The Federalist Papers, the collection of eighty-five essays authored by Alexander Hamilton, John Jay, and James Madison under the pseudonym of “Publius,” are remarkable. They played a significant role in the ratification of the Constitution of 1787 and at the same time provided the United States with the most brilliant work of original political philosophy by an American, in this case, three Americans. Publius aims at several different audiences that include those concerned with political theory, a loss of state power, the protection of individual liberties, the loss of political power, and foreign hostility. In meeting these challenges, Publius employs varied rhetorical strategies including appeals to ancient Greek and Roman history, analogies to state constitutions (e.g., New York, Virginia, Delaware), analogies to Great Britain, vivid (if not at times lurid) metaphors, emotional appeals, logic, and common sense.
Knowing that the ratification of the Philadelphia Constitution faced an uphill battle in his home state of New York, Hamilton embarked on a project on behalf of the Constitution, essays to be published at breakneck speed in New York newspapers. James Madison was conveniently nearby due to his attendance at the Congress of the Confederation which had been meeting in New York City since 1781. John Jay was a fellow New Yorker; his biographer notes that he was as highly esteemed for his character and intellect as any of the “top tier” Founders. Unfortunately, he fell ill—and only wrote five essays: #2–5 and #64. All of Jay’s essays deal with foreign policy and national security, not surprising given his extensive foreign policy and diplomatic experience under both the Articles of Confederation and the Constitution of 1787.
Interestingly enough, there are no less than three references or allusions to Shakespeare in Jay’s short Federalist Papers corpus; one, however, is egregiously malapropos, namely his quote from Henry VIII in which Jay uses Lord Chancellor Cardinal Thomas Wolsey’s lament of his misspent life to suggest the tragedy that awaits America if the growing crisis under the Articles of Confederation is not resolved. The Bard makes no other appearances in the remaining eighty essays. Notwithstanding his political talent and sterling character—he was also governor of New York—in an alternate history, one might wonder if Jay’s inability to contribute substantially to the Federalist project was unlucky or serendipitous.
The majority of essays, then, were produced by Hamilton, who authored about two-thirds of the essays, with the remaining third coming from Madison’s pen. Impressive is the consistency of all the essays. Both Martin Diamond and Wilmore Kendall have argued that time spent trying to distinguish a Madison-Publius from a Hamilton-Publius is wasted effort. It is true that significant differences about federalism emerged within a few decades as Madison and Jefferson led the Democrat-Republican Party and Hamilton the Federalist Party, but those later differences are difficult to discern in the Federalist Papers; for example, Essays #41–46, written by Madison, are an ardent defense of the constitutional balance of power between the national and state governments.
Yet to say that the Federalist essays are remarkable does not guarantee they are relevant. After all, the country is currently enduring an episode in American politics in which the very ideas and personalities of the American Founding are attacked even if those attacks proceed from ignorance more often than not. Are the Federalist essays up to the challenge? Since a comprehensive discussion of the abiding significance of the Federalist Papers would exceed the scope of the project at hand, their defense here is limited to 1) Constitutional interpretation; 2) the independence of the judiciary; 3) considerations of human nature; 4) the difficult problem of slavery; and, 5) compromise as a means of political survival.
In July 2017, the Washington Post reported that President Trump was exploring his ability to pardon, among others, himself. In response, constitutional scholars were quick to dust off Federalist #69, #70, and #74, even if, in the long run, such consultation was not needed.
More broadly, the authority of the Federalist Papers is cited far more than any other source in Supreme Court jurisprudence and those references have increased in recent decades. Chief Justice John Marshall asserted in Cohens v. Virginia (1821) that “it is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth.”
According to one study, the particular Federalist essays referenced by the Supreme Court, from most to least, are #42 (state v. national power), #78 (the Judiciary), #81 (the Judiciary), #51 (Separation of Powers), #32 (state powers of taxation), #48 (Separation of Powers), #80 (the Judiciary), and #44 (restrictions on state power in favor of national power). The Federalist Papers, moreover, appear in a number of landmark opinions, including Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), U.S. Term Limits v. Thornton (1995), and United States v. Lopez (1995).
