by Ray Raphael
There is a simple remedy for this interpretative malady: we must take pains to date and contextualize historically every Madison quotation. A state can “interpose” in the execution of a federal law and declare it “no further valid”—yes, Madison did write those words in 1798, when the political party he opposed tried to outlaw dissent. Federal powers were “few and defined”—he made that forthright statement when trying to sell the Constitution, with its greatly enhanced federal powers, to a wary public in 1788. “As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt.”—yes, these are Madison’s own words, uttered in defense of nationalizing the militia in 1787, the critical year when our government was being formed. If we wish to discover what one of fifty-five framers, James Madison, thought when he and his colleagues wrote the Constitution, this quotation trumps the others.
6
THE FEDERALIST PAPERS
Myth: The Federalist Papers tell us what the Constitution really means.
Educate yourself on the Constitution and the Federalist Papers (which illustrate the original intent of the Founders in drafting the Constitution).
—Save Our Country Now website1
In deciding these cases, which I have found closer than I had anticipated, it is The Federalist that finally determines my position.
—Supreme Court Justice David Souter, dissenting opinion in Printz v. the United States (1997)2
Kernel of Truth
During the ratification debates, Alexander Hamilton, James Madison, and John Jay penned eighty-five essays under the single pseudonym “Publius,” a founder of the Roman Republic. Although authorship for several of these has been disputed, most scholars now agree that Hamilton wrote at least fifty, Madison most of the rest, and Jay only five. In Hamilton’s home state of New York, opponents of the proposed Constitution, led by Governor George Clinton, held power, and critics were continually pressing their arguments in New York City’s newspapers. Joining the fray as Publius, Hamilton wrote an essay addressed, “To the People of the State of New York,” first published in the Independent Journal on October 27, 1787, under the heading “The Federalist.” In this targeted attempt to change public opinion in New York, Publius promised to give readers a comprehensive explanation and defense of the new federal Constitution, which he compared “to your own State constitution.”3
To share the writing effort, Hamilton invited John Jay, Gouverneur Morris, and William Duer to write other letters under Publius’s name. Morris declined and Jay fell ill after contributing four letters. Hamilton judged Duer’s efforts not up to the standard he was trying to set, and he next turned to James Madison, who was in New York at the time representing Virginia in the Confederation Congress. Because Congress rarely met for lack of a quorum, Madison agreed to take part. Like the New Yorkers Hamilton and Jay, Madison addressed his letters “To the People of the State of New York.”4
Publius’s essays, first appearing in newspapers but later published in two bound volumes titled The Federalist, treat the Constitution as a multifaceted but cohesive whole, a logically consistent implementation of republican theory. Initially, the essays circulated among supporters of the Constitution and helped them refine their arguments. Once the ratification controversy ended, The Federalist had a significant impact on subsequent American jurisprudence and political philosophy, continuing to this day. Commonly viewed as an expansion of the ideas expressed in the Constitution and the most thorough contemporaneous presentation of its philosophical underpinnings, The Federalist is regularly assigned to college students; studied by legal and constitutional scholars, historians, and political scientists; and cited frequently in the opinions of Supreme Court justices. The Federalist has become the Constitution’s Talmud, an explanatory adjunct to scripture.
But …
Publius’s remarkable essays were effective arguments, not disinterested and authoritative commentaries. These are very different genres, and right from the start, Hamilton made it clear which he intended. In The Federalist No. 1, Publius announced without apology that he would offer “arguments” to convince readers that “the safest course for your liberty, your dignity, and your happiness” was to adopt the new plan of government. “Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it,” he wrote. “I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded.” Hamilton promised he would “not disgrace the cause of truth,” but his tone was certainly combative. Many of the Constitution’s opponents, he charged, were driven by “perverted ambition,” hoping either “to aggrandize themselves by the confusions of their country” or to “divide the empire into several partial confederacies.”5
James Madison also conceded motive, although in friendlier terms. “The ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it,” he wrote in The Federalist No. 37, introducing a series of twenty-two consecutive essays under his authorship. Madison argued that he could not explain or defend the Constitution “without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects.” Madison’s “survey” highlighted what he described as the Constitution’s balance between federal and state authority, although he himself had pushed for a much stronger national government at the Federal Convention (see chapter 5).
