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Federalist 84: Completing the Declaration of Independence

federalist papers

The Sixteenth of July, not having the same ring, will never compete with the Fourth for fireworks, picnics, or paeans to the document published on that day. But now that Americans have digested our annual hosannas to the natural rights theory of the Declaration of Independence, we might save a moment to remember the appearance, in the New York Independent Journal of July 16, 1788, of Publius’ broadside against a Bill of Rights. If the Fourth of July represents the American contribution to abstract universalism on rights, July 16 was the day we theorized it, in Federalist 84, as the achievable expression of a particular polity.

Received wisdom now holds that Abraham Lincoln completed the Founding project at Gettysburg by restoring the Declaration to its proper place: the apple of gold displayed in the constitutional frame of silver. There is great insight in that understanding. But it may also help to invert, as it were, the telescope and look closer in time. Rather than Lincoln completing the work of the Constitution by elevating it to the plane of equality and natural rights, there is a substantial sense in which Publius completed the work of the Declaration by grounding it in the concrete experience of a particular political community.

As Edmund Burke noted, abstract commitments receive meaning through particular political traditions. It is this expression in the concrete that grounds abstract rights and inhibits their abuse. As the French were to demonstrate in blood, only a year after Federalist 84 was penned, abstractions unmoored from the concrete, lived experience of human beings easily become unhinged. These utopian commitments do not have to grapple with the tradeoffs inevitable in prudent statecraft.

A human face needs to be put on abstruse philosophy. Lived experience does that. Liberty, equality, and fraternity are noble goals in the abstract. Carried to their extremes—assuming they have meanings that can be actualized, which the likes of Robespierre insisted they did—they delude their adherents into the belief that they are well worth the necks of an unsavory few, or unsavory thousands. Such projects tend to be evangelistic, as the French Revolution—and, later, the Russian—became.

Friedrich von Gentz wrote in 1800 (in a work translated into English by John Quincy Adams) that a crucial difference between the American and French Revolutions was that the former appealed to the particular rights of citizens:

Never, in the whole course of the American revolution, were the rights of man, appealed to, for the destruction of the rights of a citizen; never was the sovereignty of the people used as a pretext to undermine the respect, due to the laws, or the foundations of social security; no example was ever seen of an individual, or a whole class of individuals, or even the representatives of this, or that single state, who recurred to the declaration of rights, to escape from positive obligation, or to renounce obedience to the common sovereign; finally, never did it enter the head of any legislator, or statesman in America, to combat the lawfulness of foreign constitutions, and to set up the American revolution, as a new epocha in the general relations of civil society.

The distinction in no way diminishes the philosophical grandeur of the Declaration. Nor does recognizing this distinction derogate the universalism of the Declaration’s claim that “all” are created equal and that some rights are, by their nature, incapable of alienation.

It is, however, to say that the project was incomplete until Publius expressed those principles through a particular regime. As Martin Diamond observed, the Declaration itself is remarkably agnostic as to forms of government; it was not intended to be a governing blueprint. But neither was its political philosophy wholly grounded until Publius made it concrete.

Gertrude Himmelfarb has argued that The Federalist lacked the universalist “pretensions” of the  French Encyclopédie, with which she contrasts it:

Designed for a specific purpose and a specific country, the papers did take the occasion to reflect upon human nature and society and even aspired to formulate the principles of a science of politics, but such speculations grew out of immediate, practical concerns and were advanced modestly and even tentatively.

This particularism is evident throughout Publius’ work, which is repeatedly grounded in the lived experience of the American polity. Thus, for example, Federalist 7, which deals with the potential for internecine conflict between states, combines a universal claim—that the states would make war for the same reasons all political societies make war—with a particular one: that these states occupy territory and situations particularly disposed to conflict. Similarly, Publius’ most compelling dismantling of the Anti-Federalists’ claim against an extended republic is, as Federalist 9 notes, the demonstrable experience of the already existing American states with territories that exceed the Baron de Montesquieu’s counsel.

Federalist 11 speaks of the “adventurous spirit, which distinguishes the commercial character of America.” The “sense of the people”—that is, this people, it is observed in Federalist 32 (one of several papers to take the constitutional and cultural temperature of the uniquely American republic and to cite it as a protection against abuse)—will prevent the exploitation of the supremacy clause.

In Federalist 48, we are warned to watch after the unique power of the legislature in “our governments.” Federalist 51 speaks of “considerations particularly applicable to the federal system of America.” Federalist 62 defends the necessity of a Senate in part on the grounds that, again, “our governments” are uniquely prone to excessive lawmaking.

Thus Federalist 84: This people’s rights are protected because this regime is assigned only particular powers, which are in turn checked and balanced in a manner suiting (as the previous papers have shown) the genius—that is, the type—of the American people.