Invocation, however, of particular essays may not be dispositive. Although the essays are quoted 35 times in Printz v. U.S. (1997), which dealt with questions of federalism in the context of background checks for gun purchases, citations to the Federalist Papers are made both by the majority decision (Scalia) and the dissenting opinion (Stevens). This suggests the complexity and multi-layered quality of jurisprudence itself. Publius anticipates the “liquidation” of the meaning of the Constitution over time. He asserts, “Time only can mature and perfect so compound a system, liquidate the meaning of all the parts, and adjust them to each other in a harmonious and consistent WHOLE.” (emphasis added, #82)
Reading the Federalist Papers is not easy; it was not so even in their day. Federalist Alexander Contee Hanson, who would later serve as both a Representative and later a Senator from the State of Maryland to the U.S. Congress, could have been speaking for many political science students today when he noted, “It is an ingenious, elaborate, and in some places, sophistical defence of the constitution. … Altho written in a correct, smooth stile it is from its prolixity, tiresome.”
Aside from working through the elegant if dense prose, it is essential to follow a certain rubric to properly understand the essays. Elements of this rubric include identifying the objection to the Philadelphia Constitution to which a particular essay responds and the way in which Publius organizes his response. This is not always self-evident: Essays #9 and #10, noted for their discussion of “factions,” are written to meet the complaint that the new Constitution attempts to govern a country too geographically large; the intricate discussion of factions is incidental to a refutation of that primary objection. Also important is discovering the organization of the essays. The essays on the executive (#67–77) deal first with Anti-Federalist misrepresentations of the presidency (#67), then, with a discussion of the Electoral College (#68), and then, with comparisons of the presidency with the executive rule in New York and Great Britain. Beginning in Essay #70, Publius hits his stride with extended attention to the elements necessary for a constitutionally competent (“energetic”) president.
Publius’ call for judicial independence, as one of his features of the “new science of politics,” that he announces in Federalist #9, cries for our attention in the twenty-first century. It is perhaps the greatest and most consistent challenge to democratic order. In recent years, defensibly or not, the independence of the judiciary has been challenged in Venezuela, Bolivia, Hungary, Poland, Spain, Israel, and now, in the United States. As if taking a cue from today’s headlines, Publius explains in #78 that although the Judiciary has already appeared in the series of essays on the Senate (#62–66) and the President (#67–77), more needs to be said, because the Supreme Court is vulnerable in a way that the two political branches are not. Publius, moreover, admits that if he had to choose between an emasculated judiciary or one that overreaches, he would choose the latter.
There are several possible strategies that may be employed to weaken a Supreme Court (or Constitutional Court), but the reduction of tenure in office is the most frequent. Accordingly, the primary protection of the judicial branch is life tenure, predicated only on the criteria of “good behavior—even if a government is not democratic.” Publius writes,
The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is 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. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. (#78)
Publius then quotes the esteemed Baron de Montesquieu who asserts that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” In the following essay, Publius notes that, after permanence in office, the second safeguard to the independence of the judiciary is a barrier against a reduction in their salary while the justices serve. Publius writes, “Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. For that reason the Constitution stipulates that the judges of the United States receive for their services a compensation, which shall not be diminished during their continuance in office.”
The Complexity of Human Nature
The Federalist Papers (and hence the U.S. Constitution), rest upon a cautious if not cynical view of human nature. Publius warns that because a variety of unsavory motives on the part of those in the ratification debate, even a sensible discussion of the proposed constitution is difficult. In the very first essay, Publius expects that objections to the Constitution will not only involve those whose errors proceed from ignorance and poor judgment, but it will also flush out those motivated by “ambition, avarice, and personal animosity.” Accordingly, Publius anticipates that “a torrent of angry and malignant passions will be let loose in the fight over the newly approved but not yet ratified Constitution.”
In Essay #10, Publius observes the tension between man’s rationality and passion, and the extent to which the latter compromises the former:
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 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.
