "a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions" [51.7].142

     Auxiliary precautions are described as internal rather than external devices or checks. And they are specifically designed to call upon the passions and immediate self-interest of those who hold office, or otherwise serve in the various departments. They induce office holders to do their constitutional duty. "The interest of the man must be connected with the constitutional rights of the place" [51.6], otherwise the limits on power placed in a constitution would only be words–what Publius calls mere "parchment barriers" [48.3, 19; 49.18; 73.5]. Publius argues that the effort to use "opposite and rival interests" to check the dangerous effects of ambition and avarice can "be traced through the whole system of human affairs, private as well as public" [51.8]. The goal is to have "the private interest of every individual" function "as a sentinel over the public rights" [51.8].

     Publius admits that the policy of supplying with opposite and rival interests, the defects of better motives–of virtue or public spiritedness in public officials–reflects somewhat on the moral quality one can expect of human beings [51.6.]

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary [51.6].

Publius had already held that "the passions [of the people] ought to be controlled and regulated by the government" [49.17], but some way must be found to insure that "reason alone," and not the passions of the public will "control and regulate the government" [49.16].

     Publius seems to have drawn upon David Hume's observations on the knavish capacities of men.143 In 1741, in a widely read essay entitled "Of the Independency of the Parliament," Hume noted that "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 must govern him, and, by means of it, make him, notwithstanding his insatiable avarice and ambition, co-operate to public good. Without this, say they, 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 good-will of our rulers; that is, we shall have no security at all."144 "It is, therefore, a just political maxim, that every man must be supposed a knave: Though at the same time, it appears somewhat strange, that a maxim should be true in politics, which is false in fact."145 "If...the separate interest be not checked, and be not directed to the public, we ought to look for nothing but faction, disorder, and tyranny from such a government."146 Hume is, of course, not denying that their are good qualities in human beings, or that they are incapable of virtue, or that they are merely base and mischievous. He is merely arguing that in founding a government, in setting out a constitution in legislating for a republic, it is prudent to device its various checks and controls on the assumption that man will act knavishly, that is, contrary to the common interest or public good.

     Publius presents a balanced and yet realistic assessment of human nature. Republican government is especially in need of checks, controls, or safeguards against the potential corruptibility of man or what Publius calls the absence of better motives. But it is a grave mistake to assume, merely because Publius has denied the uniform angelic qualities of human beings, that he believes that they are entirely corrupt or essentially evil. Republican government thus does not depend on seeing human beings as totally depraved, or on naive assumptions of universal rectitude. Like Hume, Publius is merely pointing to one element in human nature that must be taken into consideration when setting out the various controls in a constitution; he is not claiming that men are not capable of at least some measure of human excellence or virtue. He is adjusting to the defects or flaws in human nature that otherwise would threaten republican government. The primary control on government remains precisely the wisdom and virtue, the public spiritedness, the willingness to sacrifice immediate self-interest for the long-term public interest and hence willingness to serve the public good or commonweal. But, as Publius say, "experience has taught us the necessity of auxiliary precautions."

     Clearly Publius, in his remarks contrasting men and angels, is not advancing a view of human things that assumes total wickedness, baseness or depravity.

"As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem in confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some [adversaries of the proposed Constitution] faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another" [55.15].

So Publius, like theorist in antiquity, took it for granted that republican government was possible only in the presence of moderation and hence a measure of excellence or public virtue.

     But he was sufficiently realistic to see that not everyone would always act from public-spirited motives. The attachment of the passions to immediate interest would at times threaten the republic. And hence Publius was concerned to defend checks or controls on the strong passions and immediate interests, and hence on ambition and avarice that have been placed in the proposed Constitution. That was done by involving in "the necessary constitution means" some additional powerful and effective "personal motives," even or especially some lower motives, to check or control the abuses against the public good that flow from the attachment of the passions to narrow and immediate self-interest and therefore also to the quarrels of factions or parties.

     Publius thus provides an account of a scheme of checks or constitutional safeguards against the knavish behavior that would otherwise destroy republican liberty by concentrating all power in the hands of some agent, whether one, few or many, whether in the legislative, executive or judicial departments of the national government. The way to prevent tyranny (or legislative despotism) is to guard against violations of the separation of powers. That could be done by supplying, with "opposite and rival interests, the defect of better motives" [51.8]. Interest could be made to check interest, ambition to check ambition, and so forth.

     The specific device (or auxiliary precaution) set out by Publius in Federalist 51 was a wholly republican scheme of legislative balances and checks which was intended to control or restrain irregular passions at work within the legislative department. What was behind this specific constitutional means was a policy, which can be traced through virtually all of the features of the new Constitution, which seems to depend upon a lowering of the horizon somewhat on virtue from the earlier understanding of the requisite moral foundations of republican government. But it would be a serious mistake to see in the move of Publius an abandonment of the requirement of a virtuous people for republican government. Such a lowering of horizons as Publius makes does not entail an abandonment of the need for virtue in either the officers of the government or in the citizens generally in the new extended, commercial republic.

     Publius strives to defend what he considers the needed safeguards against the occasional absence of virtue in specific cases where the corrupting influence of passion comes into play. The new republic was to be a "well constituted republic" in that it was designed to survive the occasional distempers and even the occasional wickedness of men. But it was not designed to survive, nor could it be expected to survive, the disappearance of civic virtue altogether. The ultimate dependence in a republic is thus on opinion, on the character of citizens. There is thus a threshold of virtue below which not even the checks and controls defended by Publius and present in the Constitution can prevent tyranny or the disappearance of enlightened zeal for the public good.

     In this essay Publius begins his explanation of how the Constitution is intended to project the rule of law by addressing the question of providing internal safeguards against tyranny resulting from usurpation by that department of the powers appropriately granted to the other departments. After describing a system of what Publius calls "legislative balances and checks" which might be expected to restrain somewhat the legislature from drawing into its "impetuous vortex" all the powers granted to the new national government, Publius draws attention to what he calls "the federal system of America" [51.12], though he also eventually grants that it amounts to a "judicious modification and mixture of the federal principle" [51.19]. He argues that having two levels of republican government–the proposed new National Republic, as well as the States, affords and an additional internal security or protection against the possibility of tyranny.

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America [under the proposed Constitution], the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself [51.13].

     In addition to guarding against the tyranny of rulers, it is also necessary to "guard one part of the society against the injustices of the other part" [51.14]. The reason is that different interests will be at work in society, and "if a majority be united by a common interest, the rights of the minority will be insecure" [51.14]. One might create a will independent of the majority. Mixed regimes rely on that method; they call on the monarchial element to check the potential abuses of popular majorities. But such protection is at best, according to Publius, "a precarious security; because a power independent of society may as well espouse the unjust views of the major, as the rightful view of the minor party, and may well be turned against both parties" [51.14].

     The solution to the problem is found in what Publius calls a "compound republic" [51.13] or "extended republic" [51.18] in which society "will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority" [51.14]. This arrangement will also allow "all authority" to "be derived from and dependent upon the society" [51.14], and hence will be strictly republican. "In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects" [51.15]. And, as was shown in Federalist 10 and 14, the necessary multiplicity of factions in the compound, commercial republic will depend "on the extent of country and the number of people comprehended under the same government" [51.15].

     The purpose of these arrangements is to secure justice. Publius claims that justice (and liberty) form the ends or purposes of government and of civil society [51.16]. And justice, which is essential to liberty, is not possible "when a stronger faction can readily unite and oppress the weaker" [51.17]. He explains that the ground for government, as well as the necessary condition of civil society, is a compact in which both the weaker individual and the stronger are protected in their rights and liberties from the tyranny of one over another. Likewise, in civil society, when properly constituted, we might well expect that even "the more powerful factions or parties [will] be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker, as well as the more powerful" [51.17]. A republic which contains a "great variety of interests, parties, and sects" is not likely to generate "a coalition of a majority of the whole society" on "any other principles than those of justice and the general good" [51.18].

     [Historical Note: On February 6, 1788, Massachusetts became the sixth state to ratify the Constitution, 187 to 168, though with proposed amendments. The Massachusetts convention was called on October 25 and delegates were elected on November 19, 1787 and January 7, 1788.]

4. THE COMPOSITION OF THE DEPARTMENTS UNDER THE NEW REPUBLIC;

THE STRUCTURE OF THE NATIONAL GOVERNMENT

     Publius now examines each of the three departments of power in the new national government, beginning with the legislature.

A. THE LEGISLATIVE DEPARTMENT

     Publius deals with the two houses of the legislature, beginning with the House. The main purpose of this portion of The Federalist is to demonstrate that what has been proposed by the Philadelphia Convention sufficiently conforms to republican principles, when they are properly understood, and as they have been set out, to warrant ratification. He also argues that the proposed Constitution is so structured that it will ensure that a properly energetic, stable and reasonably just government will result.

     No separate section of The Federalist is devoted directly to a comparison of the State constitutions with the proposed Constitution, as was promised by Publius at the end of Federalist 1, when the plan for the entire series was initially set forth [1.16]. But comparisons between the proposed Constitution and the constitutions of various States are made here and there throughout The Federalist, as the various other elements of the plan of the series are unfolded. And this is especially true in the section of The Federalist now under consideration. Hence, Publius eventually says that it appeared to be unnecessary to devote any special attention to that issue.

THE HOUSE OF REPRESENTATIVES

The Federalist No. 52; New-York Packet, February 8, 1788 - Madison

THE QUALIFICATIONS OF THE ELECTORS AND THOSE ELECTED;

BIENNIAL ELECTIONS

     Publius begins the examination of the parts or departments of the new National Government by taking up the "qualifications of the elected and the electors." Since republican government requires a dependence of the government on the people, it was necessary for the Convention to be concerned with the question of franchise or suffrage. It, therefore, had to confront the problem of the definition of the right of suffrage [52.3]; it could not just leave that matter open for the determination of Congress and not place in jeopardy the republican character of the regime, nor could it have left the matter entirely for the legislative discretion of the States. And yet it was impossible for the Convention to have fashioned a uniform rule. The Convention allowed the matter to be determined by the rules set out in the various constitutions of the States, which are presumably republican. And it is unlikely that the States would find it desirable to "alter this part of their own constitutions in such a manner as to abridge the rights secured to them by the federal Constitution" [52.3].

     It is especially necessary that the members of the House have "an immediate dependence on, and an intimate sympathy with, the people" [52.6]. Granting that principle, a question still remains concerning the frequency of elections for members of the House. Publius recommends that we ought to consult experience or history, which he claims is "the guide that ought always to be followed whenever it can be found" [53.6]. Since "representation, as a substitute for a meeting of the citizens in person" appears to be "very imperfectly known to ancient polity," it is to recent experience or to "modern times" that we must turn for helpful instruction [52.7]. What follows is an account of the various frequencies with which elections have been held [52.7-12] for different types of legislatures or parliaments. From these materials Publius derives a rule: "where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted" [52.13]. This rule then provides the foundation for the consideration provided in the next essay of the length of term for members of the House of Representatives.

The Federalist No. 53; Independent Journal, February 9, 1788 - Madison

THE TERM AND FREQUENCY OF ELECTION FOR MEMBERS OF THE HOUSE

     Critics of the Constitution complained that the term of election to the House of Representatives was too long; they demanded annual elections on the assumption that "when annual elections end, tyranny begins." But Publius rejects such demands. The States, he argues, show a wide variation in the frequency of election, and nothing inimical to liberty seems to coincide with those differences [53.1].

     The primary reason for going beyond the rather common opinion of the time, that annual elections were a primary safeguard to liberty, is to insure as much as possible the proper qualification of those elected. In addition to an "upright intention and a sound judgment," Publius argues that "a certain degree of knowledge of the subjects on which he is to legislate" is necessary for competence in legislation [53.7]. Some kinds of knowledge "can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it" [53.7.]. Perhaps, in the little theater of the States, annual elections will suffice, but in "the great theater of the United States" [53.9] more experience and a more profound and extensive knowledge is needed. He then provides a rather detailed explanation of why this appears to be so [see 53.9-12].

     Finally, Publius suggests that those with superior talents may tend to "become members of long standing" in the House, and their presence will help overcome the inevitable weaknesses of new members [53.13].

The Federalist No. 54; New-York Packet, February 12, 1788 - Madison

THE "APPOINTMENT" OF MEMBERS OF THE HOUSE; THE EVIL OF SLAVERY

     By "appointment" Publius has in mind the apportionment or election of the members of the House of Representatives. The general principle was that population determined the number of members a State might have in the House. But that is not strictly accurate, for the formula was the same as the apportionment of direct taxes. And the reason for this was that the Framers faced the problem of how slaves would be counted–a problem that deeply troubled the Philadelphia Convention and eventually forced a rude compromise.

     The compromise was thought by some to have treated slaves as mere property. And Publius admits that to some extent, though not fully, that was true [54.4]. Yet he defends the compromise on the grounds that it set in place the principle that slaves were not merely property, but in some respects they were considered people [54.4]. Of course, their being vendible made them, in some States and at least for certain purposes, property under the existing laws. Publius hates the very thought of slavery; he describes it as a form of tyranny in which the slave is "degraded from the human rank, and classed with the irrational animals which fall under the legal denomination of property" [54.4]. But in some important ways slaves were legally recognized by the proposed Constitution and hence protected by the law, and that made of each of them "a moral person, not...a mere article of property" [54.5].

     Finally, he notes that it is admitted that "if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants" [54.6]. And he chastens "the Southern States with the barbarous policy of considering as property part of their human brethren" [54.7]. Clearly, Publius was deeply troubled by slavery. Hence he argues that the Framers were unable to remedy it in the immediate agenda of their new regime. Hence the embarrassing compromise that Publius is forced to explain and defend, and more or less justify, in spite of deep personal misgivings about the whole matter.

     There is one other ironic twist in Publius' treatment of apportionment in the House. He slips in a maxim: "Government is instituted no less for the protection of the property, than of the persons, of individuals" [54.10]. If that idea now seems strange, it is because we do not usually see that by "property" the Framers, and specifically Publius, had in mind life and liberty and especially the religious opinions of mankind.

     Once again Publius exhibits the fundamental difference between the traditional federation or league of sovereign states and the kind of compound republic that he holds the Framers had crafted. "Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States" [54.11]. What this signals is that the "more perfect Union" would not be merely a league of sovereign states, but a compound republic that was partly federal and partly national.

The Federalist No. 55; Independent Journal, February 13, 1788 - Madison

THE REGULATION OF ELECTIONS AND THE SIZE

OF THE HOUSE OF REPRESENTATIVES

     After his treatment of the question of apportionment of the House of Representatives, Publius takes up the question of the size of that body. And he notices that the critics have made a number of contradictory charges against the proposed Constitution. Certain critics charge that "so small a number of representatives will be an unsafe depository of the public interests" [55.1]; and also that this problem will grow as the population increases. In addition, they also charge that membership in the House will be taken from that class of citizens who "will not posses a proper knowledge of the local circumstances of their numerous constituents" [55.1]–that it will be taken from that class who will "be most likely to aim at a permanent elevation of the few on the depression of the many" [55.1]. In this essay, Publius responds to the first of these criticisms.

     Some middle ground or mean must be found, Publius argues, between a representative body that is either too small or too large. He expresses his hostility to very large gatherings to conduct public business and set policy. "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob" [55.3], he asserts.

     Tucked away at the end of this essay is an important statement that indicates how the Framers viewed human nature. And it was from their understanding of human things that they fashioned their understanding of the mischiefs that threaten republics, from which they have devised the appropriate ways of curing the diseases of republican government. "As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem in confidence. Republican government presupposes," according to Publius, "the existence of these qualities in a higher degree than any other form" [55.15].147virtue among us? To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea." See Thomas L. Pangle, "Civic Virtue: The Founders' Conception and the Traditional Conception," in Constitutionalism and Rights, ed. by Gary C. Bryner and Noel B. Reynolds (Buffalo, NY: State University of New York Press, 1987), 105-140, at 106. Clearly we do not have here an argument by Publius that man is essentially evil, but, instead, a realistic and subtle understanding of various human potentials. And we do not have an indication of the abandonment of the belief that republican government has severe requirements for human excellence or virtue, but a clear and emphatic restatement of that requirement. Publius ends his comments on human nature with the following: "Were the pictures which have been drawn by the political jealously of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another" [55.15]. Attention might be given to the other places in The Federalist where the question of the Framers view of man comes to the surface.148

The Federalist No. 56; Independent Journal, February 16, 1788 - Madison

THE RATIO OR SIZE OF THE HOUSE

     Publius takes up the second of his list of objections [see 55.1] that critics have made to the scheme of representation in the House: that "it will be too small to possess a due knowledge of the interests of its constituents" [56.1]. Publius grants that representatives "ought to be acquainted with the interest and circumstances of...constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate" [56.3]. That seems rather obvious. What then are the objects of legislation which the House of Representative will confront? They turn out to be essentially three: commerce, taxation and the militia or military affairs [56.4]. Publius then examines each of these objects with an eye to discovering whether the charge of the critics would apply, and he finds the charges wanting.

The Federalist No. 57; New-York Packet, February 19, 1788 - Madison

THE QUALIFICATIONS OF MEMBERS OF THE HOUSE

     In this essay Publius takes up the third charge [see 55.1] brought against the House of Representatives by its critics: "that it will be taken from that class of citizens which will have the least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few" [57.1]. Building on a notion of representation already set forth in Federalist 35, he responds by arguing that the "aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern and most virtue to pursue, the common good of the society, and in the next place, to take the most effectual precautions for keeping them virtuous" [57.3].

     Publius' use of the word "precaution" in this formulation parallels his employment of the expression "auxiliary precautions" in Federalist 51, where he mentions that a reliance on the people is no doubt the primary control on the potential tyranny of rulers, but that experience has taught the necessity of having in place auxiliary precautions. Here he implies that there are devices that may tend to require or even generate virtue on the part of the ruler. What might those be? Or, more specifically, what would tend to accomplish that with members of the House? "The means relied on in this [republican] form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation on the term of appointments as will maintain a proper responsibility to the people" [57.4]. Publius is hereafter very much concerned with showing that the proposed Constitution in its various features provides a proper (or due) responsibility to the citizens, and hence, an answerability to the people [see 63.4-8; 70.5, 15; 77.6, 11; 78.5]. Proper or due responsibility becomes a way of talking about a fundamental characteristic of republican government–what he eventually calls "due dependence on the people" [see 77.11, for example].

     With this principle in mind, Publius then finds it rather easy to respond to the critics of the House of Representatives. The electors of the House are simply the people of the United States [see the interesting language in 57.6, where he makes this point]. Hopefully the electors will prefer to select members to represent them who "will be somewhat distinguished" by wisdom and virtue [57.9]. In any case, the members of the House will be bound to their constituents by more than selfish motives. Pride, vanity, the love of fame, and so forth, will tend to help insure that representatives will stay close to civic virtue and attentive to the electorate [57.11], as will "duty, gratitude, interest, ambition itself" [57.16]. But, in the end, even these may fail. "It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise?" [57.16].

The Federalist No. 58; Independent Journal, February 20, 1788 - Madison

CONSIDERATION OF OBJECTIONS TO THE HOUSE OF REPRESENTATIVES

     Publius takes up the objection that the number of members of the House will not be augmented as increases take place in the population [58.1]. If the objection were true, he admits, it would identify a serious flaw in the proposed plan. But it is simply false. It appears to have been based on a serious misunderstanding. He then fashions his response by drawing attention to experience of the various States with their own provisions for representation.