In its historical context, The Federalist was a political document—certainly an impressive one, but no more “authoritative” than other attempts by the Constitution’s supporters and opponents to persuade contemporaries to vote for or against the Constitution. In pamphlets and newspapers and oral debates, supporters and opponents had at it for the better part of a year. Though the eighty-five Federalist essays were part of this grand debate, they were scarcely the whole of it. The State Historical Society of Wisconsin has collected and reproduced these arguments in twenty-two hefty volumes and multiple microform supplements entitled The Documentary History of the Ratification of the Constitution. As five of the original thirteen states are not yet covered, editors project six more volumes on ratification and still more on the framing and adoption of the Bill of Rights. The Federalist essays fill less than one of these volumes.6
Hamilton, Madison, and Jay faced a daunting task. On the one hand, they needed to convince a wary public of the need to create a federal government with “supreme” authority over the states, and they had to gain acceptance for several controversial provisions: a standing army, Congress’s power to levy direct taxes, and trusting all executive authority to one man, the president. On the other hand, they could not scare people off by painting the new powers of the federal government in stark colors. They had to push both hard and gently, and to understand The Federalist we must view its arguments in this light.
This is not the way The Federalist is treated in our national narrative. Instead, despite its conflicting tasks and sometimes contradictory messages, we accept it at face value and enshrine it as a quasi-official founding document. This authority is not warranted. The Federalist offers one possible reading of the Constitution offered by exceedingly intelligent writers pushing for ratification, but this is not in some mystical sense the certifiably authoritative reading.
The Full Story
Founding-era Americans knew nothing of a work called The Federalist Papers. In the winter and spring of 1787–88, as the proposed Constitution was being debated, citizens in New York City, and a few elsewhere, might be found reading newspaper articles under the heading “The Federalist.” Mathew Carey’s magazine The American Museum published a few of the early essays, and a select group of readers had access to the two bound volumes, the first appearing in March 1788 and the second late in
May. The initial printing of this now-famous work was only 500 copies, and “several hundred” of these were still unsold in the fall of 1788, after the Constitution had been ratified. Nationally, the readership was exceedingly small.7
Eleven years later, unsold books from the first printing were placed back on the market, and in 1802 George F. Hopkins republished The Federalist in a new edition, this time naming the authors. After that, once or twice a decade, The Federalist was repackaged for a new audience.
The Federalist did not become The Federalist Papers until the mid-twentieth century. In 1944, the noted scholar Douglass Adair wrote an article entitled, “The Authorship of the Disputed Federalist Papers.” He did not call the entire work The Federalist Papers; rather, he used “Federalist” to denote which “papers” he was discussing. Within the text of the article Adair, like all other scholars at the time and most scholars today, referred only to The Federalist.8
Four years later, perhaps borrowing from the title of Adair’s article, the newly established Great Books Foundation, in “Session 16” of its “First Year Course,” featured eighteen of the eighty-five “Federalist Papers,” followed by the text of the Constitution. (Session 1 included the Declaration of Independence and selections from the Old Testament; Sessions 17 and 18 concluded the course with Adam Smith’s Wealth of Nations and Karl Marx’s Communist Manifesto.) The foundation’s rebranding was tentative. The title head on each page remained “The Federalist,” and each essay was introduced by the name and date of the newspaper in which it first appeared, seeming to justify the word “papers.”
In 1961 the New American Library, under its Mentor imprint, picked up on the Great Books Foundation’s title and ran with it in its new edition, offering neither explanation nor apology. The title head on its pages said “The Federalist Papers,” as did its cover and title page. “Good reading for the millions” was Mentor’s slogan, but the editors likely felt that “the millions” might have some trouble with eighty-five ponderous essays written for a very different audience. The original, obscure title only compounded that problem. Was “The Federalist” a person? a political party? a document? a philosophy? The reifying, self-reflexive new title, The Federalist Papers, provided clarity and gave the work a physical stamp.9
The Mentor edition of The Federalist Papers circulated widely, and the name swiftly took hold. To this day, Publius’s essays bear the label bequeathed to them by mid-twentieth-century commercial publishers. Try asking a seemingly informed American citizen what The Federalist refers to and you will most likely get a blank stare; The Federalist Papers, on the other hand, might induce a response—a vague memory of a high school civics class, a reading assignment in college, or possibly a reasonable description of Publius’s essays. Even Justice Clarence Thomas, the Supreme Court’s ardent originalist who insists on sticking to the historical record in all instances (see chapter 8), refers casually to Publius’s essays by a name the authors never knew.10
The subtitle as well as the title has changed over time. Here is the title page for volume 1 of the original collection, published by John and Archibald M’Lean of New York in March 1788:
THE
FEDERALIST:
A COLLECTION
OF
ESSAYS,
WRITTEN IN FAVOUR OF
THE NEW CONSTITUTION,
AS AGREED UPON BY THE FEDERAL CONVENTION, SEPTEMBER 17, 178711
In 1802, Hopkins’s revised edition condensed the descriptive but bulky original into a neat and tidy version that eliminated any suggestion of argumentation:
THE
FEDERALIST:
ON THE NEW CONSTITUTION
BY PUBLIUS.