Thus, people have a propensity not only to act from self-interest but also to associate with others forming like-minded groups that regard other groups with “mutual animosities.” One of the implications of Essays #9 and #10 is that people may behave worse when they are in a group. Groups may bring out the worst in citizens who, when alone or with a friend or two—behave more moderately than they would otherwise. One of the most surprising passages in the Federalist Papers applies this concern to the House of Representatives.
In Essay #55, Publius meets the objection that the House will be too small by warning that a larger group will become unruly. He depicts a kind of “tipping point” after which the advantages of the smaller group are lost in a larger rabble.
The truth is, that in all cases, a certain number at least seems to be necessary to secure the benefits of free consultation and discussion; and to guard against too easy a combination for improper purposes: as on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason.
He concludes with a startling warning, noting, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” In other words, even if the House of Representatives were composed of individuals of sturdy character and refined intellect, if the numbers are too great, the assembly will degenerate.
But the wary view of human nature found in the Federalist Papers must be balanced with an optimistic view of man’s possibilities. After all, the Constitution expects from the country a considerable degree of self-government, and that presupposes an exercise of individual and civic virtue to meet the challenge. In that same essay, Publius freely admits a measure of human “depravity,” but he also anticipates that “the better angels of our nature,” to use Lincoln’s beautiful phrase, will also be at work:
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 and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. (emphasis added)
He further argues that if there is not sufficient virtue among men for self-government, then the only alternative would be “chains of despotism” to restrain them from “destroying and devouring one another.” In Essay #57, Publius explains that the Constitution itself aims to attract men of wisdom to discern, and virtue to pursue, “the common good of the society.” In addition, the Constitution should provide precautions “for keeping them virtuous.” This he asserts, is the “characteristic policy of republican government.”
Accordingly, Publius’ view of human nature cannot be too gloomy but it must be realistic if he expects the Constitution to succeed. The late Daniel Patrick Moynihan, Democratic Senator from New York, once observed, “I’ve been in hundreds of meetings where the behavior of markets was discussed, but I’ve never been in a meeting where the behavior of individuals was discussed. But such is the first principle of government.”
The Tragedy of Slavery
Broaching the subject of slavery may seem a surprising way to show the relevance of The Federalist. To begin, it is only fair to note how genuinely the principal figures of the Founding opposed slavery—even if they found themselves in a traditionally slave-owning family. Freeing slaves, moreover, was often complicated because freed slaves required financial support from their former owners to undertake their new life. Furthermore, because of country-wide racial prejudice, in the North as well as the South, freedmen might find that emancipation placed them in circumstances more uncertain and hazardous than that of their previous bondage. To be sure, the Constitution of 1787 both protects and enables slavery, although one of those provisions, the deadline for the importation of slaves in Article I, Section 10, was time limited. The topic was disturbing enough for many that the fight over slavery was at the heart of a civil war in which perhaps as many as three-quarters of a million Americans gave their lives; subsequently, many of the regretable constitutional supports for slavery and discrimination were overturned by the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments.
One of the harshest criticisms of the Constitution is that Article I Section 2 counted the slave as only three-fifths of a person in considerations of taxation and representation in the House of Representatives. Compromises, however, are often misunderstood and the one making the compromise may be criticized by those on both sides of the agreement. Such has been the case with the infamous “Three-Fifths Compromise.” This agreement, it is alleged, reduces a black man to three-fifths of a human being—but that is a superficial and erroneous interpretation. First of all, if slaves had been counted as equivalent to non-slaves, because of their numbers, the southern states would have had greater representation in the House of Representatives, and accordingly, the South would have had more political power. Even counting slaves three-fifths gave the slave-owning states disproportionate political weight, but it did not meet the South’s aspirations, namely, full representation for enslaved black men.
Federalist #54 explains that the compromise forced slave owners to recognize that slaves were not just property but human beings as well. If slave-owning states wanted slaves to count toward representation in Congress, they couldn’t be merely property because no other property is calculated into the number of representatives the state might have. Representation in Congress is not determined by horses or wagons, only by human beings. Publius even twists the knife by using language that puts slavery in the worst possible light. The slave is “compelled to labor,” he is “vendible,” that he is up for sale from one master to another. He is “degraded from the human rank,” and he is “classified with the irrational animals.” So, given that the Federalist Papers grew in popularity after the Constitution was ratified, certain slave owners may have thought in the years to come that they may have lost as much as they gained in the Three-Fifths Compromise.