This is not a universal claim. It is explicitly claimed for the American Constitution, specifically contrasted with others: “Here, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations.” Most important, the Constitution is itself a bill of rights because it specifies “the political privileges of the citizens in the structure and administration of the government[.]” That is, rights are given meaning and protection through participation in, not merely immunity from, a particular regime, which is why the “ordaining” and “establishing” of the regime by “WE THE PEOPLE . . . is a better recognition of popular rights”—not, significantly, individual ones—than are philosophical constructs.

The particular regime must also give shape to rights that are otherwise loosely defined, if at all.  Federalist 53 had noted that liberty “lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society.” Federalist 84 similarly observes that that the abstract phrase “liberty of the press” lacks concrete meaning. The polity must give it expression and, crucially, its protection ultimately depends on the “general spirit of the people and of the government”—that is, this particular people and this particular government. Abstract proclamations, Publius declares, mean little: They would better belong in “a treatise of ethics, than in a constitution of government.”

To be sure, Federalist 84, like the Declaration, makes bold claims as to rights. But they are now particular rights. The claim is not the rights of “all men” in all places, but rather these rights, of this people, protected in this particular way.

The universal and particular conceptions are not incompatible. One requires the other. The abstractions of the Declaration form the philosophical latticework of Federalist 84’s commitment to rights. But Publius’ expression of them in a particular community through the mechanism of measured self-government gives them meaning and grounding and helps to inhibit both their abuse and their corrosion into untethered individualism.

That concreteness is among Publius’ foremost achievements. Fireworks might be too much to ask for July 16. But without Publius completing the project that began on the Fourth, it is hard to imagine its success.

Reader Discussion

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on July 17, 2017 at 09:05:21 am

Several scholars, among whom I, have concluded that The Federalist had no discernible effect on the ratification contest--that no one can be shown to have voted "aye" on the final question in a ratification convention, for example, because persuaded by Publius. (Besides my Madison biography, see also related books by, e.g., Furtwangler and Maier, besides the introduction to the Carey & McClellan edition of The Federalist.) Among the reasons is that by the time Federalist #84 first appeared in a New York newspaper, 10 states had already ratified the Constitution.

One might think that well, at least New York, which was among the remaining three, was persuaded by Publius. Yet, the outcome of the Poughkeepsie Ratification Convention was due to the fact that 10 states had ratified, the two remaining recusants were not contiguous with New York, and New York Federalists had planted a newspaper story warning that in case New York did not agree to the Constitution, New York City would secede from New York State and join the new federal union on its own. Only thus threatened did the New York Ratification Convention's 2:1 Antifederalist majority bleed enough support to account for the final 30-27 vote for ratification.

To claim that "without Publius completing the project that began on the Fourth, it is hard to imagine its success" is thus unwarranted.

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Kevin Gutzman
on July 17, 2017 at 09:23:41 am

Kevin,

Fair enough, but the whole of the constitutional project wasn't accomplished in the moment of ratification. The Federalist is crucial to long-term self-understanding.

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Greg Weiner
on July 17, 2017 at 09:41:32 am

84 is interesting to me, not because it completes the Constitution, but because it is likely the first time in the context of it, that we get the claim to strict construction: "Here, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations." Hence the surprise of Madison when Hamilton, who penned this essay, moved for the incorporation of a national bank on nothing more than implication...a power which Madison knew had been raised and explicitly voted down in Convention. And so much followed from here...

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Hans Eicholz
on July 17, 2017 at 09:50:15 am

Thanks, Jonathan, for an enlightening piece.

I wonder if von Goentz has got it quite right. He says: "finally, never did it enter the head of any legislator, or statesman in America, to combat the lawfulness of foreign constitutions, and to set up the American revolution, as a new epocha in the general relations of civil society."

But I can think of at least two American statesmen who saw the American founding as a new epoch with regard to how fundamental law is to be perceived. Jefferson, in his Letter to Roger Weightman of June 24, 1826, expressed the hope that the Declaration of Independence would eventually be to all the world a signal “arousing men to burst the chains under which monkish superstition and ignorance had persuaded them to bind themselves,” allowing the light of science to rescue them from the pernicious doctrine of divine right of kings.

Even John Quincy Adams' own father, in his Constitutions of the United States, presents the American founding as unique in the annals of history, and a harbinger of a new approach to politics. He notes that every republic of the past was founded on a fraudulent appeal to a god or gods, while the United States is the only country in which this will never be the case. He argues that the enlightenment of the people has protected them from the “monkery of priests, or the knavery of politicians.”

Thanks again.

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Tim Burns
on July 17, 2017 at 11:27:03 am

More dreary Federalist hagiography.

