Thanks to Professor Edmondson for providing an opportunity to reflect on the lessons we might glean from the Federalist Papers, not as a historically significant document that sheds light on our distant past, but as a potential guide to assist us in sorting out our current difficulties. In his discussion of Constitutional interpretation, Edmondson rightly notes the importance of “the liquidation of meaning” emphasized by Publius. Edmondson quotes from Essay #82, but there are two other brief discussions of liquidation by Publius. It is worth noting that both Hamilton (#78 and #82) and Madison (#37) articulated this doctrine. I think Publius would maintain that, even if the Federalist Papers can help us understand the broad sweep of how the new system will operate (should it be adopted), it cannot help us with the details, because those will emerge only through the actual operation of the institutions established under the Constitution.

My remaining comments fall into two categories. First, I will mention a few areas where I think Publius offers us little assistance. Next, I will touch on three issues raised by Edmondson (the status of the judiciary, the question of slavery, and Publius’s understanding of human nature) but will approach each from a perspective different than his.

At the Convention, there was a general suspicion of political parties, and this is reflected throughout the Federalist Papers. In #50, for example, Publius warns about “the rage of party.” Yet a party system developed almost immediately and began influencing the operation of various institutions, from the House and Senate to the dynamics of the Electoral College. Channeling his inner Barney Fife, Publius might recommend, “Nip it, nip it in the bud.” But once party spirit has bloomed, I am not sure Publius provides much help on how to control it.

Publius argues against adding a Bill of Rights to the Constitution in #84, yet a Bill of Rights is quickly adopted. While originally aimed at the general government, today almost all the provisions of the Bill of Rights restrict the states also. Arguably the most contact between government and citizen revolves around those provisions involving speech, religion, assembly, the right to bear arms, and all the provisions involving the justice system: searches and seizures, speedy trials, and cruel and unusual punishment. If we add to the attention paid to the original Bill of Rights, the attention given to the bill-of-rights-like provisions of the Civil War Amendments (e.g., due process, equal protection, the right to vote), it is clear that most of our public debate is framed by the language of individual rights. Thus, something that Publius strongly opposed provides the foundation for most of our political concerns today.

The rise of the administrative state and the corresponding use of administrative courts challenges the traditional understanding of the separation of powers and appears to operate outside of the political order envisioned by Publius. Because administrative courts often judge the legitimacy of regulations of the agencies they are part of, they challenge the principle of justice articulated in Essay #10: “No man is allowed to be a judge in his own cause.” Further, in #47 we find this statement: “The accumulation of law powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” Administrative agencies, however, make rules, enforce them, and have their own courts to decide conflicts.

Congress could address this concern by actually passing detailed legislation rather than delegating this responsibility to independent agencies. The courts could rein in the discretion exercised by administrative courts. Both would require a considerable amount of resolve. Given the political calculus I discuss below, I think either possibility is unlikely.

Finally, I am not sure Publius has advice to help us maneuver in the high-tech world of instant communication we now live in. Near the end of Essay #10, Publius draws his famous conclusion: “Extend the sphere and you take in a great variety of parties and interests; you make it less probable that a majority of the whole will have a common interest to invade the rights of other citizens.” That is, the extended Republic solves the problem of majority factions. Publius does not conclude this sentence there, even though that is where most people probably quit reading. Instead of inserting a period as I did above, he inserts a semi-colon, and then completes his thought: “or if such a common interest exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.”

In Essay #63, Publius returns to the idea that size or distance alone can help moderate political passions: “It may be suggested, that a people spread over an extensive region, cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions; or to the danger of combining in the pursuit of unjust measures.” In the age of social media, smartphones, and 24/7 news outlets, it is easier than it has ever been to generate passionate demonstrations, acts of civil disobedience, and pressure campaigns on both private and government institutions, and to identify and communicate with like-minded individuals. Is it possible today to gauge “the cool and deliberate sense of the community”? Can that “cool and deliberate sense” even exist in today’s climate?

Is the Judiciary the “Least Dangerous Branch”?

If we take Publius’s doctrine of liquidation seriously, we might compare the actual operation of various institutions today with his characterization of how they will work. In Essay #78, Publius covers many aspects of the judicial system, but I want to focus on his understanding of its role. “Whoever attentively considers the different departments of power must perceive that … the judiciary, from the nature of its functions, will always be the least dangerous to the rights of the Constitution. … It may truly be said to have neither FORCE nor WILL but merely judgment.”

Political scientist George Carey makes a helpful distinction in thinking about judicial judgment and the Constitution. “The Constitution is not an ends oriented document. … This is to say, the Framers’ objective was primarily to provide a means for making decisions, while simultaneously securing the rule of law.” I make the same point using different language: the Constitution is a governing document, not a policy document. The Constitution establishes institutions, assigns those institutions certain powers, and establishes certain legal requirements to take action (e.g., to enact a law you must have a majority of a quorum in each house). The Constitution does not determine the goals to be pursued (other than aspirationally in the Preamble) or ignored, leaving those decisions to the wisdom of the officials holding office.

In recent years, partisans of various stripes have attempted to convert the Constitution into a policy document, claiming that certain substantive outcomes were either per se unconstitutional or mandated by the Constitution. Here are comments from recent Supreme Court opinions rejecting this push. Scalia, dissenting in U.S. v. Windsor:

The Constitution does not forbid the government to enforce traditional moral and sexual norms. … The Constitution neither requires nor forbids us to approve of same-sex marriage. Much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

Chief Justice Roberts, writing for the Court in National Federation of Independent Business v. Sebelius: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” Alito, writing for the Court in Dobbs v. Jackson Women’s Health Organization: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” Implicit in Dobbs is the view that neither does the Constitution prohibit abortion.

