Carefully assessing judicial politicization gives us fresh reasons to doubt the attitudinal model.
In Rekindling Constitutional Ambition, his recent post for Law and Liberty, Yuval Levin offered some particularly helpful insights for thinking through our constitutional problems. As Levin points out, friends of the Constitution are currently in a period of uncertainty about what goals they should be aiming for, even apart from the usual confusion over how to achieve their goals. Some friends of the Constitution argue that the election of Donald Trump to the presidency would allow for a revival (such as the writers at the Journal of American Greatness blog), while others (such as the signers of the Originalists against Trump statement) argue that it would undermine obedience to the Constitution as that document was originally intended. Levin’s comments are a helpful step back from those debates about means to consider the debate about the ends constitutionalists should aim to achieve in the long term.
The ends constitutionalists ought to pursue certainly do not include further delegations of power by Congress to executive agencies or the further acceptance by state leaders of federal grants with strings attached. And it really is harmful for officials in the federal government to believe that Congress and the states need to be weakened further than they already are.
A key point Levin makes is that accepting certain assumptions from the Federalist can actually lead to those mistakes. Federalist 51 does claim that “in republican government, the legislature necessarily predominates” and Federalist 17 does claim that “it will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.” Current political science would say that those claims are clearly not true anymore, and might even be harmful to the constitutional structure if acted upon. One could easily add to Levin’s list Hamilton’s expectation in Federalist 78 that the judiciary would be “the least dangerous” branch.
Following Yuval Levin’s lead, I think it might be helpful to also point out assumptions from the Federalist that are still true. Officials in the federal government should know that Hamilton got it right when he argued that their job should be focused on protecting citizens’ rights. Hamilton wrote in Federalist 1 that “the vigor of government is essential to the security of liberty.” In other words: without the safety provided by an energetic government, the right to liberty cannot be enjoyed. Hamilton’s assumption—that safety is necessary for the right to liberty to be exercised—was true then and is true now, although it can be improperly confused with other practical assumptions. One further way to “rekindle constitutional ambition” would be to properly embrace this true assumption made in the Federalist.
It is helpful to distinguish Hamilton’s practical assumption from another assumption made during the Progressive Era, which often misleads government officials today. The assumption I have in mind is: without material wealth, a citizen’s liberty is useless. This practical assumption was stated most clearly in Franklin Roosevelt’s 1944 State of the Union address to Congress (the “Second Bill of Rights” speech), where FDR claimed that “true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’”
Hamilton’s and FDR’s practical assumptions sound similar. However, Hamilton’s assumption that security is necessary for liberty is a more primordial consideration. The basic duty of the United States government for Hamilton was to protect a limited set of the people’s negative rights (rights to not be interfered with). Roosevelt’s belief that government ought to provide goods to help people enjoy their rights would have to be a consideration that would come after Hamilton’s task for government is achieved, and may or may not be feasible. The type of assumption involved in both cases—that necessities at times determine what rights the people can enjoy—makes these statements similar. However, it is important to note that FDR’s assumption makes for a much harder (and perhaps impossible) goal for government to achieve, based on a questionable moral necessity.
Confusion about the Hamilton’s assumption can cause federal officials to see it as their job to fix every aspect of citizens’ lives. Hamilton’s actual assumption, that the security of liberty requires energetic government, ought to be the main focus of federal officials. The military and national security therefore ought to be of chief concern to the federal government, as should security from legal encroachments into citizens’ rights by the administrative state.
An awareness of which assumptions from the Federalist are false and which are true (and always will be true) can also help the friends of the Constitution to decide what the greatest threat to our security in liberty is in this election—a legislating judiciary, a legislating executive, a consolidation of the states, a threat from a foreign military, or some other threat.
 For other contrasts between Hamilton’s view of the role of government and Progressive views of the role of government, see Carson Holloway’s “Alexander Hamilton and American Progressivism.”