     After dispensing with the initial complaint, Publius considers a number of additional miscellaneous objections to the way the Framers structured the House of Representatives. An important theme emerges in these replies to critics of the House. There are suggestions here and there in this essay [see 58.17] that the theory behind the structuring of the legislative department, including the House, is one that has in mind avoiding what Publius in one place calls "hasty and partial measures" [58.17], even though the process of legislation is made to depend upon majorities and is also dependent upon the people. Publius is clearly concerned about demagoguery, because, as he says, in such cases "ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation" [58.15]. These are evils he hopes to show have been avoided or at least lessened in the new plan.

The Federalist No. 59; New-York Packet, February 22, 1788 - Hamilton

CONGRESS AND THE REGULATION OF ELECTIONS

     Congress is given the authority to regulate the election of its own members. The State legislatures, under the proposed plan, can regulate the time, place and manner of such elections, except that Congress may alter such prescriptions, except for the choosing of senators. Some objected to that arrangement. Someone, Publius argues, must control the matter [59.4]. Why put that authority in the hands of Congress? One reason is that it gives a means of self-preservation to that body [59.3]. To place the matter of regulating the election of Congress entirely with the State legislatures would place Congress in the hands of those bodies. "If we are," reasons Publius, "in a humor [or mood] to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government" [59.5]. And since we have to trust someone on this matter, it seems reasonable "to trust the Union with the care of its own members" [59.5].

     To defend the provisions concerning the election of Congress in the proposed Constitution, Publius eventually paints a rather grim hypothetical picture. He mentions the possibility of "particular rulers in particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States" [59.11]. These, he speculates, may turn eventually against the Union and using the regulation of elections, if they had been given the opportunity, to destroy it. That portrait is quite consistent with the first portion of The Federalist.

The Federalist No. 60; Independent Journal, February 23, 1788 - Hamilton

MORE ON THE POWER OF CONGRESS TO REGULATE ELECTIONS

     Publius defends granting the ultimate authority to regulate congressional elections to the Congress with the argument that such an arrangement could not possibly lead to "the exclusion of any State from its share of representation" because "the interest of all would, in this respect, be the security of all" [60.1]. Only the most improbable abuse of power could conceivably deny to any State its equitable share of representatives. And such an outrage would, Publius argues, lead to "an immediate revolt of the great body of the people" [60.2].

     Perhaps such an abuse of authority might take place "in certain turbulent and factious seasons...in respect to a particular class of citizens, by a victorious and overbearing majority," but that this might exit by the deliberate policy of the government seemed to Publius to be both "inconceivable and incredible" [60.2]. The reason that Publius gives [see 60.3 and cf 60.6 and 10] is similar to his earlier argument for the moderation of the politics of factions by a compound and extended commercial republic in Federalist 10, 14 and 51. Publius presses the argument for the benign effects of commercial endeavors and developments [60.10]. He ends by arguing that the Constitution entails a self-regulating mechanism in the affairs of Congress. The reason is that "there is no method of securing to the rich the preference apprehended [by certain of the adversaries of the Constitution], but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government" [60.12].

The Federalist No. 61; New-York Packet, February 26, 1788 - Hamilton

MORE ON THE POWER OF CONGRESS TO REGULATE ELECTIONS

     In this essay, Publius fleshes out the arguments concerning the constitutional authorization on the regulation of elections by Congress. He argues for uniformity in the time that elections are held, requiring Congressional supervision of the matter. Like the argument in Federalist 10, Publius speaks of finding "a cure for the diseases of faction" [61.4] by removing the regulation of election from the States, where factions presumably have more direct access to public policy.

THE SENATE

The Federalist No. 62; Independent Journal, February 27, 1788 - Madison

THE PURPOSE AND COMPOSITION OF THE SENATE EXAMINED

     In this essay, Publius takes up the question of the composition of the Senate. It should be noted that he begins by outlining the argument to be developed in this essay [See 62.2.]

     Under the first topic–the qualifications of senators–Publius notes that they should have, in addition to the minimal qualifications prescribed in the Constitution, a "greater extent of information and stability of character" [62.3] than would be typical of members of the House of Representatives. They should possess a share of talents that could claim a share of public confidence. Such fit characters would, presumably, tend to act as something of a brake on the possible impetuosity of the House of Representatives, the chamber more directly responsible to the people.

     The appointment of senators by the state legislatures149 was originally intended to give "to the State governments" an agency in the national government, and also to provide "a convenient link between the two systems" [62.4] of the compound republic. One can speculate about the effects of the change from indirect to direct election of the Senate. The equal representation of the States in the Senate was, among other things, a "constitutional recognition of the portion of sovereignty remaining in the individual states" [62.6; cf. 39.14]. Does the direct election of the Senate have the tendency to reduce somewhat the importance of the States in the compound republic?

     The Constitution provides for equal representation of each State in the Senate of the United States. The immediate occasion for this provision was the conflict in the Philadelphia Convention between those representing "the opposite pretensions of the large and the small States," according to Publius [62.5]. But there were deeper reasons for such an arrangement. As we have already seen in examining Federalist 51, there are powerful theoretical reasons for bicameralism. These flow from the desirability of dividing the legislature in order to provide a scheme of legislative balances and checks. And, in addition, the Senate also provides a vehicle for manifesting the features of what Publius calls "a compound republic" [62.5]. By that Publius seems to mean a republic that is at once both national–that element in the legislative department is manifest in the House of Representatives–and also federal, with the Senate representing the States, and especially the State legislatures [see 51.13]. Hence, in the Senate we see "a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty" [62.6]. Publius claims that in these arrangements we can see that the Framers have not, as was sometimes charged, made an "improper consolidation of the States into one simple republic" [62.6].150 It is not a simple but a compound government that the Framers have provided [23.9]. This should remind the reader that Publius admitted in Federalist 39 that, after all was said, "the proposed Constitution...is, in strictness, neither a national nor a federal Constitution, but a composition of both" [39.18]. It seems that is what he has in mind when he uses the expression "compound republic" in this and other portions of The Federalist.

     But, again, harking back to his argument for legislative balances and checks, Publius notes that the Senate also provides an "additional impediment...against improper acts of legislation" [62.7]. "It must be acknowledged," he claims, "that this complicated check on legislation may in some instances be injurious as well as beneficial," but he defends such a restraint, whatever else might be said about it, "because the facility and excess of lawmaking seem to be the diseases to which our governments are most liable" [62.7]. The reasons for this view were given earlier and more particularly in Federalist 51, where it was shown that in republics the legislative power is paramount [51.9; and cf. 48.3, 4; 49.9; 71.4; 73.5].

     Publius next considers the question of the duration of appointments for senators. He defends the tenure of senators by invoking the doctrine of legislative balances and checks. By "dividing the [legislative] power...a salutary check on government" is provided [62.9]. This is a way of overcoming that great "misfortune incident to republican government." "Ambition and corruption" may take over and the public good be sacrificed. But remedy for such a disease is found in a bicameral legislature, that is, by "dividing the power" between the houses of the legislature. These two houses can also be made dissimilar, thereby giving them, as much as possible, an interest in checking each other [62.9; cf. 51.8]. and also the power to do so.

     An additional special quality is to be found in the Senate. Since the senators are elected for a longer term than Representatives, they will perhaps have less of a tendency "to yield to the impulse of sudden and violent passions, and be seduced by factious leaders into intemperate and pernicious resolutions" [62.10]. And, "good government implies," among other things, "a knowledge of the means by which objects can be attained" [62.12]. Senators may thereby also tend to gain greater knowledge and acquire more wisdom by serving a longer term of office than members of the House of Representatives [62.11].

     Finally, Publius sees in the Senate the possibility of a body of men at least potentially capable of restraining the torrent of legislation that threatens the calamity of what he calls "mutable policy" [62.16]. He claims that the vast outpouring of legislation "poisons the blessings of liberty itself" [62.16]. How can that be? A torrent of legislation gets in the way of the "rule of law" by generating laws "so voluminous that they cannot be read, or so incoherent that they cannot be understood" [62.16]. Since law is "a rule of action," it cannot effectively function as a rule, if it is "little known, and less fixed" [62.16]. Publius then points to the damaging effects of a "mutable policy" on commerce and other affairs of mankind [62.17-19].

The Federalist No. 63; Independent Journal, March 1, 1788 - Madison

THE PROPER STRUCTURE OF THE SENATE–LENGTH OF TERM

     In this essay, Publius takes up the general question of the term of appointment in the Senate. He sees in the Senate the possibility of a body of men dedicated to the nation, rather than merely interested in serving the locale from which they were elected. Senators may be able to develop what Publius calls "a due sense of national character" [63.1]. And consequently they may avoid, somewhat, being warped "by some strong passion or momentary interest" [63.2]. In that way they may be able to act as a salutary break on the impetuosity of the other branch of the national legislature.

     The House of Representatives will provide a legislative body more directly responsible to the people, and in that sense it will be the more "democratic" of the two houses [63.4]. The need for responsibility in elected representatives was stressed by certain of the adversaries of the Constitution, and Publius takes up the theme [63.4-8]. The critics sometimes complained that the complexity of the new government would detract from the possibility of the citizens holding anyone responsible, or making anyone answerable, for what comes out of the legislature.

     Publius responds to the criticism by arguing that there will be a due responsibility, and answerability, in the Senate, even with the extended tenure of the senators. In any case, those not "blinded by prejudice or corrupted by flattery," will see that an institution such as the Senate, with a long tenure, may sometimes be necessary as a defense of the people against their own temporary errors and delusions. The cool and deliberate sense of the community ought to prevail in all governments. It must prevail in a free governments, and under the proposed Constitution the virtue of moderation may ultimately prevail over the views of its rulers. There are, however, "particular movements in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be most ready to lament and condemn" [63.9]. It seems that what Publius has in mind by the expression "due responsibility to the people," is a responsibility to the true interests, the common interests, the public good, of the people, which may not be fully manifest in public opinion at any given moment. And the tenure of the Senate may help check the momentary passion of the people and subsequently facilitate the attainment of the public good in the long run.

     At this point in his argument, Publius mentions that he had earlier set out the evils that flow from "the infection of violent passions" [63.11] in the struggles of factions bent on having their own way at the expense of the public good. These evil effects of factional politics were, from his point of view, more prevalent in "lesser republics" than in properly "extended" ones [63.11].

     The concern of the adversaries of the Constitution is that the Senate will "transform itself into a tyrannical aristocracy" [63.19], by acquiring "a dangerous preeminence in the government." Publius "general reply" is "that liberty may be endangered by the abuses of liberty as well as by the abuses of power" [63.20]. Once again this points to the difficult choice that must be made in republics between safety or security and liberty. The scope and limits of the legislative department are such that it is difficult to imagine that the Senate could possibly "arrive at the object of lawless ambition, through all" of the obstructions that have been set up to check wanton discretion in the legislature [63.21]. And the experience with other legislative bodies, roughly analogous to the proposed Senate, does not indicate that there is a serious ground for concern [63.22-23]. Publius' expectation is that the Senate will display "an attachment to the public good" by a "display of enlightened policy" that will recommend it to the esteem of the American people [63.25].

     [Historical Note: on March 1, 1788, Rhode Island called for a statewide referendum on the proposed Constitution, rather than a ratification convention.]

The Federalist No. 64; Independent Journal, March 5, 1788 - Jay

THE POWERS OF THE SENATE: THE TREATY POWER

     In this essay, Publius next examines the role of the Senate in making treaties. He holds that the involvement of the Senate in treaties checks the possible excesses that might come from the executive department exclusively dealing with other nations. The President is indirectly elected, which avoids the difficulties that might arise by turning the matter over to "elections by the people in their collective capacity, where the activity of party zeal...often places men in office by the votes of a small proportion of the electors" [64.3].

     The President is authorized by the Constitution to conduct negotiations. This facilitates dispatch and also makes secrecy possible, where desirable [64.7]. But, in the conduct of foreign relations, the President must obtain the advice and consent of the Senate. The mixing of authority over treaties is warranted, according to Publius, because it provides an effective way of conducting foreign relations, as well as providing a restraint upon the President. This is appropriate because the making of treaties is neither clearly a legislative nor an executive act, but partakes of both functions [64.10].

     Obviously, Publius is describing a complex process when he describes the conduct of foreign relations, including the negotiation of treaties. The anti-Constitution party tended to object in principle to complex government. They hoped, instead, that simple and direct government would permit the people to assess responsibility more competently and require answerability from their representatives. With respect to the responsibility of senators, "it is difficult to conceive how it could be increased," according to Publius. "Every consideration that can influence the human mind, such as honor, oaths, conscience, the love of country, and family affection and attachments, afford security for their fidelity" to the common interest and public good under the proposed Constitution, which "has taken utmost care that they shall be men of talents, and integrity" [64.15]. And if all else fails, there is always "fear of punishment and disgrace" which also has been made to operate as a motive for good behavior through the provision for impeachments [64.15].

The Federalist No. 65; New-York Packet, March 7, 1788 - Hamilton

THE POWERS OF THE SENATE: THE IMPEACHMENT POWER

     In this essay Publius examines the impeachment power. "A well-constituted court for the trial of impeachments is," according to him, "an object not more to be desired than difficult to be obtained in a government wholly elective" [65.2]. The problem is that an instance of alleged misconduct and violation of public trust is such that it can hardly fail to "agitate the passions of the whole community, and turn it into parties more or less friendly or inimical to the accused. In many cases it will connect itself to preexisting factions, and will enlist their animosities, partialities, influence, and interest on the one side or the other" [65.2]. Under such circumstances, how is the truth to be determined, other than by "the comparative strength of the parties" [65.2].

     When impeachments are turned over to a body "resting entirely on the basis of periodic elections," it is quite likely that the "tools of the most cunning or the most numerous faction" will have the final say [65.3]. The proposed Constitution confronts that problem by turning to that body–the Senate, which should be the most insulated from the distempers of faction–to make the final decision on cases of impeachment [65.4].

     Publius is also anxious to show that the Supreme Court should not be required to deal with matters of impeachment. But he allows that the rules in the Constitution governing impeachments may be flawed. "If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would," he claims, "soon become a general scene of anarchy, and the world a desert" [65.11].

The Federalist No. 66; Independent Journal, March 8, 1788 - Hamilton

ANSWERS TO OBJECTIONS TO THE SENATE AS COURT OF IMPEACHMENT

     Publius continues his replies to criticisms of having the Senate sit as a court in impeachment proceedings. He considers four additional objections to that feature of the proposed Constitution.

     Some critics argue that the impeachment procedure "confounds legislative and judicial authorities in the same body, in violation of that important and well-established maxim which requires a separation between the different departments of power" [66.2]. In Federalist 47, Publius has already set out "the true meaning of the maxim." There it was shown that the "partial intermixture of those departments for special purposes...is even, in some cases, not only proper but necessary to the mutual defence of the several members of the government against each other. The absolute or qualified negative [that is, veto] upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former" [66.2]. Applying the argument earlier set out for legislative balances and checks to the question of impeachments, Publius holds that the use of the legislative department in impeachments is "an essential check in the hands of that body upon the encroachments of the executive" [66.2]. And by dividing the rendering of a bill of impeachment–done by the House of Representative–from the trial by the Senate, some safeguard has been established against the threat that a "factious spirit" in either might unjustly interfere with the process.

     Publius also replies to the objection that the use of the Senate as a court of impeachment is "too aristocratic" [66.4-7], and that, since the Senate has to give advice and consent in the appointment of officers to the executive department, they might be "too indulgent judges" of the conduct of those they assisted in placing in office [66.8]. He then considers the charge that the involvement of the Senate in making treaties would compromise their ability to judge alleged abuses by the executive in the conduct of foreign relations [66.11-13]. Finally, Publius assures his readers that the Senate would have sufficient motivation "to vindicate their own authority" [66.14], and that we may therefore "count upon their pride, if not upon their virtue," to remain sufficiently uncorrupted by the blandishments of an Executive bent on misbehavior in some manner [66.14].

B. THE EXECUTIVE DEPARTMENT

The Federalist No. 67; New-York Packet, March 11, 1788 - Hamilton

THE CRITICS MISREPRESENTATIONS OF THE EXECUTIVE

     With Federalist 67, Publius begins the examination of the executive department. He eventually provides a basic thematic outline of his arguments in Federalist 70 [see 70.4].

     The executive magistrate or presiding officer, under the proposed Constitution, will be a republican and not a monarchial office, Publius argues. Those who charge that the President would be or become a monarch "signalize their talent of misrepresentation" [67.3] when they picture him "with a diadem sparkling on his brow and the imperial purple flowing in his train," while "seated on his throne surrounded with minions and mistresses," and so forth [67.3]. Perhaps, more than any other essay in The Federalist, this one complains most strongly about the ways in which the adversaries of the proposed Constitution misrepresented the issues or facts [see especially 67.14], and hence constitutes a polemic against those critics who would reduce the American executive to an instance of monarchy, or otherwise liken the two.

The Federalist No. 68; Independent Journal, March 12, 1788 - Hamilton

THE MODE OF ELECTING THE PRESIDENT: THE ELECTORAL COLLEGE

     Publius explains the intentions of the Framers in seeking the indirect election of the President through an Electoral College. He grants that the people ought to "operate in the choice of the person to whom so important a trust was to be confided" [68.2]. But the people, he argues, ought to operate indirectly–the actual election of the President ought to be put in the hands of those "most capable of analyzing the qualities adapted to the station" of the presidency [68.3]. Indirection in the election of the President will tend to minimize the possibility of "tumult and disorder" in the nation [68.4], as wise men strive to fill the station of the Presidency with those "characters preeminent for ability and virtue" [68.9].

     Even though the Electoral College has not functioned the way the Framers thought that it would, Publius' arguments for that institution provide as insight into the theories, as well as the hopes and fears, that went into the fashioning and justification of the Constitution. For example, he argues for the desirability of avoiding "cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils" [68.5]. Publius fears that ambitious and skillful foreign powers might try "raising a creature of their own to the chief magistracy of the Union" [68.5]. Though that does not seem to have been possible, even without the functioning of the Electoral College as the Framers intended, it is also clear that foreign powers have sought and even gained some influence from time to time in the executive department, especially with those close to the President, as well as in the legislature. The efforts of the Framers to fashion institutions to avoid such corrupting influences seems entirely warranted.

The Federalist No. 69; New-York Packet, March 14, 1788 - Hamilton

THE NEED FOR A SINGLE EXECUTIVE MAGISTRATE

     Publius argues for vesting the executive authority in a single rather than a multiple magistrate. In doing so the Convention followed closely the pattern set out in the more respectable State constitutions [69.2]. He next addresses the limitations and restraints placed upon the President or Chief Magistrate by the Constitution. The President has been given a "qualified negative" (or what we know as a veto) over actions of the legislature, since his veto can be over-ridden by an extraordinary majority in the legislature [69.5]. The President can also be impeached [69.4].

     Publius then examines the language in the Constitution that makes the President "commander-in-chief" of the military services, including the militia of the States, when they are called into national service; his power to grant reprieves and pardons; and his duty to take care that the laws are faithfully executed, and so forth [69.6]. He compares and contrasts the grants of power to the President with the English monarch and also the governor of New York. Many of the comparisons between the President, under the proposed Constitution, and the English monarch are intended to show the careful manner in which the Framers limited the Presidency and hence to distance their new executive magistrate from the prime example of monarchy in the minds of Americans at that time.

     In explaining the clause making the President "commander-in-chief," Publius argues that the Congress is to make war and not the President.