Conclusion: Compromise and Political Survival
The Three-Fifths Compromise leads to a more general consideration of political compromise. The art of compromise has been all but lost in the contemporary spirit of “absolutism” which manifests itself in self-righteousness and intolerance. In the first essay, Publius warns of the unavoidable problem of “that intolerant spirit, which has, at all times, characterized political parties. He further warns that “in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword.” He hopes therefore that “inducements to moderation” will prevail.
In Essay #37, Publius warns that the debate over the Constitution might provoke extremism rather than moderation. He writes, “It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation, which is essential to a just estimate of their real tendency to advance, or obstruct, the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it.” Accordingly, Publius anticipates that “a torrent of angry and malignant passions will be let loose” in the fight over the newly approved but not yet ratified Constitution (#1).
More generally, Publius warns in Essay #85 that rigid resistance toward compromise might lure the country into disagreements that would continue ad infinitum. He states what he hopes is obvious: “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. The compacts which are to embrace thirteen distinct states, in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations.
The conclusion is unavoidable: “How can perfection spring from such materials?”
Publius identifies at least two obstacles to compromise: an inordinate zeal for individual rights and free-floating abstract theories that are detached from everyday life. The intolerance he describes will quite often appear behind “the specious mask of zeal for the rights of the people” (#1). He writes, “History will teach us, that [this zeal is] a certain road to the introduction of despotism” and a danger to the “liberties of the republic” (#1). Publius is prescient here, given that the insistence on an apparently unlimited supply of personal rights, constitutional or not, has now become a threat to the liberty of others, including the sacred right to free speech. Although it was inevitable that a Bill of Rights be amended to the Philadelphia Constitution, Publius’ apprehensions in Essay #84 about the difficulties surrounding a Bill of Rights, might bear a further consideration. It is this increasingly rancorous argument over individual “rights” that today brooks no compromise and gives no quarter.
Publius further notes the “chimerical pursuit of a perfect plan” that must be restrained by experience. In a discussion of the frequency of elections of the House of Representatives, Publius recommends, “Let us consult experience, the guide that ought always to be followed whenever it can” (#52). In a similar vein, in Essay #43, Publius warns that “theoretic reasoning … must be qualified by the lessons of practice.”
Essays #1 and #85 stand as bookends to the 83 essays in between. Essay #1 draws the readers’ attention to the historical moment in which the country is engaged, noting that for perhaps the first time in history, a group of people have the opportunity to draw a blueprint of a new government rather than passively watching countries come and go because of “accident and force.” Hamilton may be slightly overstating the case for detached rationality since the country had already enjoyed 150 years of colonial experience, not to mention the country’s English political heritage, but he is correct that the opportunity for a fresh start that stood before America may have been unprecedented.
By the final 85th essay, however, Publius draws wisdom from the Scottish enlightenment philosopher David Hume, who served perhaps better than any of his day as a corrective to hyper-rational hubris. Publius quotes from Hume’s Essays, Volume I, when the latter explains that governments, once initiated, must wait upon “time,” “feelings of inconvenience” [read “trial and error”], and “experience” for their success. He explains, “EXPERIENCE must guide their labour: TIME must bring it to perfection: And the feeling of INCONVENIENCIES must correct the mistakes which they inevitably fall into, in their first trials and experiments.”
In our day, absolutism has spawned social and political turmoil. The dangerous intolerance and hostility on daily display are but symptoms of ugly idealism untampered by common sense and charity. The idea of compromise, as often as not, is condemned as a heretical violation of someone’s conjecture of what life should be—and as Publius explains on many occasions, sometimes the motive is nothing more than a grab for raw power. Those troubled by the present state of American politics might take some comfort in Hume’s wisdom as adopted by Publius. A useful guide during this time is the Federalist Papers, which Thomas Jefferson, an ocean away during the Constitutional Convention and ratification debates, called “the best commentary on the principles of government which ever was written.”