Subsequent editions over the next six decades adopted that simplified version, but in 1863 Henry B. Dawson opted to return to the original. A year later John C. Hamilton, the primary author’s son, plucked the document from its historical context to sound an entirely different note:
THE
FEDERALIST:
A COMMENTARY
ON THE
CONSTITUTION OF THE UNITED STATES.
A Collection of Essays,
BY
ALEXANDER HAMILTON,
JAY AND MADISON
Without changing a word of the text, Hamilton’s son managed to editorialize. Most obviously, he promoted his father over the other authors, but he also lifted The Federalist to higher ground. Essays the authors had written “in favour of” the Constitution were now abstracted observations, with no admission of bias. The neutralizing word “commentary,” which does not reveal any particular slant, was repeated in later editions—if not on the title page, nearly always in the introduction. In his new presentation, Publius was becoming depoliticized.12
Gone as well, in many editions, was the local attribution. In newspapers, where the essays first appeared, each article had opened with the salutation, “To the People of the State of New York,” thereby revealing Publius’s main focus, ratification in New York. Whereas some editors have chosen to reprint the essays exactly the way they appeared in the original newspapers, others have not.13
The general makeover of Publius gave The Federalist a more abstract tone, seemingly devoid of political partisanship and with no restrictive setting or milieu. Clinton Rossiter, in his introduction to the New American Library’s Federalist Papers, waxed poetic. “With sudden bursts of brilliance,” he exclaimed, Publius supplied “an exposition of certain enduring truths that provide an understanding of both the dangers and delights of free government.” Because these “enduring truths” spoke specifically to the plan of government proposed by the Federal Convention, they could be viewed as “a uniquely authoritative commentary on the Constitution.” The Federalist, for Rossiter, served double duty, both as a treatise on government and an indispensable aid to deciphering the Constitution. “A particular interpretation of some clause in that document can be given a special flavor of authenticity by a quotation from Publius,” he concluded.14
Rossiter, a careful scholar, kept Publius securely rooted in political history, even as the author ascended to that higher plane. “Promises, threats, bargains, and face-to-face debates, not eloquent words” determined the outcomes in key states, he noted. Most casual readers, however, lured by the notion of “enduring truths,” have allowed Publius to shed completely his political skin. Thus liberated, Publius has transformed all the framers, by proxy, from thinking politicians into political thinkers. In this popular view, the Constitution is a carefully crafted but ultimately pragmatic set of rules, and accordingly sparse, dry, and mechanical. The Federalist, by contrast, is full, rich, and philosophical, a perfectly tuned theoretical engine that powers the Constitution. The two documents are intimately related, or so the claim goes, and because they are, The Federalist, like the Constitution itself, is sacrosanct.15
Some authors, reading history backwards, take their praise one step further. Because Publius explains the Constitution so well, they say, it must have had a significant effect on events at the time. “The Federalist is relevant to modern readers who wish to understand the Constitution” because “it performed a vitally important role in the ratification debates,” writes Michael Meyerson in Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World. For this to be true, Publius’s writings must have either influenced voters who elected delegates to the ratification conventions or swayed delegates once they were there. Did they?16
We know that both the newspaper articles and the bound volumes circulated widely among Federalist leaders. Among the many rave reviews was that of George Washington, who wrote a celebratory letter to Hamilton shortly after ten states had ratified the Constitution:
As the perusal of political papers under the signature of Publius has afforded me great satisfaction, I shall certainly consider them as claiming a most distinguished place in my library. I have read every performance which has been printed on one side and th
e other of the great question lately agitated (so far as I have been able to obtain them) and, without an unmeaning compliment, I will say, that I have seen no other so well calculated (in my judgment) to produce conviction on an unbiased Mind, as the Production of your Triumvirate. When the transient circumstances & fugitive performances which attended this crisis shall have disappeared, that Work will merit the notice of posterity; because in it are candidly and ably discussed the principles of freedom and the topics of government, which will be always interesting to mankind so long as they shall be connected in Civil Society.17
But we also know that the Constitution’s opponents mocked “the torrent of misplaced words” that “sprung from the deranged brain of Publius,” and even some Federalists considered the essays too “elaborate” and not “well calculated for the common people.”18
When the first essays appeared in the New York City press, Federalist leaders tried to disseminate them, with mixed success. Madison sent Washington the first twenty-two essays and asked him to send them to a Richmond newspaper. Washington obliged, but Richmond’s Virginia Independent Chronicle reprinted only The Federalist Nos. 1 and 3. That was the pattern. Publius’s first five essays were reprinted in an average of eight papers outside of New York State, but after that out-of-state publication fell off dramatically. After The Federalist No. 16, no essays were printed in more than one paper out of state, and following The Federalist No. 23, the remaining sixty-two essays never made it across New York’s borders at all, except for an excerpt from The Federalist No. 38 in the Freeman’s Oracle, published in Exeter, New Hampshire.19