The Federalist No. 70; Independent Journal, March 15, 1788 - Hamilton

THE NEED FOR UNITY AND ENERGY IN THE EXECUTIVE DEPARTMENT

     In the first paragraphs of this essay, Publius argues for the necessity for vigor (or power) in the executive. A carefully limited executive department is not one that lacks the necessary energy to execute the laws. Publius bluntly opposes those who hold "that a vigorous executive is inconsistent with the genius of republican government." He does so because he feels that it has been demonstrated that "energy in the Executive is a leading character in the definition of good government" [70.1]. Vigor and energy are necessary in order to protect "the community from foreign attacks," to protect property, to insure "the steady administration of the laws," and "to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy" [70.1]. Publius then contrasts an energetic with a feeble executive.

     At this point Publius presents a thematic outline of the remainder of his treatment of the executive department. It is clear that he desires to link energy to republican principles, or to due dependence on the people, and to the necessity of safety.

     In an cryptic or enigmatic little paragraph [see 70.4], Publius set out what will follow in his treatment of the executive: "The ingredients which constitute energy in the Executive are, first, unity [taken up in Federalist 70]; secondly, duration [taken up in Federalist 71 and 72]; thirdly, an adequate provision for its support [taken up in Federalist 73]; fourthly, competent powers" [taken up in Federalists 74, 75, 76, and 77].

     An energetic executive, Publius argues, (1) needs to be unified–hence a single executive magistrate, (2) needs duration in office, and also (3) needs an adequate financial support, as well as (4) "competent powers" [70.4]. These may be safely entrusted to the executive department when there is also "a due dependence on the people," and "a due responsibility" [70.5]. Safety is thereby linked to responsibility. Dependence and responsibility, when properly fashioned, make of the executive department a genuinely republican institution. These issues come up again when Publius reaches the end of his treatment of the executive [see 77.11], when he takes up what he calls "republican safety." There Publius points out that he has "endeavored to show that..., as far as republican principles will admit, all the requisites to energy" are present in the executive department in the proposed Constitution. All that remains for him to do is to show that "it also combine[s] the requisites to safety, in a republican sense,–due dependence on the people, a due responsibility" [77.11]. In his summary he claims to have dealt with these issues as he was investigating each objection to the structure of the executive [77.11].

     A case is made by Publius for a single executive magistrate, rather than a plural executive [70.6]. Unity is conducive to the proper energy because it facilitates secrecy and dispatch, as well as decision and activity, rather than passivity [70.7]. Publius also contrasts the desirable energy of a single executive magistrate with a feeble plural executive [70.8-10]. His most telling argument against a feeble plural executive–one clearly lacking the necessary energy–is that "they might split the community into the most violent and irreconcilable factions" formed on the basis of personal attachments [70.11]. It is instructive to examine the woes he cites about the evils that flow from such factional quarrels [70.12]. Publius held that a responsible single executive magistrate–one with "due dependence on the people" and also "due responsibility"–could help restrain the eagerness of the legislature for quick and perhaps hasty and unwise decisions. It could "promote deliberation and circumspection, and serve as a check on the excesses in the majority," by smoothing out somewhat the "jarrings of parties" at work in the legislature [70.13].

     Publius responds to the charge that such a complex government makes it difficult for the people to hold anyone responsible for what goes on. But unity in the executive cannot be the source of this problem, for Publius then insists that "one of the weightiest objections to a plurality in the Executive...is, that it tends to conceal faults and destroy responsibility" [70.15]. What Publius calls "due responsibility" must include the possibility for the people being able to fix blame for faults in government [70.15]. A plural executive would make that difficult if not impossible. The Constitution makes this responsibility possible in the executive department by providing for a single rather than a plural executive.

The Federalist No. 71; New-York Packet, March 18, 1788 - Hamilton

THE QUESTION OF THE DURATION IN OFFICE OF THE EXECUTIVE

     A proper duration, or length in office, facilitates the necessary energy in the Executive in two ways: (1) it generates "personal firmness" in the execution of "constitutional powers," and (2) it also enhances the "stability of the system of administration..." [71.1]. Publius provides reasons for extending the duration in office of the President to four years. He begins with the reflection that "it is a general principle of human nature, that a man will be interested in whatever he possess, in proportion to the firmness or precariousness of the tenure by which he holds it..." [71.1]. If the President were only to hold office for a short period of time, he would be much more inclined to be indifferent to his duty and to "feel too little interested in it, to hazard any material censure or perplexity, from the independent exercise of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body" [71.1]. Obviously what Publius expected of the President was an executive magistrate who would not manifest "servile pliancy...to a prevailing current, either in the community or in the legislature" [71.2].

     A due dependence on the people, and "Republican principle, demands, that the deliberate sense of the community should govern the conduct of those" entrusted with executive authority, "but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests" [71.2]. Publius thought "that the people commonly intend the PUBLIC GOOD," but they may sometimes make mistakes about the content of that good precisely because they are beset "by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate; by the artifices of men, who posses their confidence more than they deserve it..." [71.2].

     A considerable duration in office provides a way of insulating the President from such ill-humors so that the office may function as a safeguard for the public good by withstanding "the temporary delusion" that may infect the legislature, or even the people, by providing the possibility of a "cool and sedate reflection" [70.2]. Publius thought it "certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision" [71.3]. The principle behind this argument is exactly that which "teaches the propriety of a partition between the various branches of power" so that they may be independent of each other [71.4].

     The independence of the President from the whims of Congress is necessary precisely because of "the tendency of the legislative authority to absorb each other..." [71.4], as was shown earlier in The Federalist [see especially 51.9]. "In governments purely republican, this tendency is almost irresistible" [71.4]. Publius thus argues for what he calls "firmness" [71.6 and 7, for example] in the Executive to insure the energy and vigor necessary for the office to provide an effective check against the legislature bent on "drawing all power into its impetuous vortex," to use Publius' potent language [48.3].

The Federalist No. 72; Independent Journal, March 19, 1788 - Hamilton

MORE ON THE DURATION IN OFFICE OF THE EXECUTIVE;

REELECTION OF THE PRESIDENT

     Publius takes up the question of the relationship of duration or length in office and the stability of the administration of government. He reasons that a proper duration will necessarily enhance stability. Once that point has been made, he is prepared to argue for the reeligibility of the President, on the grounds that re-election would further enhance stability [72.1]. In addition, the possibility of being elected again will act to deepen "the inclination and the resolution to act his part well" [72.2].

     Publius' strategy in defending the reeligibility of the executive magistrate or President is to point the kinds of motivations that one might expect to work on a President to enhance his performance and to keep the one holding the office on the paths of civic virtue and the public good. So he finds "that desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interest coincide with their duty. Even the love of fame, the ruling passion of the noblest minds," can be made to work to keep the Executive doing his constitutional duty [72.4]. This view is consistent with the view of Publius that "ambition must be made to check ambition" [see 51.5-6]. Publius thinks that, in the case of the Executive, "avarice might be a guard upon his avarice. And add to this that the same man might be vain and ambitious, as well as avaricious" [72.5].

     Publius also lists a number of ill-effects that might well result from denying reeligibility to the Executive. These include, among other things, the potential loss of the knowledge and skill gained from valuable experience [72.8; and cf. 72:9-10].

The Federalist No. 73; New-York Packet, March 21, 1788 - Hamilton

AN ADEQUATE PROVISION FOR THE SUPPORT OF THE EXECUTIVE;

AND THE NEED FOR COMPETENT POWERS–THE VETO POWER

     Publius insists that without "an adequate provision for the support" of the executive department "the separation of the executive from the legislative department would be merely nominal and nugatory" or trifling [73.1]. Then, echoing earlier references to ineffectual "parchment barriers" [48.3], Publius draws attention to "the insufficiency of mere parchment delineations of the boundaries of each" department of power [53.3], as he begins to make a case for providing the executive department with competent powers [see 53.2].

     The first power, in addition to adequate personal financial support, that the President needs in order to maintain independence from the legislature, is a negative (or veto) on acts of the legislature [73.5; cf. with the discussion of legislative balances and checks at 51.10]. The qualified negative (or executive veto) on legislation "not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or any impulse unfriendly to the public good, which may happen to influence a majority of that body" [73.6].

     Some critics of the Constitution maintained that it should not be supposed that a President will necessarily have "more virtue or wisdom than a number of men" [73.7], but Publius argues that "the propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible," and that "a spirit of faction" or a "love of power" may blemish the deliberations of Congress [73.8]. One purpose of the qualified veto in the hands of the President is "to increase the chances in favor of the community against the passing of bad laws," which may flow "from the contagion of some common passion or interest" [73.9]. The veto is consistent with the principles of a free government, according to Publius, even though it has as one of its purposes the frustration of majorities, which may be moved by some passion or interest consequent to factious or partisan politics and hence opposed to the public good.

     Publius also shows that the qualified negative (or veto) has been used in some of the States and with rather good results. And he argues that giving the President the veto is preferable to turning the matter over to judges who should not be involved in legislation. This argument goes back to the earlier account of the separations of powers in Federalist 47. The reason for Publius' judgment about the wisdom of removing judges from the ordinary business of legislatures, is that it is "impossible to keep the judges too distinct from every other vocation than that of expounding the laws" [73.16] set out by Congress or in the Constitution.

The Federalist No. 74; New-York Packet, March 25, 1788 - Hamilton

THE POWERS OF THE EXECUTIVE continued

     Publius sets forth and defends the granting of certain powers to the President, especially the power to pardon. He calls the power to grant "reprieves and pardons" a "benign prerogative," and one which may help overcome unnecessary severity or cruelty in the administration of criminal justice [74.3].

     [Historical Note: On March 24, 1788, Rhode Island voters, in a statewide referendum, rejected the Constitution by a vote of 2,711 to 239, with only about half of the eligible voters actually taking part. On January 17, 1790, long after all the other states had ratified the Constitution and it had gone into effect, the state legislature of Rhode Island called for a convention to ratify the Constitution, the delegates were elected on February 8, 1790. And on May 29, 1790, Rhode Island finally ratified the Constitution, 34 to 32, with some proposed amendments.]

The Federalist No. 75; Independent Journal, March 26, 1788 - Hamilton

MORE POWERS OF THE EXECUTIVE–THE TREATY POWER CONSIDERED

     The Executive will share, through the advice and consent of the Senate, in the power to make treaties. This would seem to constitute an "intermixture of powers" [75.2]. Publius brushes aside this complaint as a "trite topic," which, he notes, has already been adequately examined and presumably answered elsewhere [75.3; cf. 47.1ff.], where it was shown to be a misunderstanding of the separation of powers, when that doctrine is properly understood. In any case, "the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule" [75.3].

     Some adversaries of the Constitution argue that the power to make treaties should belong solely to the executive department. They felt that it was part of the old power once held by the King to league with other nations (or what was once called the "federative power"). But Publius rejects that view. He holds, that upon close examination, the power to make treaties "will be found to partake more of the legislative than of the executive character" [75.3]. Why? Legislatures are "to enact laws," that is, to set down "rules for the regulation of society, while the execution of laws, and the employment of the common strength...for national defense" seem to be "functions of the legislative magistrate" [75.3]. But the treaty power is not clearly or wholly within either the legislative or executive function, as those functions were understood by Publius. It is therefore properly shared by both departments of government.

     Publius insists that it would have been "utterly unsafe and improper" to entrust the power to conduct foreign relations solely to the elected magistrate [75.4]. There are several reasons why this is true. The President (or his agents) may "sometimes be under temptations to sacrifice his duty to his interest." The reason being that there is a material danger of the agents of the executive department being corrupted by foreign powers [75.4]. Republics are far more vulnerable to this kind of corruption than are monarchies. Republican office holders usually do not have what they may consider sufficient wealth, and hence foreign powers can appeal to their greed or avarice, and simply purchase their services. "An avaricious man might be tempted to betray the interest of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents" [75.5]. Publius notes that "it would require superlative virtue to withstand" all such temptations [75.4].

     By having the treaty power shared by both the executive and legislative departments, the Framers have found a way of minimizing or checking the tendency for public officials to be corrupted by foreign powers.

The Federalist No. 76; New-York Packet, April 1, 1788 - Hamilton

MORE POWERS OF THE EXECUTIVE–THE APPOINTING POWER CONSIDERED

     Publius sets out, in this and the following essay, the appointment power of the President. The people at large could not possibly exercise the appointment power [76.3]. It must be entrusted to some agent. But why the President? The President will presumably "have fewer personal attachments to gratify, than a body of men" [76.4]. And placing the power to appoint with the President is likely to reduce the effects of factious or partisan matters [76.6].

     The requirement of the advice and consent of the Senate is intended to provide a check upon favoritism; this would be "a powerful, though, in general, a silent operation" [76.9]. The failure of the President's nomination to gain the approval of the Senate would tend to lessen the authority or reputation of the Executive. Hence, the mere possibility of the Senate rejecting a nomination would tend to be a strong motive for care in making an appointment by the President [76.10].

     Somewhat incidental to the main line of Publius' argument in this essay are some interesting passages setting forth once again his views on human nature [76.11]. His statements confront the rather common view that the understanding of man which stands behind the work of the Framers is excessively pessimistic, or that it amounts to the view that man is essentially or basically evil, or totally depraved. But Publius argues that the "supposition of universal venality in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments" [76.11]. Even under such dire circumstances there were some "independent and public spirited men." Therefore, one "disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity [honest] of the Senate" sufficient to prevent it from being corrupted by the Executive [76.11].

The Federalist No. 77; Independent Journal, April 2, 1788 - Hamilton

THE APPOINTMENT AND OTHER EXECUTIVE POWERS CONSIDERED;

ENERGY AND SAFETY LINKED

     In this essay we have a further consideration of the appointment power, and a more detailed treatment of how it is shared with the Senate. Publius concludes his treatment of the executive department by describing how the proposed Constitution combines a "due responsibility" and, "in the republican sense,–a due dependence on the people" [77.11]. He strives to show how both "due responsibility" and "due dependence" upon the people can be combined with the necessary energy in the Executive and the safety to ensure the kind of liberty demanded by republican principles [see especially 77.11].

     [Historical Note: Maryland called for a ratification convention on November 27, 1787 and delegates were elected on April 7, 1788. Then on April 26, 1788, and hence prior to the publication of the remainder of The Federalist on May 28, 1788, Maryland became the seventh state to ratify the Constitution, 63 to 11. Then on May 23, 1788, South Carolina became the eight state to ratify the Constitution, 149 to 73, though with proposed amendments.]

C. THE JUDICIAL DEPARTMENT

The Federalist No. 78;151 May 28, 1788 - Hamilton

JUDICIAL INDEPENDENCE; SEPARATION OF POWERS; JUDICIAL REVIEW

     In this essay Publius sets forth and defends the principle of an independent judiciary. But independent of what? The answer: independent as possible of the legislative and executive departments. But Publius insists that to follow this line of reasoning is not thereby to argue that the courts would be superior to the legislature, for he flatly denies that the court's power to declare acts of Congress unconstitutional makes the judicial department superior to the legislature. Instead, he shows how the judiciary must have the power to declare statutes that are manifestly in conflict with the Constitution null and void. Though the power of judicial review is not explicitly mentioned in the Constitution, it results from the principles at work in the separation of powers.152 Publius has already explained what was meant by separation of powers in Federalist 47. The Founders were committed to the idea of the rule of law; they are concerned to insure that the administration of the rules should be separated from the power to make them, otherwise government turns into an affair of arbitrary discretion, caprice and eventual tyranny. And it is the proper province of the legislature to set down the rules; that ought not to be the business of either the executive or the judiciary.

     Publius begins his argument by noting that "in unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out" [78.2]. It was not necessary for him to repeat that part of the argument at this point. Rather, three subordinate questions are examined: (1) the manner of appointment of judges; (2) the question of the length of their tenure; (3) the apportionment of authority between different courts [78.3]. The same principles apply to the appointment of judges that apply to officers in the executive department. That question was already considered in Federalist 77 and 78. Publius is now left with the questions of the tenure or duration in office of judges, the provision for their support and how they can be held properly responsible to the people [78.5].

     An independent judiciary helps to insure "an impartial administration of the laws" [78.6]. And judges are made independent by holding their appointments "during good behavior." That standard, according to Publius, is "certainly one of the most valuable of the modern improvements in the practice of government" [78.6]. Even in a monarchy an independent judiciary functions as an "excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body" [78.6].

     And of the three "departments of power," when there is a proper separation of powers–when the power of setting down the rules is separated from the administration of rules–the judicial power "will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them" [78.7]. Why is that so? Publius explains that the legislative department prescribes the rules and controls the purse; the executive department holds the sword and dispenses honors. The judicial department "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever" [78.7]. It can only take up issues as they come to it in the course of legal disputes that arise within society. And when the judiciary decides such a case, it must still rely on the executive to carry out the decision [78.6]. So it is that "the judiciary is beyond comparison the weakest of the three departments of power" [78.8].

     Publius' comparison of the strength of the three "departments of power" is intended to show, among other things, that the judiciary needs to be staffed by judges holding their office "during good behavior" precisely because it is inherently weak. Judges have virtually permanent tenure–a feature of the Constitution essential to maintaining an independent judiciary. And such independence forms a barrier to the despotism that otherwise would likely flow from the legislature or from the executive departments bent on violating the rule of law.

     Though oppressions may, of course, "now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter," as long as there is a genuine separation of powers, and hence a rule of law, rather than tyranny. Publius then states his agreement with Montesquieu "that 'there is no liberty, if the power of judging be not separate from the legislative and executive powers'" [78.8] Publius has previously quoted Montesquieu to the effect that "'There can be no liberty where the legislative and executive power are united in the same person, or body of magistrates,' or 'if the power of judging be not separated from the legislative and executive powers'" [47.8].

     The lesson that Publius then draws from Montesquieu's famous statement is that the real threat to liberty–not just to individual instances of liberty, but to the principle of liberty itself–is from the improper mixture of powers, that is, when the power to set down rules is fused with the power of judging or administering the rules. It follows that "liberty can having nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments" [78.8]. To prevent such an amalgamation of power, since the combination is possible only when the power of administering the law is fused with the executive or legislative power, every effort must be made to make the judiciary independent of the other two departments. The dependence, rather than independence, of the judiciary on the other two powers would threaten the principle of liberty itself. And the protection to liberty afforded by the separation of powers cannot be merely "nominal and apparent" [78.8], if it is to prevent tyranny; it must be a real separation that rests on the independence of judges, at a bare minimum, from the control of the other departments over their compensation or emoluments, to use the word Publius employs.

     Publius concludes that the "complete independence of the courts of justice is peculiarly essential in a limited Constitution" [78.9, cf. 18; 81.5]. He then explains what he means by a "limited Constitution." It is "one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like" [78.9]. But what exactly can prevent the legislature from passing bills of attainder (that is, statutes imposing criminal penalties on people who were not previously constrained by rules of law)? Certainly it would be folly to rely on "a nominal and apparent separation"–on a mere parchment barrier set out in the Constitution.

     Some way must be found to invoke the passion and interest of people vested with sufficient power and authority to thwart such tyrannical action on the part of the legislature. The Framers turned to the courts for the needed restraint on the tyranny of legislature (and also the executive), and it amounts to what we now know as judicial review. "Limitations of this kind," according to Publius, "can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing" [78.9]. At this point in his argument, Publius has introduced and defended the doctrine of judicial review.

     Publius grants that some are troubled by the courts having the "right" or power "to pronounce legislative acts void, because [they are] contrary to the constitution" [78.10], but he claims that the power of courts to declare statutes that violate the constitution null and void is not novel. But something Publius labels "this doctrine" is said by him to be "of great importance in all the American constitutions" [78.10]. Is "this doctrine" what we know as judicial review? Or is it the common assumption made by those Publius calls elsewhere the "bigoted idolizers of State authority"? [80.10]. Some have read the expression "this doctrine" as alluding to judicial review, while others have understood it to refer to legislative supremacy. But legislative supremacy is a vague phrase. If that is what Publius is referring to by "this doctrine," it is at least a version of the doctrine held by adversaries of the proposed Constitution, some of whom rightly saw that the new plan entailed judicial review and who saw it as somehow a mistake because it had relegated the authority of the legislature. Clearly limiting the power of the legislature is exactly what Publius is defending in this essay under the expression "limited Constitution." And he did so by appropriating the earlier account of the separation of powers in Federalist 47, with the additional limitation of legislative balances and checks which was set out in Federalist 51.