In Federalist 84, Hamilton appears to be saying that because the Constitution, as written, granted the Federal government almost no jurisdiction over individual living in a state, state constitutions adequately protected any right that the citizens of a state might wish to protect.

In particular, he mentions freedom of the press:

"For why declare that things shall not be done, which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? "

Yet only 10 years later under the Alien and Sedition Acts the Federalists, now led by John Adams, were throwing people in jail and fining them huge amounts of money for criticizing the Federal government.

The Anti-Federalists got it quite right, the Federalist were a bunch of high Whig elitist snakes. Their venom dripped from their pens. The Republic got a reprieve after the election of 1800 that lasted until well after the Civil War. But now we enjoy the exactly the kind of government the Anti-Federalist warned about.

Nevertheless, I agree with Weiner's main point, the rights mentioned in the DoI were not understood to be universal God given rights but rather the "ancient rights and liberties of Englishmen" explored by Edward Coke and John Selden in the 1620s and brought to the Americas in the Winthrop Fleet. Young Thomas Jefferson merely dressed them up in the language of the Enlightenment.

Here is a link to the Massachusetts Body of Liberties of 1641.

http://history.hanover.edu/texts/masslib.html#ms

These had been circulating in draft form the Bay Colony since 1635. They were brought to Connecticut by Haynes and Hooker and they formed the basis of the Connecticut Fundamental Orders of 1638.

The two documents set out the settlers' understanding of their rights and liberties and the underlying constitutional principles are quite obvious; equal protection of the laws, due process, jury trials, notice and opportunity to respond to charges, no cruel and unusual punishment, no takings without compensation, ect.

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EK
on July 17, 2017 at 21:34:26 pm

Perhaps, Justice Ginsburg, should be compelled to read Weiner's essay and ruminate upon the "particularity' of the American constitution and regime, she of a certain "universalist" bent.

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gabe
on July 18, 2017 at 05:55:04 am

Tim,

I think you're right that Gentz overdoes it. Where I think he has it correct is that the American Revolution, in contrast to the French, was never evangelistic, at least in any aggressive sense. That seems compatible with the Adams passage you cite. As to Jefferson: An author of course gets considerable leeway in interpreting his own work, but Jefferson I think had a tendency to emphasize the poetry over the legality of the Declaration, as was his general wont. One could make the argument about particularity just within the four corners of the Declaration by emphasizing that the complaints particularize the poetry.

A more general way to make the argument of the essay above would be to say the Constitutional project completes/particularizes the Revolutionary project--i.e., rather than tying it to the texts per se.

Thanks for the comment. I think you are basically right about Gentz going too far.

Greg

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Greg Weiner
on July 18, 2017 at 15:45:06 pm

If the apogee of the founding is to be discovered in the particularism of the Federalist, why cling to the idea that it must, somehow, fulfill the universalism of the Declaration? Wouldn't a better depiction be that the Federalist corrects the error of the Declaration? Burke's insight is that we perceive political right (and universal truths) not through the abstract speculation of philosophy, but through observation of the particular institutions, actors, and events before our eyes. This is a dim lens; it doesn't reveal all things; and it doesn't give us absolute certainty; but it is the only lens we have. If the more extreme paragraph of the Declaration is correct, then we don't need to rely on that dim lens, because we have more immediate access to some abstract and universal truth by which the laws and institutions can be rationally judged. To the extent that the Federalist reflects Burke's insight, it is correcting the Declaration, not fulfilling it.

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JGrove
on July 18, 2017 at 21:03:22 pm

JGROVE:

Rather liked the comments. I have also harbored similar thoughts on the matter, although I expressed them somewhat differently, i.e., that the Constitution is simply the *codification* of the (whatever( limiting principles are to be inferred within the DOI.

And yet, considering, the current mindset, and some commentary to be had here at LLB, I have come to the conclusion that YOUR formulation may, in fact, be both more accurate and more apt a descriptor.

Consider the universalism of "pursuit of happiness" - It now yields same-sex marriage, pornography, demands for transsexual surgical procedures, etc. Nobody.really believes in the *sweet* "mysteries of life" ( but Justice Kennedy does).

Without an understanding of the *limiting* influence* of the Constitution, as ORIGINALLY written and understood / expounded, what "mystery" is not to be offered AND fulfilled by a government dedicated to the proposition that "all mend are created equal" and are entitled to the[ir particular version of the] pursuit of happiness.

What next, the Black Robes, Justice Ginsburg expecially, will find that the North American Man-Boy Love Association is permitted to pursue its own rather peculiar version of "happiness."
(Hey, after all, the Mayor of the largest city in my state (Seattle) thinks it is proper to do so.

Nobody really believes this, now do they?

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gabe

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