The effort to convert the Constitution into a policy document, an effort supported by people on both the right and the left, is in effect an effort to replace judicial judgment with judicial will. If successful, it will tend to universalize outcomes, thus eliminating the chance for diversity and local experimentation. The constitutionalization of policy outcomes is intended to cut off public debate on public issues, and allow partisans to achieve total victory, something rare in the world of democratic politics, through the Supreme Court.

Slavery

In most cases, Publius bravely steps forward and forcefully argues his position. On the question of slavery, however, Publius is timid, hiding behind a hypothetical speech that “an advocate for the Southern interests might employ,” even while acknowledging that this speech “may appear to be a little strained in some points” (#54). I invite you to contrast Federalist #54, written by Madison, with statements recorded in Madison’s Notes of Debates in the Federal Convention of 1787. His entry of June 6 includes his own comment, “We have seen the mere distinction of color made in the most enlightened period of time, a ground for the most oppressive dominion ever exercised by man over man.”

On August 21, 1787, Luther Martin (MD) proposed that the Constitution allow either the prohibition of or a tax on the importation of slaves because the practice “was inconsistent with the principles of the revolution and dishonorable to the American character.” John Rutledge (SC) responded, “Religion & humanity has nothing to do with this question. Interest alone is the governing principle with nations.” Oliver Ellsworth (CT) believed, “The morality or wisdom of slavery belongs to the states themselves.” The debate continued on August 22, when Rutledge stated that Georgia, South Carolina, and North Carolina would not consent to a union that restricted the right to import slaves. Perhaps the best example of the complex political and moral calculations at play in this debate was captured in Roger Sherman’s remark at the beginning of that session: “He disapproved of the slave trade; yet as the States were now possessed of the right to import the slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it.” Later that same day, Sherman concluded, “It was better to let the S. States import slaves than to part with them, if they made that a sine qua non.”

Once you open a can of worms, there was no predicting where the argument would lead. Oliver Ellsworth upped the stakes: “He said however that if it was to be considered in a moral light we ought to go farther and free those already in the Country.” He then took a step back and held out hope for a peaceful and painless resolution of the slavery question: “Let us not intermeddle. As population increases poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country.” The Convention hoped that this issue would resolve itself without direct action. The Convention therefore resolved to kick the can down the road, and Publius supported the Convention in this decision. In so doing, the Framers set in motion the model we have followed ever since.

Human Nature, Equilibrium, and the Genius of the People

Edmondson does an excellent job capturing Publius’s understanding of the complexity of human nature, but perhaps that understanding was not complex enough. In Essay #51, Publius argues that the ultimate protection against any one branch of government from absorbing all power for itself is “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Consider this possibility: Ambitious officeholders from the various departments may discover that they can achieve their goals more efficiently and with less risk to themselves through collusion rather than collision with the other branches. Man is a gamester, always looking for a way to beat the system and searching for a way to turn rules designed to hedge in his efforts at self-promotion into another tool he can use to his own advantage. This is why government as a “machine that will go of itself” is an illusion, and why the old revolutionary slogan, “eternal vigilance is the price of liberty,” remains true. The economist Frank Knight would accept in general terms much of what Publius says about human nature but add a bit more:

In his social life … man is a lawmaker and law-abider, one who loves ritual, formality, and rules for their own sake; yet he is also a lawbreaker, for many reasons and not merely for the sake of nonconformity and defiance. He loves what is established because it is old, and he loves novelty because it is new, and change for the sake of change. Civilized man is a capricious and perverse animal.

One suggestive line of thought found in the Federalist Papers that has not been touched on involves seeing both state and national relations and relations between the three branches at the national level in terms of equilibrium rather than supremacy. The idea of floating, rather than permanent, sovereignty may be revolutionary, but is at least hinted at by Publius.

While Publius realizes that conflicts may arise between individual states and the national government, he maintains that at least initially states have certain advantages, especially in the arena of popular support (e.g., Essay #25). Essay #45 suggests, “The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.” This suggests the possibility of free-floating power that gravitates to the proper level as conditions demand. Ultimately, “the prudence and firmness of the people” will determine whether “the constitutional equilibrium between the general and the State governments” survives (Essay #31).

Publius is also concerned about maintaining the “constitutional equilibrium” between the branches at the national level (Essay #49). His great fear is legislative aggrandizement: “The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex” (Essay #48). Maintaining this balance requires that each branch have its own primary powers, but also “partial agency” in the other branches (Essay #47). Partial agency allows members of each branch to have a limited check on other branches; crucial for this to be effective, as noted above, is that the welfare or interests of officeholders be tied to the willingness to use those powers. Congress has the constitutional authority (Art. 3, Sec. 2) to limit the appellate jurisdiction of the Supreme Court, for example, but unless it is willing to use that power, it cannot control the Court’s docket.

Finally, what is Publius’ goal? To establish a government reflective of the “genius” or character of the American people. Americans are both enterprising and independent, and their character demands a republican government. Willmoore Kendall writes,

as disciples of Publius, what we should want above all is that the relevant questions shall be decided by “the deliberate sense of the community” … not about the intent of the Founders (it was, above all, that we should govern ourselves and so prove to mankind that self-government is possible) … but about the merits of the competing policy alternatives amongst which we, as a self-governing people, are obliged to choose.