     Publius was clearly not inventing the doctrine of judicial review in this essay, or even setting out for the first time the possibility that the courts would act as the ultimate guardians of the Constitution. In some ways he takes the doctrine almost for granted. He defends it by showing how it is implied in the notion of a limited Constitution. He was, instead, responding to those like the antifederalist Brutus who were deeply troubled by the thought that the courts would have such a power.

     Publius then sets out the reasoning behind the doctrine of judicial review. The doctrine rests on the principle that "every act of delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid" [78.11]. But that leaves open the question of who is authorized to strike down or officially declare void an act by the legislative department considered unconstitutional.

     Why not have the legislature function as the judge of the constitutionality of their own acts? Rephrasing the question reveals the way Publius will argue the issue. The legislature cannot be the ultimate judges of their own powers. That would introduce bias, and make of the legislature a tyranny. If that were to take place we would have sanctioned possible violations of the principles behind the notion of a limited Constitution. If the legislature were itself the final judge of its own powers, there would be no effective limitation on their power, and they could, for example, pass bills of attainder, if they saw fit to do so. The presumption, therefore, cannot be "that the Constitution could intend to enable the representatives of the people to substitute their own will to that of their constituents," even if that cannot be found in "any particular provisions in the Constitution" [78.12]. Publius, like certain of the critics of the Constitution, argues that judicial review is entailed in the very theory of a limited Constitution. He differs from the critics in that he feels that it is a salutary power in the hands of the judiciary.

     What can be inferred, if we accept the proposition that what the Framers gave us is a limited Constitution, is "that the courts were designed to be an intermediate body between the people and the legislature." Hence it is the courts that have the authority to strike down acts that clearly violate Constitutional restrictions on the powers of the legislature [78.12.]. But, ultimately, the people must also be the guardians of the Constitution; the courts are an intermediate body charged implicitly, if not explicitly, with the responsibility of protecting the people from the tyranny of a legislature that has a hankering to go beyond its authority.

     But why are the courts, which are not composed of elected representatives of the people, necessarily charged with the responsibility of acting as guardians of constitutionality under a limited Constitution? Judicial review, Publius argues, is a power vested implicitly in the courts because it is the courts that are in the business of administering law. But the executive also administers law. The difference between the judiciary and the executive hinges on what Publius calls "the proper and peculiar province of the courts" which amounts to the power to interpret the law [78.13]. The executive magistrate, it is true, also administers law, but the executive is not in the business of providing the final say on its meaning–that is what courts do precisely because their business is properly "the interpretation of the law" [78.13].

     In such cases, the courts are faced with two kinds of laws–the Constitution or fundamental law, on the one hand, and ordinary or derivative law, on the other. And when these two kinds of law conflict, the courts are required to prefer the one to the other. And the reason is that "a constitution is, in fact, and must be regarded by the judges, as the fundamental law." And, in a republic, the Constitution is "the fundamental law" precisely because it is an expression of the people who confirmed it, even it they did not draft it.

It therefore belongs to the courts to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people [as expressed in the Constitution] to the intention of their agents [78.13].

     Publius then argues that to grant that the courts must necessarily have the power to declare statutes unconstitutional, is not to "suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes is in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former" [78.14]. He then shows how this follows from a proper understanding of a familiar rule of construction used by the courts which requires that superior rules take precedence over subordinate rules [see 78.15-16]. But he also wants to make it clear that judicial review does not imply that the courts "may substitute their own pleasure to the constitutional intentions of the legislature" [78.17].

     The courts are thus pictured as armed by the Framers with the power necessary to make of them "faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community" [78.21]. In that way they may secure the public good and private rights "against the occasional ill humors of society," but only if they are truly independent of the other two departments [78.22].

     Publius then takes up an additional reason for an independent judiciary. Judges need special qualifications and expert learning. "In order to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents," but these inevitably grow in size and complexity [78.24]. That means that the court needs to be staffed by judges who possess the "requisite integrity with the requisite knowledge" [78.25]. The permanent tenure of judges would perhaps tend to make available to the court those who have acquired "sufficient skill in the laws to qualify them for the stations of judges" [78.25].

The Federalist No. 79; May 28, 1788 - Hamilton

JUDICIAL TENURE AND THE QUESTION OF JUDICIAL INDEPENDENCE

     In this essay Publius continues his defense of the principle of the independence of judges by setting out arguments for a "fixed provision for their support" [79.1]. But the question still remains, how can judges, who have what amounts to permanent tenure, be held properly responsible to the people? One answer is that they may be impeached, but not merely because they seem to manifest what he calls "inability," that is, lack what we would call judicial competence, once they get on the court [79.4, 5]. And Publius also frowns on a rule that would remove judges from office at a certain specified age [79.6].

The Federalist No. 80; May 28, 1788 - Hamilton

THE POWER AND LIMITS OF THE FEDERAL JUDICIARY

     This essay sets forth the principles that limit the role of judges in the judiciary. Publius begins by considering what should constitute the proper objects of judicial power under the proposed Constitution [80.1-2]. He shows that the courts ought to have jurisdiction over all those cases "which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation," and so forth [80.2]. Most of his list hardly seem controversial, at least at this distance, but the language in the item quoted has puzzled some interpreters and it is therefore of special interest. Some have wondered why Publius did not mention judicial review explicitly in this context. But he may well have done just that in the expression "just and constitutional powers of legislation," even though he does not explicitly mention the court in this instance as the agency that provides the safeguard–he clearly did so in Federalist 78.

     The Constitution authorizes jurisdiction in the federal courts for cases where it is assumed that "State tribunals cannot be supposed to be impartial" [78.11]. Controversies between the several States fall into this category. He also explains the meaning of the phrases in Article 3, Section 2 of the Constitution which specify that the power of the judiciary extends to "cases" and "controversies" in "law" and "equity" [80.14-15]. That language seems to have been used as a way of placing certain limitations on the power of the judicial department. The idea being that the courts were not authorized to go looking for matters upon which they could then "legislate." They could only take up issues, if and when, they came their way in the normal process of litigation.

The Federalist No. 81; May 28, 1788 - Hamilton

THE DISTRIBUTION OF JUDICIAL AUTHORITY AND THE SUPREME COURT

     Publius describes and defends judicial review in Federalist 78 seemingly in response to critics of the proposed Constitution like Brutus who are deeply troubled by what they see as a clear implication that the courts would have such an authority under the new plan. This explains why Publius, in Federalist 78, strives to link judicial review to his defense of an independent judiciary in that same essay, by drawing on principles already argued even earlier in Federalist 47, when the doctrine of separation of powers was being clarified. But that argument still leaves ground for critics of the Constitution who see the court as far too powerful and also independent of the people or their elected representatives, when armed with judicial review and also independence from the other two departments of power. This also explains Publius' desire to show that the judiciary is the least dangerous of the three departments of power [78.7]. That claim, however, still needs support, especially after Publius has accepted and stressed his critics assumption that the court could declare statutes passed by Congress unconstitutional, if and when they were in violation of the Constitutional grant of legislative power and that issue was raised in a case or controversy.

     The judicial authority, according to Publius, ought to be hierarchically organized. That would make possible appeals from the State to the National courts, where otherwise appropriate, and from the lower and subordinate courts to the Supreme Court of the United States. The only question about the necessity of having a single "supreme" judicial agent to make final decisions was "whether it should be a distinct body [like the Supreme Court] or a branch of the legislature" [81.3]. But once the decision was made to have a final judicial authority–a Supreme Court–it became troubling to critics of that plan because it seemed to create a body with enormous power.

     It was against that fear that Publius takes up the question of the authority of the Supreme Court. Critics were anxious about the Supreme Court because they feared that the power of court "will be superior to that of the legislature" [81.4], especially since they assumed that it would be armed with the authority to declare laws unconstitutional. And they wondered whether the court, since it will have the power of judicial review, will not also have "the power of construing the laws according to the spirit of the Constitution." They feared that such a power would "enable that court to mould them into whatever shape it may think proper" [81.4].

     Publius, in this essay, flatly denies that there is "a syllable in the plan under consideration which directly empowers the national courts to construe the laws according the spirit of the Constitution, or which given them any greater latitude in this respect than may be claimed by the courts of every State" [81.5]. Yet, he grants "that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution" [81.5]. Here we have Publius arguing for judicial review again. But it is interesting to note that he does not think that judicial review can be deduced "from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution," just as it already had in "most, if not all State governments" where judicial review had already been practiced [81.5].

     Judicial review is thus made to rest on the theory of separation of powers [81.6], or on the principles of what is also called a "limited Constitution" [78.9, 18]. And since that is the case, it would not have been a clear violation of the separation of powers to have vested the review power, which is intended to keep the legislature within its constitutionally prescribed limits, in a special portion or committee of the legislature [81.6]. But that method of keeping the legislature within its grant of power, that mode of "judicial review," would have been less sound than the mode selected or implied by the Philadelphia Convention [81.6], which placed the authority implicitly in the judicial department. Publius provides reasons for accepting this opinion. The passing or ephemeral character of the legislature "militates against placing the judicial power" in some special portion of the legislature [81.6], as would also the vulnerability of the legislature to "party divisions" where the "pestilential breath of faction may poison the foundations of justice" [81.6].

     Publius also responds to those who fear that the proposed Constitution calls for courts that could easily usurp the power of the legislature, and not merely preclude improper extensions of power by Congress bent on going beyond what had been prescribed in Article 1, Section 8. He grants that "particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience" [81.9]. And why is that? The legislative department has the power to impeach judges where they clearly usurp legislative authority. That possibility should act as an effective restraint on the courts [81.9].

The Federalist No. 82; May 28, 1788 - Hamilton

THE QUESTION OF THE JURISDICTION OF THE COURTS

     The question of the jurisdiction of Federal (or National) and the State courts is considered in this essay. Publius shows how the Framers understood the relationship of these courts. The jurisdiction will in many instances be concurrent and "the State courts will retain the jurisdiction they now have, unless it appears to be taken away from them in one of the enumerated modes" already found in the proposed Constitution [82.3].

The Federalist No. 83; May 28, 1788 - Hamilton

THE QUESTION OF THE TRIAL BY JURY

     Publius argues that civil trial by jury is not to be precluded, as some critics charged, by the proposed Constitution; it is just not required. If Congress wants trial by jury in civil cases, then that is possible [83.3, 5-8].

IV. THE ANALOGY OF THE NEW PLAN WITH THE CONSTITUTION OF NEW YORK

     In the introduction to The Federalist, Publius promises to show how the proposed Constitution is analogous to the constitution of New York [1.16]. Though this was promised in Federalist 1, it was never directly undertaken. The reason given by Publius for not at this point taking up this matter is that it was unnecessary to treat the matter directly, since it had been sufficiently covered in the treatment of the other parts of the plan of The Federalist [see 85.1].

V. THE PROTECTION OF REPUBLICAN LIBERTIES

The Federalist No. 84; May 28, 1788 - Hamilton

THE QUESTION OF A BILL OF RIGHTS AND OTHER MISCELLANEOUS ISSUES

     The Framers believe that the proposed Constitution is itself a sufficient protection of republican liberty. There is, therefore, no real need for a separate or additional bill of rights. But the ratification debates generated a clamor among certain critics of the new plan for the addition of amendments to the Constitution that would constitute a distinct bill of rights.

     In this essay, Publius points out that several of the States have constitutions that lack a bill of rights. New York's constitution lacks a bill of rights, yet it has in the provisions that compose the body of the document what amounts to the same thing [84.2]. The constitution of New York provided the protections that would presumably be afforded in a bill of rights [84.2]. The same is also true of the proposed Constitution for the United States. Publius then enumerates the provisions placed in the body of the proposed Constitution that take away the need for the protections sought in an additional bill of rights [84.4]. Special attention is drawn to the provisions of the Constitution that provide security to republican liberty by prohibiting the ex post facto laws, bills of attainder, and so forth. These prohibited items are described as the "favorite and most formidable instruments of tyranny" [84.5]. In addition, the prohibition on granting titles of nobility is described by Publius as "the corner-stone of republican government" [84.7].

     Publius has an additional argument against a bill of rights. Any attempt to list what might constitute such rights, would then presume that everything not explicitly stated as a right is, at least by implication, within the grant of power to Congress [84.9-11].

     [Historical Note: After the publication of the entire text of The Federalist, on June 21, 1788, New Hampshire became the ninth state to ratify the Constitution, 57 to 47, with proposed amendments. On June 25, 1788, Virginia became the tenth state to ratify the Constitution, 87 to 79, also with proposed amendments. On July 2nd, the New Hampshire ratification was read in Congress. And Congress immediately went to work putting the Constitution into operation. New York ratified the Constitution on July 26, 1788, 30 to 27. On August 2, 1788, North Carolina refused to ratify the Constitution until a bill of rights and other amendments proposed by her convention were submitted to Congress and incorporated into the Constitution. But on November 21, 1789, a second South Carolina convention ratified the Constitution, 194 to 77.

     Earlier, on June 8, 1789, James Madison introduced the Bill of Rights (the first ten amendment to the Constitution) in Congress. On September 26, 1789, Congress adopted twelve amendments to the Constitution, including what have become know as the Bill of Rights, and then submitted them to the state legislatures for ratification. On December 15, 1791, Virginia became the tenth state to ratify the Bill of Rights, which then became part of the Constitution.]

     What follows in Federalist 85 seems a fitting commentary on the struggle for ratification.

VI. THE CONCLUSION TO THE SERIES

The Federalist No. 85; May 28, 1788 - Hamilton

AN APPEAL FOR MODERATION IN ASSESSING THE CONSTITUTION

     Perhaps there are still some matters that were left unexamined, and some issues that could have benefitted from a more probing inquiry. Whatever its limitations, the work of Publius has been justly celebrated precisely because it provides a starting place for the thoughtful and informed discussion of the Constitution. From the perspective of the modern reader of The Federalist, a more directly systematic and theoretical treatment of the Constitution might seem desirable. But Publius had an immediate practical concern. That concern has to be kept in mind when reading Publius. He faced the necessity of answering a host of complaints brought against the Constitution by various critics, some of whom were thoughtful, and many of which were rhetorically powerful. It is in the dialectic between the unpledged critic or adversary and the apologist or defender that we gain our understanding of the meaning and wisdom of the Constitution and the intentions of the Framers.

     Now, at the very end of the series of essays responding to the arguments of adversaries of the proposed Constitution, Publius grants that, "according to the formal division of the subject of these papers, announced in my first number, there would appear still to remain two points" which had not been covered [85.1]. He explains that some attention to the analogy of the constitution of New York to the proposed Constitution had already been given, as well as incidental but sufficient attention to "the additional security which its adopting will afford to republican government, to liberty, and to property" [85.1]. These two topics had "been so fully anticipated and exhausted in the progress of the work, that it would not scarcely be possible to do anything more than repeat, in a more dilated form, what has been heretofore said" [85.1].

     Publius includes in this essay some brief observations on the aforementioned topics that he feels do not now need the kind of elaborate or detailed treatment that he had foreseen when he began the series of essays. His remarks stress the ways in which various objections to the proposed Constitution would also, if sound, work against the constitution of New York [85.2]. This is a nice way to end his formal written contribution to the debate over the ratification of the Constitution that was then taking place in New York.

     The "additional securities" provided by the proposed Constitution "to republican government, to liberty, and to property," Publius holds, are to be found

chiefly in the restraints which the preservation of the Union will impose on local factions and insurrection, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals [85.3].

This list amounts to a summary of what Publius thinks he has demonstrated in the course of The Federalist.153 He emphasizes the potential moderating function of the Constitution on the politics of the American people. The complex machinery of government under the new plan will tend to oblige as well as teach thereby moderation.

     When Publius initially introduced these essays, Publius promised to appeal to the enlightened, cool, calm, rational judgment of the citizens of New York, and to avoid, as well, the heated style of party warriors generally, that is, to follow a course of moderation [1.3-10]. He is now in a position to reflect on his project and assess whether he kept his promise. "I have," he assures his readers, "addressed myself purely to your judgments, and have studiously avoided those asperities [that is, harshness, rough or severe manner of address, churlishness] which are too apt to disgrace political disputants of all parties" [85.4].

     Publius has defended a Constitution that he claims has the merit of being able to moderate the violence of faction, and to avoid the partisan excesses of those passions which leads them to ignore the public good. He thus defends public spiritedness against that strident spirit that animates party controversies. He is the friend of moderation in public deliberations and in politics generally. Moderation (and candor) are, for Publius, both political as well as intellectual virtues worth pursuing.

     Publius began his series of essays by lamenting the intolerant spirit with which party or factional contests are conducted in republics, the "torrent of angry and malignant passions" that are so frequently let loose when motives like ambition, avarice, personal animosity, opposition" begin to operate in public disputes [1.8-10]. In such instances those on both sides of a controversy quickly loose sight of the public good. He recommends moderation and even tries to teach a "lesson of moderation" [1.7; cf. 1.9; 3.17; 33.2; 37.3; 43.31], as he calls it, following David Hume [see 85.22],154 that would empower otherwise good and wise men both to pursue the truth and serve the public good, as well as their own higher or real interests. And where zeal is often the manifestation of a dangerous attachment of the immediate and violent passions to some immediate and narrow interest, it is desirable that the citizens of a republic learn to focus their zeal on the public good.

     Publius admits that the public debate over the proposed Constitution has left something to be desired. To some degree it has, as he predicted, loosed a torrent of angry and malignant passions, and divided the citizens into contending parties. He admits to being at times

not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual charges which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation, and the former has in some instances prevailed, it must be my excuse that it has been neither often nor much [85.4].

     Moderation is a virtue, even one of the cardinal virtues. It has long been thought to be one of the prime elements that make for excellence in human beings. Its role is to tame the passions, to school desires, and it leads the one who possess it in paths that assist in the attainment of an understanding of the public good, rather than immediate self-interest. It is sometimes said that The Federalist abandons virtue as the ground for the republican government, and replaces it with mechanical devices designed to take the place of all civic virtue or public spiritedness. Publius was, of course, concerned to defend laws and institutions that were fashioned in ways that would make them less vulnerable to irregular or violent passions and immediate interests of potentially knavish human beings. Of course, in constituting a republic, attention had to be given to potential knavish behavior and therefore to the possible absence of civic virtue, or what Publius also calls "better motives."

     But it is a mistake to see The Federalist as bearing doctrines and defending a Constitution that turn away from a fundamental reliance on a measure of civic virtue. It is also a mistake to see Publius as having advanced a doctrine or as having recommended institutions and laws that no longer ultimately rely on virtue, whatever might be said about the attempt to supply, "by opposite and rival interest, the defect of better motives" [51.8].

     The mechanical devices so carefully set forth and eloquently defended in The Federalist, which may be seen as supplying the defect of better motives, are what Publius called "auxiliary precautions" [51.7; 63.11]. Sad experience, both our own and that which we can glean from history, has taught us to employ these supplementary precautions simply because a reliance on the people–and hence simply on public virtue–seems not to be a sufficient safeguard for republican liberty. But it is also true that, if men were all entirely virtuous, as angels presumably are, there would be no need for government, at least as we now understand it [51.6].

     Publius' final appeal on behalf of the Constitution is an appeal to public spiritedness as much as it is an appeal to calculations of immediate self-interest. The question is, of course, whether the proposed Constitution merits "public approbation" or disapproval. Part of the answer must be found in whether it is calculated to serve "the public safety and prosperity," and it might appear that the answer to that question would not touch upon the moral qualities of the citizens of New York. But Publius thinks that the answer to the crucial question that faces the citizens of New York (and also the nation) demands from the thoughtful citizen "the genuine and sober dictates of his judgment" [85.5].

     And these elements of judgment include considerations of duty and obligation which cannot be served by a mere calculation of immediate interests somehow in league with the passions. Why is that? "No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice," Publius maintains, "will justify to himself, to his country, or to his posterity, an adherence to party: let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation" [85.5]. That language, whatever else might be said about it, has the flavor of an appeal to the citizenry of a virtuous and wise republic. Let them put aside considerations of immediate interest, especially those associated with faction or party, let him look to futurity, to the public good, to the common weal, and then make the decision. When Publius asks that of the citizens of New York in the situation in which they found themselves, he is clearly making an appeal to republican virtue.

     Publius, of course, admits that the proposed Constitution is not perfect [85.6-7], nor does he claim perfection for his defense of the new plan. But its actual or potential imperfections should not lead to its disapproval. Why? "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed" [85.8]. But should not the nation wait until the imperfections have been corrected? And could not those imperfections be corrected by a series of amendments proposed by those who feel concerned about this or that supposed imperfection? Or corrected by a new convention? Publius explains that the Philadelphia Convention had to forge the proposed Constitution in a process of discussion and accommodation over a host of different and difficult matters, all at the same time, or they simply could not have reached a decision to submit the plan to the public.

     But when efforts are made to deal with only one issue, "there would be no necessity for management or compromise, in relation to any other point–no giving nor taking" [85.12]. Single-issues contests do not demand the compromise of a range of narrow interests for the common good; they do not draw from the citizenry the necessity to sacrifice immediate interests for the public good. They therefore fail to call upon or teach moderation. Publius admonishes those who want to pursue a course of amendments to the plan prior to its adoption and prior to some experience with its working to take heed of the remarks of David Hume,

a writer equally solid and ingenious: "To balance a large state or society [says he], whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to affect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments" [85.17].155

Publius adds that "these judicious reflections contain a lesson of moderation to all sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience" [85.18]. The expression "lesson of moderation"–also borrowed from David Hume–is an appeal to one of the paramount virtues long thought necessary in a well constituted republic. Human excellence, patriotism, and republican virtue, Publius is saying, simply demands that thoughtful citizens turn to the new plan for the safety and prosperity of that great empire that is and will become the United States of America.

     An expression of fear for his nation is how Publius ends this essay. It is a fear born of a knowledge that there are powerful individuals who "are enemies to a general national government in every possible shape" [85.19]. "I look forward," Publius admits, "with trembling anxiety" [85.18] to the end of the ratification debate. Why? "A nation, without a national government, is, in my view, an awful spectacle" [85.18].

     But Publius' fear was not realized; the Constitution was ratified and soon implemented and hence we have a national government. And the book that was its most able defense is still its best explanation. We might see our own situation as demanding a measure of intellectual excellence on our own part in understanding and defending that lasting memorial to the power of refection and choice–the republic the Framers left to us as a legacy. But the debate over the Constitution did not stop with its ratification. It goes on even now whenever issues of fundamental importance are raised, or when the regime principles are challenged by other assumptions about man and republican government.

BIBLIOGRAPHY

COMMENTARIES ON The Federalist

ADAIR, Douglass. Fame and the Founding Fathers. Ed. by Trevor Colbourn. New York: W. W. Norton, 1974.

See especially the essays entitled "Fame and the Founding Fathers," 3-26; "The Authorship of the Disputed Federalist Papers," 27-74; "The Tenth Federalist Revisited," 75-92; "'That Politics May be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," 93-106; "'Experience Must Be Our Only Guide': History, Democratic Theory, and the United States Constitution," 107-123; "James Madison," 124-140; and "The Federalist Papers," 251-258; these are also available in The Story of America's Greatest Political Classic: The Federalist Papers. Essays by Douglass Adair. Ed. by Michael L. Chadwick.

CAREY, George W. The Federalist: Design for a Constitutional Republic. Urbana, IL: University of Illinois Press, 1989.

DIETZE, Gottfried. The Federalist: A Classic on Federalism and Free Government. Baltimore, MD: Johns Hopkins University Press, 1960.

     The first commentary on The Federalist.

EPSTEIN, David F. The Political Theory of The Federalist. Chicago: University of Chicago Press, 1984.

A careful, non-polemical treatment of the major themes found in The Federalist.

FEIN, Bruce E. The Federalist Today. Introduction by Robert W. Millar. Washington, D.C.: National Legal Center for the Public Interest, 1987.

FURTWANGLER, Albert. The Authority of Publius: A Reading of the Federalist Papers. Ithaca, NY: Cornell University Press, 1984.

Furtwangler urges caution about accepting The Federalist as an indication of the thought of the Founders.

MILLICAN, Edward. One United People: The Federalist Papers and the National Idea. Lexington: University Press of Kentucky, 1990.

QUINN, Frederick (ed.). The Federalist Papers Reader. Preface by Warren E. Burger, Foreword by A. E. Dick Howard. Selections, with commentary, by ed. Washington, DC: Seven Locks Press, 1993.

WHITE, Morton. Philosophy, The Federalist, and the Constitution. New York: Oxford University Press, 1987.

WILLS, Garry. Explaining America: The Federalist. Garden City, NY: Doubleday, 1981.

     Wills offers an audacious reading of The Federalist, but unfortunately he tends to go beyond the textual evidence and hence he ends up misreading of important passages.

OTHER BOOKS ON The Federalist

ENGEMAN, Thomas S., Edward J. Erler and Thomas B. Hofeller, eds. The Federalist Concordance. Middletown, CO: Wesleyan University Press, 1980.

MOSTELLER, Frederick, and David L. Wallace. Inference and Disputed Authorship: The Federalist. Reading, MA: Addison-Wesley, 1964.

ESSAYS ON The Federalist

ADAIR, Douglass. "The Tenth Federalist Revisited," William and Mary Quarterly 3rd Ser., 8/1 (January 1951): 48-67.

–––––. "'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly 20/4 (August 1957): 343-360.

–––––. "The Authorship of the Disputed Federalist Papers," William and Mary Quarterly 3rd Ser., 1/2 (April 1944): 97-122; 1/3 (July 1944): 234-264.

–––––. "James Madison," in The Lives of Eighteen from Princeton, ed. by Willard Thorp (Princeton, NJ: Princeton University Press, 1946), 137-157.

–––––. "'Experience Must Be Our Only Guide': History, Democratic Theory, and the United States Constitution," in The Reinterpretation of American History: Essays in Honor of John E. Pomfret (San Marino, CA: Huntington Library, 1960), 129-148.

ADKISON, M. Danny, and Lisa McNair Palmer, "American Government Textbooks and The Federalist Papers," The Political Science Teacher 1/1 (Winter 1988), 1, 15-17.

–––––. "The Federalist and Original Intent," Political Science Reviewer 17 (Fall 1987): 219-240.

ALLEN, Anita L. "The Federalist's Plain Meaning," Southern California Law Review 61/6 (September 1988): 1701-1715.

ALLEN, William B. "Federal Representation: The Design of the Thirty-Fifth Federalist Paper, Publius 6/2 (1976): 61-71.

–––––. "Justice and the General Good: Federalist 51," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 131-149.

–––––. "The Constitutionalism of The Federalist Papers," Political Science Reviewer 19 (Spring 1990): 145-176.

ARNHART, Larry. "The Deliberate Rhetoric of The Federalist," Political Science Reviewer 19 (Spring 1990): 49-86.

BANNING, Lance. "'To Secure These Rights': Patrick Henry, James Madison, and the Revolutionary Legitimacy of the Constitution," in Constitutionalism in America, Vol. I, To Secure the Blessings of Liberty: First Principles of the Constitution. Ed. by Sarah Baumgartner Thurow. Lanham, MD: University of America Press, 1988. 280-304.

BERNSTEIN, Richard B. "The Federalist on Energetic Government," in Roots of the Republic: American Founding Documents Interpreted, ed. by Stephen L. Schechter, with Richard B. Bernstein and Donald Lutz contributing eds. Madison, WI: Madison House, 1990. 335-354.

BOURKE, Paul F. "The Pluralist Reading of James Madison's Tenth Federalist," Perspectives in American History 9 (1975): 271-295.

     Bourke traces the history of a particularly influential misreading of the Tenth Federalist.

BROYLES, David. "Federalism and Political Life," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: Free Press, 1987. 61-82.

CAREY, George W. "Majority Tyranny and the Extended Republic Theory of James Madison," Modern Age 20/1 (Winter 1976): 40-53.

–––––. "Separation of Powers and the Madisonian Model: A Reply to the Critics," American Political Science Review 72/1 (March 1978): 151-164.

–––––. "Publius–A Split Personality?" Review of Politics 46/1 (January 1984): 5-22.

–––––. "Republicanism in The Federalist," Political Science Reviewer 19 (Spring 1990): 107-143.

COHLER, Anne M. "Moderate and Free Government: The Division of Powers," in Constitutionalism in America, Vol. II, E Pluribus Unum: Constitutional Principles and Institutions of Government. Ed. by Sarah Baumgartner Thurow. Lanham, MD: University of America Press, 1988. 2-22.

CONNIFF, James. "The Enlightenment and American Political Thought: A Study of the Origins of Madison's Federalist Number 10," Political Theory 8/3 (August 1980): 381-402.

CRAIG, Mickey. "Recovering Publius," Political Science Reviewer 19 (Spring 1990): 1-9.

DRAPER, Theodore. "Hume and Madison: The Secrets of Federalist Paper No. 10," Encounter 58/2 (February 1982): 34-47.

ERLER, Edward J. "The Problem of the Public Good in The Federalist," Polity 13/4 (Summer 1981): 649-667.

ENGEMAN, Thomas S. "The Federalist," in The American Experiment: Essays on the Theory and Practice of Liberty. Ed. by Peter Augustine Lawler and Robert Martin Schaefer. Lanham, MD: Rowman & Littlefield, 1994. 77-91.

GARRITY, Patrick J. "Foreign Policy and The Federalist," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: Free Press, 1987. 83-99.

GERBER, Scott D. "The Federalist on Truth & the Constitution," Polity 23/4 (Summer 1991): 528-547.

GIBBONS, Michael T. "The Public Sphere, Commercial Society, and The Federalist Papers," in The Federalists, the Antifederalists, and the American Political Tradition. Ed. by Wilson Carey McWilliams and Michael T. Gibbons. New York: Greenwood Press, 1992. 107-126.

GIBSON, Alan. "Impartial Representation and the Extended Republic: Towards a Comprehensive and Balanced Reading of the Tenth Federalist," History of Political Thought 12/2 (Summer 1991): 263-304.

GRASSO, Kenneth L. "Pluralism, the Public Good and the Problem of Self-Government in The Federalist," Interpretation: A Journal of Political Philosophy 15/2,3 (May & September 1987): 323-345.

–––––. "The Federalist versus the Procedural Republic," in The American Experiment: Essays on the Theory and Practice of Liberty. Ed. by Peter Augustine Lawler and Robert Martin Schaefer. Lanham, MD: Rowman & Littlefield, 1994. 93-106.

GREENE, Francis R. "Madison's View of Federalism in The Federalist," Publius 24/1 (Winter 1994): 47-61.

HOWE, Daniel Walker. "The Political Psychology of The Federalist," William and Mary Quarterly 3rd Ser., 44/3 (July 1987): 485-509.

–––––. "The Language of Faculty Psychology in The Federalist Papers," in Conceptual Change and the Constitution, ed. by Terence Ball and J. G. A. Pocock. Lawrence, KA: University Press of Kansas, 1988. 107-136.

KENDALL, Willmoore (with George W. Carry). Introduction entitled "How to Read The Federalist," in Nellie D. Kendall, ed., Willmoore Kendall Contra Mundum. New Rochelle, NY: Arlington House, 1971. 403-417.

KESLER, Charles R. "Federalist 10 and American Republicanism," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: Free Press, 1987. 1-39.

–––––. "Natural Law and the Constitution: The Federalist's View," in Constitutionalism in America, Vol. III, Constitutionalism in Perspective: The United States Constitution in Twentieth Century Politics. Ed. by Sarah Baumgartner Thurow. Lanham, MD: University of America Press, 1988. 155-181.

KETCHAM, Ralph L. "Publius: Sustaining the Republican Principle," William and Mary Quarterly 3rd Ser., 44/3 (July 1987): 576-582.

KOBYLKA, Joseph F., and Bradley Kent Carter. "Madison, The Federalist, & Constitutional Order: Human Nature & Institutional Structure," Polity 20/2 (Winter 1987): 190-208.

KRISTOL, William. "The Problem of the Separation of Powers: Federalist 47-51," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 100-130.

MANSFIELD, Harvey C. "Republicanizing the Executive," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 168-184.

MARSHALL, Geoffrey. "David Hume and Political Scepticism," Philosophical Quarterly 4/16 (July 1954): 247-257.

MASON, Alpheus T. "The Federalist–A Split Personality," American Historical Review 57/3 (April 1952): 625-643.

MEYERS, Marvin. "Founding and Revolution: A Commentary on Publius-Madison," in The Hofstadter Aegis: A Memorial. Ed. by Stanley Elkins and Eric McKitrick. New York: Knopf, 1974. 3-35.

–––––. "Revolution and Founding: On Publius-Madison and the American Genesis," Quarterly Journal of the Library of Congress 37/2 (Spring 1980): 192-200.

MILLER, Eugene F. "What Publius Says about Interest," Political Science Reviewer 19 (Spring 1990): 11-48.

MORGAN, Edmund. "Safety in Numbers: Madison, Hume, and the Tenth Federalist," Huntington Library Quarterly 49/2 (Spring 1986): 95-112.

MORGAN, Robert J. "Madison's Theory of Representation in the Tenth Federalist," Journal of Politics 36/4 (November 1974): 852-885.

NORDQUEST, David A. "The Federalist on Truth & the Constitution," Polity 23/4 (Summer 1991): 527-547.

PANGLE, Thomas L. "The Federalist Papers' Vision of Civic Health and the Tradition Out of Which That Vision Emerges, Western Political Quarterly 39/4 (December 1986): 577-602.

PETERSON, Paul. "The Meaning of Republicanism in The Federalist," Publius 9/2 (Spring 1979): 43-75.

–––––. "The Rhetorical Design and Theoretical Teaching of Federalist No. 10," Political Science Reviewer 17 (Fall 1987): 193-218.

RABKIN, Jeremy. "Bureaucratic Idealism and Executive Power: A Perspective on The Federalist's View of Public Administration," in Saving the Revolution: The Federalist and Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 185-202.

RAHE, Paul A. "The American Revolution," in The American Experiment: Essays on the Theory and Practice of Liberty. Ed. by Peter Augustine Lawler and Robert Martin Schaefer. Lanham, MD: Rowman & Littlefield, 1994. 27-55

REIMER, Neal. "The Republicanism of James Madison," Political Science Quarterly 69/1 (March 1954): 45-64.

–––––. "James Madison's Theory of the Self-Destructive Features of Republican Government," Ethics 65/1 (October 1954): 34-43.

RILEY, Patrick. "Martin Diamond's View of The Federalist," Publius 8/3 (Summer 1978): 71-101.

ROSSUM, Ralph A. ""The Federalist's Understanding of the Constitution as a Bill of Rights," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 219-233.

SCANLAN, James P. "'The Federalist' and Human Nature," Review of Politics 21/4 (October 1959): 657-677.

SCHAUB, Sanderson. "Justice and Honor, the Surest Foundation of Liberty: The Natural Law Doctrine in The Federalist No. 10," in Constitutionalism in America, Vol. I, To Secure the Blessings of Liberty: First Principles of the Constitution. Ed. by Sarah Baumgartner Thurow. Lanham, MD: University of America Press, 1988. 2-30.

SCHECHTER, Stephen L. "The Federalist on Federalism," in Roots of the Republic: American Founding Documents Interpreted, Stephen L. Schechter, ed. Madison, WI: Madison House, 1990. 291-304.

SEDGWICK, Jeffrey Leigh. "James Madison & the Problem of Executive Character," Polity 21/1 (Fall 1988): 5-23.

SMITH, Maynard. "Reason, Passion and Political Freedom in The Federalist," Journal of Politics 22/3 (August 1960): 525-544.

STONER, James. "Constitutionalism and Judging in The Federalist," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 203-218.

TARCOV, Nathan. "War and Peace in The Federalist," Political Science Reviewer 19 (Spring 1990): 87-106.

TUSHNET, Mark. "Constitutional Interpretation and Judicial Selection: A View from The Federalist Papers," Southern California Law Review 61/6 (September 1988): 1669-1699.

WEBKING, Robert. " "The Federalist: Governmental Power and Individual Rights," in The Constitutional Polity: Essays on the Founding Principles of American Politics. Ed. by Sidney A. Pearson, Jr. Lanham, MD: University Press of America, 1983. 1-29.

WEST, Thomas G. "The Rule of Law in The Federalist," in Saving the Revolution: The Federalist Papers and The American Founding, ed. by Charles R. Kesler. New York: The Free Press, 1987. 150-167.

WILSON, James G. "The Most Sacred Text: The Supreme Court's Use of The Federalist Papers," B. Y. U. Law Review 1985/1: 65-135.

WRIGHT, Benjamin F. "The Federalist on the Nature of Political Man," Ethics 59/2 (January 1949): 1-31.

YARBROUGH, Jean. "Thoughts on The Federalist's View of Representation," Polity 12/1 (Fall 1979): 65-82.

–––––. "Rethinking 'The Federalist's View of Federalism'," Publius 15/1 (Winter 1985): 31-53.

ZUCKERT, Michael P. "The Virtuous Polity, The Accountable Polity: Liberty and Responsibility in The Federalist," Publius 22/1 (Winter 1992): 123-142.

OTHER RELATED BOOKS

ALLEN, William B. Let the Advice Be Good: A Defense of Madison's Democratic Nationalism. Lanham, MD: University Press of America, 1993.

ANASTAPLO, George. The Constitution of 1787: A Commentary. Baltimore, MD: Johns Hopkins, 1989.

APPLEBY, Joyce. Capitalism and a New Social Order: The Republican Revision of the 1790s. New York: New York University Press, 1984.

–––––. Liberalism and Republicanism in the Historical Imagination. Cambridge, MA: Harvard University Press, 1992.

BAILYN, Bernard. The Ideological Origins of the American Revolution. Cambridge, MA: Belknap Press of Harvard University Press, 1967. Enl. ed. 1992.

BERNS, Walter. Taking the Constitution Seriously. New York: Simon and Schuster, 1987.

BRANT, Irving. James Madison: Father of the Constitution, 1787-1800. Indianapolis, IN: Bobbs-Merrill, 1950.

BROWN, Roger H. Redeeming the Republic: Federalists, Taxation, and the Origins of the Constitution. Baltimore, MD: Johns Hopkins University Press, 1993.

COLEMAN, Frank M. Hobbes and America: Exploring the Constitutional Foundations. Toronto: University of Toronto Press, 1977.

COLHER, Ann. Montesquieu's Comparative Politics and the Spirit of American Constitutionalism. Lawrence, KA: University Press of Kansas, 1988.

COOKE, Jacob E. Alexander Hamilton. New York: Scribner, 1982.

DIAMOND, Martin. The Founding of the American Democratic Republic. Itasca, IL: F. E. Peacock, 1981.

–––––. As Far as Republican Principles Will Admit: Essays. Ed. by William A. Schambra. Washington: American Enterprize Institute Press, 1992.

–––––. (with Winston Mills Fisk, and Herbert Garfinkel). The Democratic Republic: An Introduction to American National Government. 2nd. ed. Chicago: Rand McNally, 1970.

Four chapters were also published as The Founding of the American Democratic Republic in 1981.

DIETZE, Gottfried. American Democracy: Aspects of Practical Liberalism. Baltimore, MD: Johns Hopkins University Press, 1993.

DIGGINS, John P. The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundation of Liberalism. New York: Basic Books, 1984.

EIDELBERG, Paul. The Philosophy of the American Constitution: A Reinterpretation of the Intentions of the Founding Fathers. New York: The Free Press, 1968.

–––––. A Discourse on Statesmanship. Urbana, IL: University of Illinois Press, 1974.

FLAUMENHALFT, Harvey. The Effective Republic: Administration and Constitution in the Thought of Alexander Hamilton. Durham, NC: Duke University Press, 1992.

FLEXNER, James Thomas. The Young Hamilton: A Biography. Boston: Little, Brown, 1978.

GWYN, William B. The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution. Baton Rouge, LA: Tulane University Press, 1965.

HOFFERT, Robert W. A Politics of Tensions: The Articles of Confederation and American Political Ideas. Boulder: University of Colorado Press, 1992.

HYNEMAN, Charles S. The American Founding Experience: Political Community and Republican Government. Ed. by Charles E. Gilbert. Urbana: University of Illinois Press, 1994.

KAMMEN, Michael. A Machine that Would Go of Itself: The Constitution and American Culture. New York: Knopf, 1986.

KETCHAM, Ralph L. James Madison: A Biography. Charlottesville: University of Virginia Press, 1990.

–––––. Framed for Posterity: The Enduring Philosophy of the Constitution. Lawrence, KA: University Press of Kansas, 1993.

LERNER, Ralph. The Thinking Revolutionary. Ithaca, NY: Cornell University Press, 1987.

LIENESCH, Michael. New Order of the Ages: Time, the Constitution, and the Making of Modern American Political Thought. Princeton, NJ: Princeton University Press, 1980.

LUTZ, Donald S. The Origins of American Constitutionalism. Baton Rouge, LO: Louisiana State University Press, 1988.

–––––. A Preface to American Political Theory. Lawrence, KA: University Press of Kansas, 1992.

MACE, George. Locke, Hobbes, and the Federalist Papers. Carbondale, IL: Southern Illinois University Press, 1979.

MAIN, Jackson Turner. The Antifederalists: Critics of the Constitution, 1781-1788. Chicago: Quadrangle Books, 1961. New York: W. W. Norton, 1974.

MANSFIELD, Harvey C., Jr. America's Constitutional Soul. Baltimore:Johns Hopkins University Press, 1991.

MATSON, Cathy D., and Peter S. Onuf. A Union of Interests: Political and Economic Thought in Revolutionary America. Lawrence, KA: University Press of Kansas, 1990.

McCOY, Drew R. The Last of the Fathers: James Madison and the Republican Legacy. New York: Cambridge University Press, 1989.

–––––. The Elusive Republic: Political Economy in Jeffersonian America. Williamsburg, VA: Institute of Early American History and Culture, 1980.

McDONALD, Forrest. We the People: The Economic Origins of the Constitution. 1958.

–––––. E Pluribus Unum: The Formation of the American Republic, 1776-1790. Indianapolis, IN: Liberty Press, 1965. New ed., 1979.

–––––. Alexander Hamilton: A Biography. New York: W. W. Norton, 1979.

–––––. Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence, KA: University Press of Kansas, 1985.

McDOWELL, Gary L. The Constitution and Contemporary Constitutional Theory. Foreword by Robert Bork. Cumberland, VA: Center for Judicial Studies, 1985.

McWILLIAMS, Wilson Carey. The Idea of Fraternity in America. Berkeley: University of California Press, 1973.

MILLER, Joshua. The Rise and Fall of Democracy in Early America, 1630-1789. University Park, PA: Pennsylvania State University Press, 1991.

MILLER, William Lee. The Business of May Next: James Madison and the Founding. Charlottesville: University of Virginia Press, 1992.

MORRIS, Richard B. Witnesses at the Creation: Hamilton, Madison, Jay, and the Constitution. New York: Holt, Rinehart, and Winston, 1985.

PANGLE, Lorraine Smith, and Thomas L. Pangle. The Learning of Liberty: The Educational Ideas of the American Founders. Lawrence, KA: University Press of Kansas, 1993.

PANGLE, Thomas L. Montesquieu's Philosophy of Liberalism: A Commentary on The Spirit of the Laws. Chicago: University of Chicago Press, 1973.

–––––. The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke. Chicago: University of Chicago Press, 1988.

–––––. The Ennobling of Democracy: The Challenge of the Postmodern Age. Baltimore, MD: Johns Hopkins University Press, 1992.

RAHE, Paul A. Republics Ancient and Modern, vol. III, Inventions of Prudence: Constituting the American Regime. Chapel Hill: University of North Carolina Press, 1994.

RAKOVE, Jack N. James Madison and the Creation of the American Republic. Ed. by Oscar Handlin. Glenview, IL: Scott, Foresman/Little, Brown Higher Education, 1990.

REIMER, Neal. James Madison: Creating the American Constitution. Washington, DC: Congressional Quarterly, 1986.

REINHOLD, Meyer. Classica Americana: The Greek and Roman Heritage in the United States. Detroit, MI: Wayne State University Press, 1984.

RICHARD, Carl J. The Founders and the Classics: Greece, Rome, and the American Enlightenment. Cambridge, MA: Harvard University Press, 1994.

ROSSITER, Clinton. 1787: The Grand Convention. New York: Macmillan, 1966. Reissued, 1987.

RUTLAND, Robert A. The Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787-1788. Norman, OK: University of Oklahoma Press, 1966. Rev. ed., 1983.

–––––. James Madison: The Founding Father. New York: Macmillan, 1987.

SANDOZ, Ellis. A Government of Laws: Political Theory, Religion and the American Founding. Baton Rouge, LA: Louisiana State University Press, 1990.

SHALHOPE, Robert E. The Roots of Democracy: American Thought and Culture, 1760-1800. Boston: Twayne, 1990.

SINOPOLI, Richard C. The Foundations of American Citizenship: Liberalism, the Constitution, and Civic Virtue. New York: Oxford University Press, 1992.

SMITH, Craig R. To Form a More Perfect Union: The Ratification of the Constitution and the Bill of Rights, 1787-1791. Lanham, MD: University Press of America, 1993.

SPURLIN, Merrill. Montesquieu in America, 1760-1801. New York: Octagon Press, 1969, reissue of the 1940 original.

STONER, James R., Jr. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence, KA: University Press of Kansas, 1992.

STORING, Herbert J. (with the editorial assistance of Murray Dry). What the Anti-Federalists Were FOR: The Political Thought of the Opponents of the Constitution. Chicago: University of Chicago Press, 1981. [This is the introductory volume to The Complete Anti-Federalist, ed. by Storing.]

STOURZH, Gerald. Alexander Hamilton and the Idea of Republican Government. Stanford, CA: Stanford University Press, 1970.

THACH, Charles C., Jr. The Creation of the Presidency, 1775-1789: A Study in Constitutional History. Baltimore, MD: Johns Hopkins University Press, 1969.

VILE, John R. A Companion to the United States Constitution and Its Amendments. Westport, CO: Praeger, 1993.

VILE, M. J. C. Constitutionalism and the Separation of Powers. New York: Oxford University Press, 1967.

WOOD, Gordon S. The Creation of the American Republic, 1776-1787. Chapel Hill, NC: University of North Carolina Press, 1969.

WORMUTH, Francis D. The Origin of Constitutionalism. New York: Harper, 1949.

ZUCKERT, Michael P. Natural Rights and the New Republicanism. Princeton, NJ: Princeton University Press, 1994.

OTHER ESSAYS RELATED TO UNDERSTANDING The Federalist OR THE DEBATE OVER THE FOUNDING.

ABRAHAM, Henry J. "The Judiciary and American Constitutionalism," in Our Peculiar Security: The Written Constitution and Limited Government. Ed. by Eugene W. Hickok Jr., Gary L. McDowell, and Philip J. Costopoulos. Lanham, MD: Rowman and Littlefield, 1993. 71-95.

ACKERMAN, Bruce A. "The Storrs Lectures: Discovering the Constitution," especially "Lecture One: The Economy of Virtue," Yale Law Journal 93/6 (May 1984): 1013-1072, at 1013-1031.

ADAMS, Willi Paul. "Republicanism in Political Rhetoric before 1776," Political Science Quarterly 85/3 (September 1970): 397-421.

AGRESTO, John T. "Liberty, Virtue, and Republicanism: 1776-1787," Review of Politics 39/4 (1977): 473-504.

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SHALHOPE, Robert E. "Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography," William and Mary Quarterly 3rd Ser., 29/1 (January 1972): 49-80.

–––––. "Republicanism and Early American Historiography," William and Mary Quarterly 3rd Ser., 39/2 (April 1982): 334-356.

SHARP, Malcolm P. "The Classical American Doctrine of the "Separation of Powers'," University of Chicago Law Review 2/3 (April 1935): 385-436.

SHCHUTZ, Peter L. "War Power and the Constitution: Chaining the Dog of War," in The American Experiment: Essays on the Theory and Practice of Liberty. Ed. by Peter Augustine Lawler and Robert Martin Schaefer. Lanham, MD: Rowman & Littlefield, 1994. 209-220.

SHEEHAN, Colleen A. "Madison's Party Press Essays," Interpretation: A Journal of Political Philosophy 17/3 (Spring 1990): 355-377.

–––––. "The Politics of Public Opinion: James Madison's 'Notes on Government'," William and Mary Quarterly 3rd Ser., 49/4 (October 1992): 609-627.

SINOPOLI, Richard C. "Liberalism, Republicanism & the Constitution," Polity 19/3 (Spring 1987): 331-352.

–––––. "Liberalism and Political Allegiance in Anti-Federalist Political Thought," Publius 22/2 (Spring 1992): 123-139.

SLOAN, Herbert, and Peter Onuf. "Politics, Culture, and Revolution in Virginia: A Review of Recent Work," Virginia Magazine of History and Biography 91/3 (July 1983): 259-284.

SORENSON, Leonard R. "Madison on the Meaning of 'General Welfare,' and 'Purpose' of Enumerated Powers, and the 'Definition' of Constitutional Government," Publius 22/2 (Spring 1992): 109-121.

STORING, Herbert J. "The Constitution and the Bill of Rights," in Essays on the Constitution of the United States. Ed. by M. Judd Harmon. Port Washington, NY: Kennikat Press, 1978. 29-45.

–––––. "The 'Other' Federalist Papers," Political Science Reviewer 6 (Fall 1976): 215-247.

STOURZH, Gerald. "Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century," in Conceptual Change and the Constitution, ed. by Terence Ball and J. G. A. Pocock. Lawrence, KA: University Press of Kansas, 1988. 35-54.

TACHAU, Mary K. Bonsteel. "Equality: The Framer's View," in Constitutionalism in America, Vol. I, To Secure the Blessings of Liberty: First Principles of the Constitution. Ed. by Sarah Baumgartner Thurow. Lanham, MD: University of America Press, 1988. 72-84.

TARCOV, Nathan. "The Social Theory of the Founders," in Confronting the Constitution, ed. by Allen Bloom. Washington, DC: AEI Press, 1990. 166-190.

WEINBERGER, Jerry. "Liberalism, Constitutionalism, and the Rediscovery of the State of Nature," in The Revival of Constitutionalism, ed. by James W. Muller. Lincoln, NE: University of Nebraska Press, 1988. 11-42.

WOLFE, Christopher. "On Understanding the Constitutional Convention of 1787," Journal of Politics 39/1 (February 1977): 97-118.

     A criticism of some of Martin Diamond's understanding of the Constitution.

WOOD, Gordon S. "Ideology and the Origins of Liberal America," William and Mary Quarterly 3rd Ser., 44/2 (April 1978): 628-640.

–––––. "Democracy and the Constitution," in How Democratic Is the Constitution? Ed. by Robert A. Goldwin and William A. Schambra. Washington, DC: AEI Press, 1980. 1-17.

–––––. "The Fundamentalists and the Constitution," New York Review of Books 35 (February 18. 1988): 33-44.

–––––. "The Political Ideology of the Founders," in Toward a More Perfect Union, ed. by Neil L. York. Provo, UT: Brigham Young University, 1988. 7-28.

–––––. "Interest and Disinterestedness in the Making of the Constitution," in Beyond Confederation: Origins of the Constitution and American National Identity. Ed. by Richard Beeman, Stephan Botein, and Edward C. Carter II. Chapel Hill, NC: University of North Carolina Press, 1987. 69-109.

WRIGHT, Benjamin F. "The Origins of the Separation of Powers in America," Economica 13, no. 40 (May 1933): 169-185.

YARBROUGH, Jean. "Representation and Republicanism: Two Views," Publius 9/2 (Spring 1979): 61-95.

–––––. "Republicanism Reconsidered: Some Thoughts on the Foundation and Preservation of the American Republic," Review of Politics 41/1 (January 1979): 61-95.

–––––. "Madison and Modern Federalism," in How Federal is the Constitution? ed. by Robert A. Goldwin and William A Schambra. Washington, DC: American Enterprise Institute, 1987. 84-108.

–––––. "The Constitution and Character: The Missing Critical Principle?" in To Form a More Perfect Union: The Critical Ideas of the Constitution, ed. by Herman Belz, Ronald Hoffman, and Peter J. Albert. Charlottesville: University of Virginia Press, for the United States Capitol Historical Society, 1992. 217-249.

van de BILT, Edward. "Publius Dividuus: James Madison and the Divisions of Government," in The US Constitution: After 200 Years. Ed. by Rob Kroes and Edward van de Bilt. Amsterdam, Netherlands: Free University Press, 1988. 20-30.

ZENTNER, Scot J. "Liberalism & Executive Power: Woodrow Wilson & the American Founders," Polity 26/4 (Summer 1994): 569-599.

ZVESPER, John. "The Madisonian Systems," Western Political Quarterly 37/2 (June 1984): 236-256.

ZUCKERT, Michael P. "Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention," Review of Politics 48/2 (Spring 1986): 166-210.

SOME COLLECTIONS OF ESSAYS:

The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution. Ed. by Patrick T. Conley and John P. Kaminski. Madison, WI: Madison House, 1988.

Fifteen essays that include, in addition to an introduction by Paul J. Scudiere and a bibliographic essay by Patrick T. Conley, essays on the thirteen states by Harold Hancock, Paul Doutrich, Mary R. Murrin, Albert B. Saye, Christopher Collier, John J. Fox, Gregory Stiverson, Jerome J. Nadelhaft, Jere Daniell, Alan V. Briceland, John P. Kaminski, Alan D. Watson, and Patrick T. Conley.

"The Creation of the American Republic, 1776-1787: A Symposium of Views and Reviews," William and Mary Quarterly 3rd Ser., 46/2 (April 1989): 549-640.

Essays on Gordon S. Wood's famous book by Ruth H. Bloch, Edward Countryman, John Patrick Diggins, John Howe, Ralph L. Ketcham, Pauline Maier, Jackson Turner Main, John M. Murrin, Gary B. Nash, Peter S. Onuf, Jack N. Rakove, Garry Wills, and Gordon S. Wood.

Essays on the Making of the Constitution. Ed. by Leonard Levy. 2nd ed. New York: Oxford University Press, 1987.

Ratifying the Constitution. Ed. by Michael Allen Gillespie and Michael Lienesch. "Introduction" by editors, and "Afterword" by Wilson Carey McWilliams. Lawrence, KA: University of Kansas Press, 1989.

Thirteen essays on each of the states by Gaspare J. Saladino, George J. Graham, Jr., Sara M. Shumer, Edward J. Cashin, Donald S. Lutz, Michael Allen Gillespie, Peter S. Onuf, Robert M. Weir, Jean Yarbrough, Lance Banning, Cecil L. Eubanks, Michael Lienesch, and John P. Kaminski.

PRIMARY SOURCE MATERIALS; COLLECTIONS OF PERTINENT DOCUMENTS; RESEARCH TOOLS

ALLEN, William B., and Gordon Lloyd, eds. The Essential Antifederalist. Lanham, MD: University Press of America, 1985.

BAILYN, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. In two Parts. New York: Library of America, 1993.

COOKE, Jacob E., ed. The Federalist. With an introduction and notes by ed. Middletown, CO: Wesleyan University Press, 1961.

DRY, Murray, ed. The Anti-Federalist. Chicago: University of Chicago Press, 1985.

ELLIOT, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. 5 vols. 2nd ed. Philadelphia: J. B. Lippincott, 1901.

FARRAND, Max, ed. The Framing of the Constitution of the United States. 3 vols. New Haven: Yale University Press, 1913.

FARRAND, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. in 4 vols. New Haven: Yale University Press, 1966. [With the Supplement, this collection may be the most important source of information on the origins of the Constitution.]

FORD, Paul Leicester, ed. Essays on the Constitution of the United States, Published during Its Discussion by the People, 1787-1788. Brooklyn, NY: Historical Printing Club, 1892.

FORD, Paul Leicester, ed. Pamphlets on the Constitution of the United States Published During Its Discussion by the People. With notes and a bibliography by ed. Brooklyn, NY: n.p., 1888; New York: Da Capo Press, 1968.

HUTSON, James H., ed. Supplement to Max Farrand's The Records of the Federal Convention of 1787. New Haven: Yale University Press, 1987. [A revision and expansion of Farrand's original fourth volume of Farrand's The Records of the Federal Convention of 1787.]

HYNEMAN, Charles S. and Donald S. Lutz, eds. American Political Writing During the Founding Era, 1760-1805. 2 vols. Indianapolis, IN: Liberty Press, 1983.

JENSEN, Merrill, (and now) John P. Kaminski, Gaspare J. Saladino, and Richard Leffler, eds. The Documentary History of the Ratification of the Constitution and the Bill of Rights. 17 vols. projected. Madison, WI: State Historical Society of Wisconsin, 1976-.

KAMINSKI, John P., and Richard Leffler, eds. Federalists and Antifederalists: The Debate over the Ratification of the Constitution. Madison, WI: Madison House for the Center for the Study of the American Constitution, 1989.

KAMMEN, Michael, ed. The Origins of the American Constitution: A Documentary History. With an introduction by ed. New York: Penguin Books, 1986.

KENYON, Cecelia, ed. The Antifederalists. With an introduction by ed. Indianapolis, IN: Bobbs-Merrill, 1966. 2nd ed., with an introduction by Gordon S. Wood. Boston: Northeastern University Press, 1983.

KETCHAM, Ralph, ed. The Anti-Federalist Papers; and, The Constitutional Convention Debates. New York: New American Library/Mentor Books, 1986.

KOCH, Adrienne, ed. Notes of Debates in the Federal Convention of 1787 Reported by James Madison. With an introduction by ed. Athens: Ohio University Press, 1966; New York: W. W. Norton, 1969; Bicentennial ed.; New York: Norton, 1987.

KURLAND, Philip B., and Ralph Lerner, eds. The Founders' Constitution, vol. 1, Main Themes. Chicago: University of Chicago Press, 1987.

LUTZ, Donald S., ed. Documents of Political Foundation Written by Colonial Americans: From Covenant to Constitution. New York: Institute for the Study of Human Issues, 1986.

McMASTER, John Bach, and Frederick D. Stone, eds. Pennsylvania and the Federal Constitution, 1787-1788. Lancaster, PA: Published for the scribers by the Historical Socity of Pennsylvania by Inquirer Printing, 1988.

MEYERS, Marvin, ed. The Mind of the Founder: Sources of the Political Thought of James Madison. Rev. ed. With an introduction and commentary by ed. Hanover, NH: Published for Brandeis University Press by University Press of New England, 1981.

POLE, J. R., ed. The American Constitution–For and Against: The Federalist and Anti-Federalist Papers. New York: Hill and Wang, 1987.

RUTLAND, Robert A., et al., eds. The Papers of James Madison. Vol. 1-10. Charlottsville, VR: University Press of Virginia, 1962-76. Vol. 11-. Chicago: University of Chicago Press, 1977-.

William T. Hutchinson was the editor of this series through volume 7, when Rutland became the general editor. Volume 9 (1786-87) and volume 10 (1787-88) are especially useful, since they cover the period from May 1787 to March 1788.

SANDOZ, Ellis, ed. Political Sermons of the American Founding Era, 1730-1805. Indianapolis, IN: Liberty Press, 1991.

SOLBERG, Winston U., ed. The Constitutional Convention and the Formation of the Union. 2nd ed. Urbana, IL: University of Illinois Press, 1990.

STORING, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981. [The first volume, What the Anti-Federalists Were For, is perhaps the best single volume setting forth the views of those who opposed the Constitution.]

SYRETT, Harold C., and Jacob E. Cooke et al., eds. The Papers of Alexander Hamilton. 27 vols. New York: Columbia University Press, 1961-1987. [With a supplementary volume edited by B. Chernow, 1987.]

1 James Madison to Thomas Jefferson, February 8, 1825, in The Founders' Constitution, vol. I, Major Themes, ed. by Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 691; taken from The Writings of James Madison, ed. by Gaillard Hunt (New York: G. P. Putnam's Sons, 1910), 9:218-219. Madison was responding to Jefferson's request for suggestions for books that might be required reading for students at the law school he proposed for the University of Virginia.

2Hume, "On the Independency of Parliament," Essays Moral, Political, and Literary, ed. by Eugene F. Miller (Indianapolis, IN: Liberty/Classics, 1985), 42.

3Hume, Essays Moral, Political, and Literary (London: Grant Richards, 1903); there is now available a fine new edition of these Essays, ed. by Eugene F. Miller (Indianapolis, IN: Liberty/Classics, 1985).

4Douglass Adair, "'That Politics May be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly 20/4 (August 1957): 343-360; also available in Adair's Fame and the Founding Fathers, ed. by Trevor Colbourn (New York: W. W. Norton, 1974), 93-106.

5The book was Robert Dahl's A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956).

6James H. Hutson, "The Creation of the Constitution: Scholarship at a Standstill," Reviews in American History 12/4 (December 1984): 463-377.

7 The title is borrowed from James Madison's Notes on Debates in the Federal Convention of 1787, with an introduction by Adrienne Koch (New York: Norton, 1987), 312.

8Wills, Explaining America: The Federalist (Garden City, NY: Doubleday, 1981).

9Epstein, The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984).

10White, Philosophy, The Federalist, and the Constitution (New York: Oxford University Press, 1987).

11Carey, The Federalist: Design for a Constitutional Republic (Urbana, IL: University of Illinois Press, 1989).

12With one exception, which I will explain later.

13Gordon S. Wood, "The Fundamentalists and the Constitution," New York Review of Books 35 (February 18, 1988): 33-44.

14Leo Strauss, "Introduction," to History of Political Philosophy, ed. by Strauss and Joseph Cropsey, 3rd ed. (Chicago: University of Chicago Press, 1987), 1-6 at 5.

15Those who see a text like The Federalist as a mere manifestation of the circumstances that gave birth to it certainly do not tend to see their own work in that same light. Instead, they tend to privilege their own presumably "objective" understanding of the past, or their more "scientific" or "rational" understanding over that of those they wish to explain. But may we not turn their own doctrine against them? Why should we accept what they are busy telling us as simply true? On their own premises, is not their explanation merely one more product of the intellectual culture and political situation in which they find themselves?

16See the bibliography at the end of this study for an indication of the lively discussion currently taking place over The Federalist.

17See Peter S. Onuf, "Reflections on the Founding: Constitutional Historiography in Bicentennial Perspective," William and Mary Quarterly 3rd Ser., 46/2 (April 1989): 341-375 at 342-343.

18Onuf, "Reflections on the Founding," 343.

19On this issue see Peter Novick, That Noble Dream: The Objectivity Question and the American Historical Profession (New York: Columbia University Press, 1988).

20Wood, "Ideology and the Origins of Liberal America," William and Mary Quarterly 3rd Ser., 44/2 (April 1987): 632-633.

21Wood, "Ideology and the Origins of Liberal America," 633.

22 See the edition published by Global Affairs Press in 1987. The edition edited by Jacob E. Cooke of The Federalist, with "Introduction" and "Notes" (Middletown, CO: Wesleyan University Press, 1961), is generally considered the outstanding scholarly version. This guide can, of course, also be used in conjunction with other studies of The Federalist, such as Epstein's The Political Theory of the Federalist or Carey's The Federalist: Design for a Constitutional Republic, or with some of the better recent general treatments of the American founding such as that provided by Paul Rahe, Republics Ancient and Modern, vol. III, Inventions of Prudence: Constitution the American Regime (Chapel Hill: University of North Carolina Press, 1994). And see my Bibliography for other relevant literature on The Federalist.

23The original title for the collection was The Federalist: A Collection of Essays written in Favour of the New Constitution, As Agreed Upon by the Federal Convention, September 17, 1787. The second volume carried the subtitle The Conformity of the Proposed Constitution to the True Principles of Republican Government.

24On September 19, the Pennsylvania Packet became the first newspaper to publish a copy of the proposed Constitution. Others soon followed. And the debate over the Constitution began precisely because, as one writer has put it, "the Constitution created a national government whose strength and character were out of proportion to the obvious and acknowledged weaknesses of the confederation." Gordon S. Wood, "Democracy and the Constitution," in How Democratic Is the Constitution?, ed. by Robert A Goldwin and William A. Schambra (Washington, DC: AEI Press, 1980), 6.

25 For example, in New York alone, on October 5, 9 and 16, 1787 the New-York Packet carried remarks critical of the proposed Constitution by one known as An American Citizen; then on October 10, 1787 the Independent Journal: or, the General Advertizer published an item under the title Matters of Fact; the New York Journal carried an article by Brutus on October 18 (followed by other articles by Brutus on November 1, 15, and 29); and on October 18, 1787 something appeared by Sidney; and the Daily Advertiser carried an article by Marcus on October 15, 1787.

26 See, for example, the letters by Cassius (James Sullivan), Massachusetts Gazette, on September 18, October 2, with additional letters in November and December 1787 (available in Ford Essays, 1-48). Or see also a letter in the Daily Advertiser in New York on September 24, 1787 praising the proposed Constitution, available in the collection of materials selected by Bernard Bailyn entitled The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, in two parts (New York: Library of America, 1993), 1:12-14. This was followed by a series of four letters by An American Citizen (Tench Coxe) explicating and defending the proposed Constitution in the Independent Gazetteer in Philadelphia that were published on September 26, 28, 29 and October 24, 1787 (the first three are available in The Debate on the Constitution, 1:20-30).

27 The initial Caesar letter was published on October 1, 1787, and, after Cato offered a rejoinder, Caesar followed with a second letter, dated October 17, 1787.

28 See Herbert J. Storing, The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981), 2:102.

29 Jacob E. Cooke, "Alexander Hamilton's Authorship of the 'Caesar' Letters," William and Mary Quarterly 17/1 (January 1960): 78-85.

30 Tench Coxe, James Wilson, John Dickinson, Charles Pinckney, James Iredell, Noah and Pelatiah Webster, and many others eventually wrote in defense of the proposed Constitution. For both a listing of these items and an analysis of their content, see Herbert J. Storing, "The 'Other' Federalist Papers: A Preliminary Sketch," Political Science Reviewer 6 (1976): 215-247. In addition to The Federalist, Storing provides a list of some 89 essays and 16 pamphlets written in defense of the proposed Constitution. Storing's essay and bibliography thus provides convenient access to this almost forgotten and somewhat inaccessible literature. Much but not all of this literature can now be found assembled in chronological order in the two volume collection edited by Bailyn entitled The Debate on the Constitution.

31 In addition to appearing in The Independent Journal: or, The General Advertizer (owned by J. McLean), the Publius letters were also published in part in the New-York Packet; the Daily Advertiser; and the New York Journal and Daily Patriotic Register. When each number of The Federalist is discussed, I have included a reference to the New York newspaper in which the essay was initially published, though usually these essays were published in one or more other newspapers within a few days of their initial publication.

32 The last eight numbers initially appeared in the second volume of the so-called McLean edition of The Federalist, on May 28, 1788, before they were eventually published in newspapers in New York City.

33 In August, 1788 James Madison wrote Thomas Jefferson, concerning The Federalist, that "it was undertaken last fall by Jay, Hamilton and myself. The proposal came from the two former. The execution was thrown by the sickness of Jay mostly on the two others. Though carried in concert the writers are not mutually answerable for all the ideas of each other there being seldom time for even a perusal of the pieces by any but the writers before they were wanted at the press and sometimes hardly by the writer himself." See Madison's letter, dated August 11, 1788, to Jefferson, in The Papers of James Madison, ed. by Robert A. Rutland, and others (Chicago: University of Chicago Press, 1977), 11: 227. Compare with the remarks of Rives, History of...James Madison (Boston: Little, Brown, 1865), 2:484.

34 The Federalist can be read as (1) the nearest thing to an official commentary on the Constitution, but it can and should also be read as (2) campaign propaganda, and (3) as a serious work in political theory, though obviously not directly as an essay in philosophy, though the attention given to it by Morton White in his Philosophy, The Federalist, and the Constitution (New York: Oxford University Press, 1987) seems to show that, with some understandable qualifications, philosophical inquiry may be made to rest on a careful examination of its text. Attention to all three possibilities would seem to enhance understanding of the text.

35 See Storing (ed.), The Anti-Federalist, for both a commentary on (found in the first volume of that series) and a collection of the literary endeavors of the anti-Constitution party (found in the remaining six volumes). A selection of these texts can be found in William B. Allen and Gordon Lloyd (eds.), The Essential Antifederalist (Lanham, MD: University Press of America, 1985), or in Ralph Ketcham (ed.), The Anti-Federalist Papers; and, The Constitutional Convention Debates (New York: New American Library/Mentor Books, 1986).

36This pamphlet has been reproduced in Paul Leicester Ford, ed., Pamphlets on the Constitution of the United States (Brooklyn, NY: privately printed, 1888), 69-86. And see also The Correspondence and Public Papers of John Jay, 4 vols., ed. by H. P. Johnston (New York: Putnam's Sons, 1892), 2:294-319. At least some of what appears in An Address seems to me have been cribbed by Jay from previously published essays later collected under the title The Federalist. Jay then presented these arguments in an attractive summary form. He also added some powerful arguments against the view that a second convention would be able to solve the presumed difficulties in the proposed Constitution. That part of the pamphlet may have been particularly helpful in the ratification struggle in New York.

37 I have not attempted to set forth or assess the debate over the actual extent of influence exerted by The Federalist on the ratification of the proposed Constitution either in the ratification debate in New York or elsewhere. As interesting and significant as that issue may be to historians and others, it is not necessary to reach a conclusion concerning it when attempting to grasp the lasting significance of the work of Publius. In addition, it is quite irrelevant to the question of the meaning of the arguments found in The Federalist.

38 In this case, the author was Alexander Hamilton. It should be noted that the first readers had no way of knowing who the author or authors were of the letters signed by Publius. And Hamilton, Madison and Jay seem to have intended their work to be read as that of a single author and not as reflections of diverse stances on the proposed Constitution. I have therefore adopted the convention of referring, for the most part, to Publius, rather than to the one who is now known (or believed) to have actually written a given essay. Though this device cannot entirely restore for the current reader the innocence of the first readers, it may help overcome some of the bias that inevitably creeps in when we discover the names of the actual authors of the essays. And given the various subsequent quarrels between Madison and Hamilton, the current reader may be tempted to read back into The Federalist some biases flowing from whatever understanding they may have acquired of those subsequent quarrels. For an instructive treatment of these issues, see Paul A. Rahe, Republics Ancient and Modern, vol. III, Inventions of Prudence: Constituting the American Regime (Chapel Hill: University of North Carolina Press, 1994).

39 As I have already pointed out, a number of historians have been offended by such an assumption. Gordon S. Wood, for example, has made what appears to me to be a rather spirited denial that The Federalist teaches much of anything that is simply true. Instead, Wood insists that essays like The Federalist merely contain the literary remains or products–the ideology–generated by the circumstances which somehow gave rise to those teachings. It is the business of the historian to uncover this ideology. See especially Wood's essay entitled "The Fundamentalists and the Constitution," New York Review of Books 35 (February 18, 1988): 33-40. Somewhat puzzling but certainly less tendentious remarks by Wood can be found in his "Ideology and the Origins of Liberal America," William and Mary Quarterly 3rd. Ser., 44/2 ( April 1978): 628-640 at 632-633; and in his "Democracy and the Constitution," 3-4, especially n# 5 at 4.

40Charles Beard, And Economic Interpretation of the Constitution of the United States (New York: Free Press, 1935, original ed., New York: Macmillan, 1913). Since the controversy over Beard's influential "economic interpretation" of the Constitution, which in part was made to rest on his reading the Tenth Federalist, has since the 50s more or less lost its hold on political scientists and historians, I have not thought it profitable to describe the various responses it engendered. Nor have I included references to the primary sources in the Beard-controversy in my Bibliography. For a reasonably accessible and reliable summary of the controversy over Beard's interpretation of the Founding, see James H. Hutson, "The Creation of the Constitution: Scholarship at a Standstill," Reviews in American History 12/4 (December 1984): 463-477 at 467-472.

41As well as Aristotle and James Harrington, but especially to Karl Marx and certain others who reduce ideas to rationalizing "ideology" somehow molded or conditioned if not generated by underlying and controlling "economic" forces.

42Specifically by Douglass Adair. See Fame and the Founding Fathers, edited by Trevor Colbourn (New York: W. W. Norton, 1974), for Adair's highly influential essays. And later Adair was joined in his project by Martin Diamond. For Diamond's influential essays, see As Far as Republican Principles Will Admit: Essays, ed. by William A. Schambra (Washington, DC: AEI Press, 1992). Of course, Beard's book was not the first to argue that the Constitution was radically undemocratic. J. Allen Smith's The Spirit of American Government, A Study of the Constitution: Its Origin, Influence and Relation to Democracy (New York: Macmillan, 1907) offered what was perhaps the earliest influential version of this argument. But Smith seems not to have focused scholarly attention on The Federalist, as Beard later did.

43Bentley, The Process of Government, ed. by Peter Odegard (1908; reprinted, Cambridge, MA: Belknap Press of Harvard University Press, 1967).

44Truman, The Governmental Process (New York: Alfred A. Knopf, 1951).

45Wood, "Democracy and the Constitution," 11.

46See especially Dahl's A Preface to Democratic Theory (Chicago, IL: University of Chicago Press, 1956), especially the chapter entitled "Madisonian Democracy," 4-32. Dahl contrasts what he takes to be Madison's views with those of populists and with his own "pluralist" understanding of politics.

47As an example of the trenchant criticisms of Dahl's speculations, and especially of his understanding of Madison's arguments in Federalist 47-51, see M. J. C. Vile, Constitutionalism and the Separation of Powers (New York: Oxford University Press, 1967), 303-313.

48This is an accepted practice. For others who have adopted this convention, see George W. Carey, The Federalist: Design for a Constitutional Republic (Urbana, Il: University of Illinois Press, 1989), xxix; or Charles R. Kesler's "Introduction" to the collection of essays he edited under the title Saving the Revolution: The Federalist Papers and The American Founding (New York: Free Press, 1987), 6.

49 See his "The 'Other' Federalist Papers," 224, n.20.

50On this issue, see Douglass Adair's "A Note on Certain of Hamilton's Pseudonyms," in his Fame and the Founding Fathers, 282-297.

51 Publius appears to have been taken over from the praenomen of one Valerius Publicola, after it was decided not to sign the essays "A Citizen of New York," which appears to have been the first intention. See William Cabell Rives, History of the Life and Times of James Madison, II:484. Alexander Hamilton seems to have taken his pseudonyms seriously. See Adair's "A Note on Certain of Hamilton's Pseudonyms," 272ff., especially 272, n.4. Another writer claims that Publius identifies "the Roman whose life Plutarch pairs with the life of Solon. Publius 'would frame himself to the good acceptation and liking of the people,' taking steps to 'cut off envy from him, winning again as much true authority, as in semblance he would seem to have lost. For this made the people more willing to obey, and readier to submit themselves unto him; insomuch as upon this occasion he was surnamed Publicola, as much as to say, as the people-pleaser'." See David F. Epstein, citing Plutarch's Lives, I, 405, in his The Political Theory of The Federalist, 203, n.24.

52 Citations will be by number and paragraph as found in the edition of The Federalist, edited by Michael Chadwick and published by Global Affairs Press in 1987.

53On the question of who wrote which essay, I have simply followed the views ably set out by Douglass Adair. See his "The Authorship of the Disputed Federalist Papers," William and Mary Quarterly 3rd Ser., 1/2 (April 1944): 97-122; 1/3 (July 1944): 234-264; reprinted in Fame and the Founding Fathers, 27-74. Adair's opinion on the issue of the disputed authorship of some of The Federalist has been subsequently supported by what have come to be called "word-print studies." With the assistance of the computer and certain statistical programs it is possible to identify the frequency of the use of non-technical words in different authors and then compare those frequency profiles. And it seems to turn out that each author has a different profile in the use of such language. See Frederick Mosteller and David L. Wallace, Inference and Disputed Authorship: The Federalist (Reading, MA: Addison-Wesley, 1964) for an early word-print testing and apparent vindication of Adair's identification of Madison as the author of the disputed essays in The Federalist. Subsequently word-print studies–not to be confused with the study of an author's style, since we are dealing with matters over which there appears to be little or no conscious control–have become much more sophisticated than the Mosteller and Wallace study.

54A good example can be found in some recent work by Daniel W. Howe entitled "The Political Psychology of The Federalist," William and Mary Quarterly 44/3 (July 1987): 485-509; and then later in a different version under the title "The Language of Faculty Psychology in The Federalist Papers," in Conceptual Change and the Constitution, ed. by Terence Ball and J. G. A. Pocock (Lawrence, KA: University Press of Kansas, 1988), 107-136. Howe stresses the rather obvious reliance of Publius on a version of what is known as faculty psychology, and he sets out in detail what that might mean. But in the urge to read this valuable insight into some of the language in The Federalist as a key to unlocking its meaning tends to lead Howe into going beyond the evidence by occasionally reading into the text things that do not always seem entirely warranted.

55 Much of the current literature on the Revolution and the subsequent Founding manifests an attempt in one form or another to settle, for example, the question of whether the Constitution is a manifestation of a new liberal understanding of politics or whether it is rooted in an older republican vision of the world. When this issue comes to dominate the mind of the reader, then instead of allowing what the author's of The Federalist have its say, this essentially recent question, with its own set of assumptions, categories and understandings, which were not part of the horizon of the founding generation, is made the ground for interpreting the text. This may present an impediment to understanding a text such as that produced by Publius.

56 No attempt has been made to introduce the reader to the literature on The Federalist, the American Founding or the history of either. Citations to materials other than The Federalist have therefore been kept to a minimum. I have not attempted to present my interpretation of the text by quarreling with other writers with whom I find myself in disagreement. It seems unnecessary to attempt to set forth the meaning of The Federalist by first describing the various ways it has been misunderstood, ignored or otherwise abused.

57The original second volume of The Federalist carried the title The Conformity of the Proposed Constitution to the True Principles of Republican Government.

58 This essay subsequently appeared on October 30 in the New-York Packet and the Daily Advertiser. All but the last eight of these essays were published first in newspapers in New York City, though the first paper to publish a given essay varied over time. It was common for two or three newspapers to follow the initial publication of an essay by a day or two.

59 See especially Hume's essay entitled "That Politics May be Reduced to a Science," in his Essays Moral, Political, and Literary (Indianapolis, IN: Liberty Classics, 1985), 25-27. (Hereafter cited as Hume's Essays.)

60 The expression "public good" appears frequently in The Federalist. See 1.3, 11; 2.15; 10.2, 13, 18, 19, 26; 13.3; 14.4, 27.6; 30.7; 31.6; 37.3, 17; 41.4; 43.3; 45.2; 63.25; 64.3; 66.13; 71.2; 73.6; 71.13; 79.5.

61 Hume also thought that "legislators," meaning the founders of republics or law-givers, "ought not to trust the future government of a state entirely to chance [Hamilton's 'accident and force'?], but ought to provide a system of laws to regulate the administration of public affairs to the latest posterity. Effects will always correspond with causes; and wise regulations in any commonwealth are the most valuable legacy that can be left to future ages."

62 A glance at the index to The Federalist will indicate the frequency with which these words were used by Publius.

63 "Politician" or "politicians" was used nine times in The Federalist, mostly in a pejorative way. See 2.3; 10.23; 11.9; 15.9; 24.11; 25.10; 38.7; 45.2; 70.6.

64 See, for example, Hume's essay entitled "Of Commerce," in his Essays, 253-267.

65 Quoted from Adair's Fame and the Founding Fathers, ed. by Trevor Colbourn (New York: W. W. Norton, 1974), 21.

66 Madison, Notes on the Debates in the Federal Convention of 1787 Reported by James Madison, ed. by Adrienna Koch (New York: W. W. Norton, 1969), 195. (Madison's spelling and abbreviations are retained, and hereafter cited as Madison, Notes on the Debates.)

67 For the first use of the expression "military establishment," see 8.2, 3, 9, 13. The expression or its rough equivalent, "standing army," appears frequently in The Federalist.

68At least by the time he scribbled notes for a projected series of essays setting out his political theory, James Madison seems to have been aware of Plato's argument. He appears to have known of it through Montesquieu, who cited the Republic, bk. V, rather than the Laws. See Madison's "Notes for the National Gazette Essays" [ca. December 19, 1791-March 3, 1792], The Papers of James Madison, ed. by Robert A. Rutland et al. (Chicago:

69 Publius begins to gradually introduced talk about a national government [see, for example, 3.4, 8] to describe the well-constituted republic.

70 If, as those opposed to the nationalist bent of the proposed Constitution tended to argue, Montesquieu's opinion that republics must necessarily be small in order to generate and preserve the virtues necessary for republican government is to settle the matter, the states would have to be dissolved and replaced by much smaller political entities. So Montesquieu's views on small republics could be turned against the critics of the Constitution.

71 The Greek word stasis, carrying the primitive meaning of something like "set," "position" or "stance," is sometimes translated "faction," but it can also be translated as "quarrel," or even "civil war." Allan Bloom preferred "faction" to the other alternatives. See his translation of The Republic of Plato (New York: Basic Books, 1968). The passages are at 351d-352a, 440b, 440e, 444b, 459e, 464e, 465a-565b, 470b-470d, 471a, 488b, 520c-520d, 545d, 547a-520d, 545d, 547a-547b, 554d, 556e, 560a, 566a, 586e, 603d. On the other hand, Thomas L. Pangle prefers "civil war." See his translation of The Laws of Plato (New York: Basic Books, 1980), 628b-628c, 630b, 636b, 678e, 678e, 679d, 690d, 708b-708c, 713e, 715b, 729a, 744d, 757a, 757d, 832c, 856b, 869c, 945e. Stasiodes or stasiotikos make a move from mere "quarrel" or "faction" in that sense to something like "sedition."

72 The probable source for the novel idea that a large rather than a small republic would provide a cure for the mischiefs of faction was David Hume's essay entitled "Idea of a Perfect Commonwealth," his Essays, 512-529. In speculating about the possibility of France or Great Britain–what were then clearly mixed regimes–ever being "modelled into a commonwealth," or pure republic, Hume explains "that such a form of government can only take place in a city or small territory." Then he adds the following observation: "Though it is more difficult to form a republican government in an extensive country than in a city; there is more facility, when once it is formed, of preserving it steady and uniform, without tumult and faction." (Hume's Essays, 527.) Democracies are turbulent. "For however the people may be separated or divided into small parties, either in their votes or elections; their near habitation in a city will always make the force of popular tides and currents very sensible. Aristocracies are better adapted for peace and order, and accordingly were most admired by ancient writers; but they are jealous and oppressive. In a large government, which is modelled with masterly skill, there is compass and room enough to refine the democracy.... At the same time, the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest." (Hume's Essays, 528.) Douglas Adair was the first to point to this essay as the source for Publius' attempt to provide a cure for the mischiefs of faction by extending the republic. See Adair's "'That Politics Can be Reduced to a Science': David Hume, James Madison and the Tenth Federalist," in his Fame and the Founding Fathers, 93-106.

73 Sherman had earlier listed as the main objects of a national government the following: described defense against foreign and internal "resort to force," making treaties and regulating commerce with foreign nations. Sherman had admitted that faction and oppression would take place in small states. This provided an occasion for Madison's lecture to the Convention on the benefits of an extended republic in controlling the abuses of factions, sects, and interests. See Madison's Notes on the Debates, 74, 76.

74 Madison's Notes on the Debates, 76.

75 "All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives," asked Madison, "are to restrain them"? "Conscience, the only remaining tie, is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression.–These observations are verified by the Histories of every Country...." Madison's Notes on the Debates, 76. These remarks are drawn from the memorandum Madison made in April 1787 on the "Vices of the Political System of the United States," prior to the Philadelphia Convention. See Papers of James Madison, ed. by Robert A. Rutland et al. (Chicago: University of Chicago Press, 1975), 9:354-355. (Hereafter cited as "Vices of the Political System.")

76 Madison's Notes on the Debates, 77, cf. "Vices of the Political System," 356. Herbert Storing, in What the Anti-Federalists Were FOR: The Political Thought of Opponents of the Constitution (Chicago: University of Chicago Press, 1981), 92, n.49, listed Madison's earlier efforts to work out his defense of an extended republic. See also David F. Epstein, The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984), 206, n.2, which mentions the same materials.

77 James Madison to Thomas Jefferson, October 24, 1787, , ed. by Robert A. Rutland, and others (Chicago: Chicago University Press, 1977), 10:212-214. (Hereafter cited as Madison to Jefferson, 24 October 1787.) This important letter is also found in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (Baltimore: Penguin Books, 1986), 65-76; and in Bernard Bailyn (ed.), The Debates on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, in two parts (New York: Library of America, 1993), 1:192-208.

78 "Vices of the Political System," 356.

79 Madison to Jefferson, 24 October 1787, ?

80 James Madison to Thomas Jefferson, 24 October 1787, 205-220.

81 Madison to Jefferson, 24 October 1787, 212. "If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians of both the public Good and of private rights." Madison, "Vices of the Political System," 354.

82 Madison to Jefferson, 24 October 1787, 212.

83 Madison to Jefferson, 24 October 1787, 212.

84 Madison, "Vices of the Political System," 355.

85 Madison to Jefferson, 24 October 1787, 213.

86 Madison, "Vices of the Political System," 355.

87 Madison to Jefferson, 24 October 1787, 213.

88 Madison to Jefferson, 24 October 1787, 213.

89 Madison, "Vices of the Political System," 355.

90 Madison to Jefferson, 24 October 1787, 213-214.

91 Madison to Jefferson, 24 October 1787, 214.

92 Madison to Jefferson, 24 October 1787, 214.

93 Madison, "Vices of the Political System," 356-357.

94 Or, as Madison told the Philadelphia Convention, by enlarging the sphere of republican government, a defense had been found against "the inconveniences of democracy consistent with the democratic form of Govt." Madison, Notes on the Debates, 70.

95 Popular government appears to be the general label for democratic governments that range from pure (or direct) democracies to indirect or representative democracies or what are "republics." For clarification on the use of the expression "popular government," see 10.1, 2, 18, 19, and cf. 9.8; 14.1, 4; 18.17; 39.6; 51.17; 63.12, 16; 83.12. See also Storing's What the Anti-Federalist Were FOR, 90, n.19, for a discussion of the use of the labels "democracy," "republic," and "popular government" by the Founders, including the anti-Constitution party.

96 Madison, Notes on the Debates, 76.

97 Madison also included in the list of primary objects of government "the security of private rights, and the steady administration of justice." Madison, Notes on the Debates, 76. It is necessary to understand the various statements concerning the objects of government in the context of the argument of The Federalist as a whole. The plan of the book needs to be kept in mind. Otherwise, it appears that this or that object is made the first object of government, without due attention to anything other than the necessity of providing a rhetorical flourish.

98 Hume's Essays, 54-63.

99 Hume's Essays, 55-56. "Of all men, that distinguish themselves by memorable achievements, the first place of honour seems due to LEGISLATORS and founders of states, who transmit a system of laws and institutions to secure the peace, happiness and liberty of future generations. The influence of useful inventions in the arts and sciences may, perhaps extend farther than that of wise laws, whose effects are both limited in time and place; but the benefit arising from the former is not so sensible as that which results from the latter." "And as to practical arts, which increase the commodities and enjoyments of life, it is well known, that men's happiness consists not so much in the abundance of these, as in the peace and security with which they posses them; and those blessings can only be derived from good government. Not to mention, that the general virtue and good morals in a state, which are so requisite to happiness, can never arise from the most refined precepts of philosophy, or even the severest injunctions of religion; but must proceed entirely from the virtuous education of youth, the effect of wise laws and institutions." (Hume's Essays, 54-55.)

100 Hume's Essays, 56.

101 Hume's Essays, 56.

102 Hume's Essays, 63.

103 Hume's Essays, 60.

104 Hume's Essays, 60-61.

105 Madison, Notes on the Debates, 76.

106 Hume, on the other hand, argued that commerce would soften the manners and tame the aggressions of man. Hume's Essays, 253-267.

107 Hume's Essays, 56.

108 Hume's Essays, 94.

109 Private rights are linked to the diverse faculties of men. Some are spirited and political while others are acquisitive. The public good seems to be an interest, often unknown or not pursued in the heat of the battle by republican man. It includes the general interest of man, rather than the particular interests of men.

110 Madison, Notes on the Debates, 42. Madison reported that, in the Philadelphia convention, Randolph "observed that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracies: that some check therefore was to be sought for agst. this tendency of our governments...."

111It is not clear that Publius had in mind what we understand as industrial enterprize when he referred to "commerce."

112 This claim appears to be something of an exaggeration, for ancient petty republics seemed to have relied upon some forms of representation, even if not exclusively, or in exactly the manner familiar in the States and advocated by Publius.

113 An energetic national government will need to be checked in such a manner that it will not endanger liberty.

114And especially in Federalist 10.

115 This essay was originally number 35, but was given its logical rather than chronological order when the original essays from the newspapers were collected and published in book-form by McLean.

116Publius is not suggesting that citizens have some primitive power or right to organize themselves for the purpose of righting supposed wrongs by a kind of para-military action, as some have recently mistakenly held.

117 The essays numbered 32 and 33 were originally both published as a single essay on January 2, 1788, and were only later divided into two parts.

118 The theory of representation advanced by Publius receives additional treatment in Federalist No. 57.

119 See edition edited by Jacob Cooke of The Federalist, 230.

120The title included in parenthesis is taken from the subtitle to the original second volume of The Federalist.

121In current popular accounts no distinction is made between what are called "checks and balances" and "separation of powers."

122Including North Carolina, Virginia and Maryland in 1776, Georgia in 1777, Massachusetts in 1780 and New Hampshire in 1784.

123For Thomas Jefferson's "Notes on Virginia," see The Life and Selected Writings of Thomas Jefferson, ed. by Adrienne Koch & William Peden (New York: Modern Library, 1944), 237-239.

124The English also included, in addition to attainder, bills of pains and penalties or confiscation, but by the time the Constitution was written all of these seem to have been subsumed under one rubric.

125John Marshall claimed that "judicial power is part of the executive," he was consistent with the view expressed by Publius. See Ogden v. Saunders 12 Wheat. 213, 344 (1821).

126 Rev. James Madison to James Madison, c. October 1787, found in Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, in two parts (New York: Library of America, 1993), 1:48-49 at 49.

127 Rev. James Madison to James Madison, 49.

128 Rev. James Madison to James Madison, 49.

129 The intellectual contents of separation of powers have been set forth in Francis D. Wormuth's The Origins of Constitutionalism (New York: Harper, 1949), 4, 8-9, 59-72, 106, 159, 179-180, 191-206. Wormuth also clearly distinguished separation of powers from checks and balances. And he stresses the link between the separation of powers and the rule of law.

130Aristotle, Politics III. 16. 1287 et seq.

131Something like F. D. Wormuth's understanding of the separation of powers and its link to the rule of law has been defended by David F. Epstein in his The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984), 126-136. Epstein develops what he calls the "rule of law version" of the doctrine of separation of powers, which he seemingly borrows from William B. Gwyn, who seems to have borrowed it from Wormuth, though not entirely consistently or coherently. See Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution (New Orleans: Tulane University Press, 1965). Instead of focusing on the rule of law which clearly is what is at stake in the separation of powers, Gwyn strives to set out five different versions of what he sees as the separation of powers doctrine. Unfortunately they are not really versions of one doctrine but actually quite different doctrines. The version that is now rather commonly described as "the rule-of-law version" is what is being defended by Publius as separation of powers.

132What William B. Gwyn calls "the balancing version" of separation of powers is actually what Publius describes as "legislative balances and checks." The other three theories that Gwyn includes under the label "separation of powers," that is, "the accountability version," "the common interest version," and "the efficiency version" have little or no place in The Federalist, though they have been confused with what is taught by Publius.

133Clearly Publius strives to describe separation of powers as a way of protecting against tyranny by implementing the rule of law, and he also defends the different notion of "legislative balances and checks," which turns out to be a bicameral legislature coupled to an executive veto. For a convenient summary of the five so-called "versions" of separation of powers, with a rather good explication of "the rule-of-law version," see Gwyn, "The Separation of Powers and Modern Forms of Government," in Robert A. Goldwin and Art Kaufman, eds., Separation of Powers–Does It Still Work? (Washington, D.C.: American Enterprize Institute, 1986), pp. 65-89. See also Anne M. Cohler, "Moderate and Free Government: The Division of Powers," in

134 Hume's Essays, 51. Though it is Madison who expressed the view that "all government rests on opinion," Hamilton was even more deeply committed to that idea. See Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford: Stanford University Press, 1970), 92-93, and n.64-65 at 237.

135 Hume's Essays, 31.

136 Hume's Essays, 36. At a later date, James Madison argued that "in proportion as Government is influenced by opinion, must it be so by whatever influences opinion. This decides the question concerning a bill of rights, which acquires efficacy as time sanctifies and incorporates it with the public sentiment." The Papers of James Madison, ed by Robert A. Rutland et al. (Chicago: University of Chicago Press, 1983), 14:162. This language is taken from Madison's rough "Notes for the National Gazette Essays," dated sometime between December 19, 1791 and March 3, 1792.

137 Hume's Essays, 34.

138 Hume's Essays, 33.

139 Hume's Essays, 33. "When men act in a faction, they are apt, without shame or remorse, to neglect all the ties of honor and morality, in order to serve their party; and yet, when a faction is formed upon a point of right or principle, there is no occasion, where men discover a greater obstinacy, and a more

140 Jefferson then mentions that the legislature becomes despotic "with no ill intention." But in the future "mankind soon will learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty, intended to have been deposited with three branches of magistracy, but found inadvertently to be in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circumstance, that they are the instrument, as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money. Nor should our [Virginia] assembly be deluded by the integrity of their own purposes, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this...country...will have seized the head of government, and will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and claws after he shall have entered." Jefferson, "Notes on Virginia," in The Life and Selected Writings of Thomas Jefferson, 237-239.

141 Bicameralism emerged under mixed regimes. The English constitution provided an example. One chamber of the legislature, the House of Commons, was popular, while the other chamber, the House of Lords, represented the landed aristocracy–a separate and distinct social class. When the monarchy was included, a scheme of what has come to be known as checks and balances was possible. Lords and Commons provided the other checking elements in the legislative process. The Founders borrowed bicameralism from mixed regimes and transformed it into a wholly republican institution. For a clear explication of the various meanings associated with the expression checks and balances, see F. D. Wormuth, The Origins of Constitutionalism, 4, 22-23, 56, 72, 88, 106, 108, 111, 119, 125-126, 149, 159, 174-183, 196ff., 211.

142"A dependence on the people" might be seen as a dependence on elected representatives. But this reading seems unlikely. Publius had already explained in detail in Federalist 47-49 why legislative power was a threat to republican liberty if unrestrained.

143 Since we do not now usually think in these terms, it may be useful to keep in mind that the word "knave" identifies, among other things, one tricky and deceitful, a rogue or rascal, a person given to mischief.

144 David Hume, "On the Independency of Parliament," in Hume's Essays, 42.

145 Hume's Essays, 42-43.

146 Hume's Essays, 43.

147 On June 20, 1788, in the Virginia Ratifying Convention, Madison made the following statement: "I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no

148 See especially 6.2; 51.6; and 76.11.

149 This was changed in 1913 to direct election by the people in each state as a result of the adoption of the Seventeenth Amendment.

150Madison was at times very annoyed by charges that the Framers had consolidated the states.

151 This and the following essays were not initially published in a New York newspapers but were published by McLean in book-form.

152 Judicial review seems to have been taken for granted by the delegates assembled at Philadelphia. According to Forrest McDonald, "despite the shakiness of the precedents for the doctrine [presumably he has in mind instances of judicial review in the states], the courts would by the very nature of their function have the power to strike down legislative acts if they were in violation of the Constitution. At least eight delegates of widely divergent political views–Gerry, King, Sherman, Madison, Gouverneur Morris, Luther Martin, Wilson, and Mason–asserted that the courts would have such power, and no one argued to the contrary." Forest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 254, and n.72. For a summary of the evidence that the critics of the Constitution also expected judicial review, see Storing, What the Anti-Federalists Were FOR: The Political Thought of the Opponents of the Constitution (Chicago: University of Chicago Press, 1981), 50, 93, n.13. That the opponents to the Constitution expected judicial review if it was adopted does not mean that they approved of it. Brutus, for example, was very much opposed to judicial review, since he felt that it would make a judiciary that had not been elected more powerful than the elected Congress.

153 It should be noted that the bulk of the items that Hamilton mentions are drawn from the first volume of The Federalist and a number of them were primarily the work of Madison or to a lesser extent Jay.

154 See "That Politics may be Reduced to a Science," in Hume's Essays, 15, 27.

155 Hamilton cites David Hume's essay entitled "Of the Rise and Progress of the Arts and Sciences" as "The Rise of Arts and Sciences." The titles must have been taken from the short running title that was printed at the top of each page in the edition of Hume's Essays available to Hamilton. The essay is currently available in Hume's Essays, 111-137, at 124.

 

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