THE FEDERALIST AS ROAD-MAP FOR CONSTITUTIONALISM

R. B. Bernstein,
Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998),
and Adjunct Professor, New York Law School

Americans have shaped their lives through law, and for more than two hundred years the Constitution has been the core of the nation's law. We make many demands on the Constitution: it sets forth the structure of our government, allocates powers and duties among our public institutions and officials, and defines our rights and responsibilities. Just as important, the Constitution declares the nation's central principles -- the goals for which we came together to create this nation; the purposes of the document's grants of power and limits on power; and the kinds of public and private lives that we want to foster under its protection.

Constitutional interpretation is a core element of constitutional government. That ongoing process takes place not just within the formal confines of the United States Supreme Court, but in the world of constitutional discourse -- the shared conversation about the Constitution that evolves among the various components of American society. A key moment in that shared discourse was the argument over whether to adopt or reject the Constitution (1787-1788). And perhaps the single greatest and most important product of that episode of our constitutional discourse is The Federalist. The essays of Publius -- Alexander Hamilton, James Madison, and John Jay -- focus our attention not just on the making and interpretation of our Constitution, but on the enduring challenges of constitution-making and constitutional government. As such, they have enduring relevance and interest far beyond the scavenger-hunt for original intent.

There are six features of special note in reading The Federalist. The first three have to do with the rhetorical purposes and goals of the essays, the last three have to do with their substantive purposes and goals.

RHETORICAL:

First, its authors take the high road and the low road simultaneously. For example, in The Federalist No. 1, Alexander Hamilton set up a generous and fair-minded standard of argument for those who would take part in the debate on the Constitution. At the same time, however, he charged that the Constitution's opponents, whom we now know as the Anti-Federalists, were aiming to split up the Union.. James Madison arguably pursued the same high-road/low-road tactic in The Federalist No. 37 -- he presented a careful analysis of the difficulties the Convention faced, and at the same time he did not disclose his part in framing the Constitution but rather posed as an anonymous citizen of New York. One reason for that seeming detour down the "low road" is the eighteenth-century custom of using pen-names and constructed rhetorical identities to emphasize the reader's need to focus on the arguments being made rather than on the identity of those making the arguments. Moreover, as noted earlier, the use of a pen-name like Publius conveys an added layer of meaning and an added polemical message beyond that explicitly set forth in the essays' text.

Second, the writers of The Federalist not only function comfortably in the two realms of political theory and political practice -- they deliberately and explicitly link the two, time and time again. Hamilton, Jay, and Madison are not academics burbling at one another around a seminar table. They are tough-minded, gut-punching practical politicians -- and they know it. At the same time, they are sophisticated political and constitutional theorists -- in fact, they see each role (politician and theorist) as a valuable buttress for the other. Theoretical sophistication helps to justify something that otherwise would seem merely pragmatic and for a given time and place; pragmatic realism helps to justify something that otherwise would seem to be the fugitive production of a political theorist building dream-castles in the air. In particular, Hamilton and Madison treasured aspirations to be the Newton of government, to define enduring principles of human nature, society, politics, and government that would match the achievement of Isaac Newton in physics -- and that similarly would win them enduring fame resembling that won by Newton.

Third, we should note the tone of the argument set by Hamilton, Jay, and Madison. As we have already seen, The Federalist No. 1 took the high road and thus set the tone for the rest of the series of essays. Indeed, we could argue that Hamilton, Jay, and Madison designed their "high-road" approach to shore up the political confidence and self-esteem of those who read Publius -- and thus to enable those readers, and the delegates they elected to ratifying conventions, to confront and respond to the challenge of political founding, to reject the conventional wisdom of the Atlantic civilization about such questions as what forms of government are best, the need to match the size of the polity to the form of government adopted for that polity, national versus federal government, separation of powers, checks and balances, legislative representation, executive unity and power, and judicial authority.

SUBSTANTIVE:

Fourth, the authors of The Federalist set out to establish the need for change: In The Federalist Nos. 1-14, Hamilton, Jay, and Madison expounded on the utility, desirability, and necessity of the Union. As we have noted, this part of the argument contained some deception -- nobody proposed, in public or in private, to dismantle the Union. But the opportunity to elucidate and to extol the value of the Union also established a related set of points point that in turn combined to lay the foundation for the next stage of the argument:

(i) Even those Anti-Federalists who did not want to break up the Union but who opposed the Constitution must have intended, in a legal sense (they knew or should have known), that the main consequence of rejecting the Constitution would be to force matters to such a state of crisis that the Union would fall apart or that a despotic tyranny would emerge to hold the Union together.

(ii) Indeed, "Publius" insisted, retaining the Articles is suicidal, for the Articles are too weak a form of government to preserve the Union or the constitutional liberty that Union does so much to guarantee. The Federalist Nos. 15-22 present a withering indictment of the Articles with respect to two contexts -- (a) the immediate recent history of the Confederation and (b) the histories of earlier confederations in the ancient and modern world. In particular, The Federalist No. 15 is the single harshest indictment of the Articles ever penned. Hamilton used that essay to pillory the Confederation for its failings at home and abroad, and focused his attention on what he deemed the Confederation's greatest weaknesses -- its lack of power to operate on individuals, and its insufficiency of power over the states.

Fifth, the authors of The Federalist then proposed to establish the need for energetic government. The Federalist Nos. 23-36 made the case for adopting a government at least as energetic as that embodied in the proposed Constitution. We tend to forget that constitutionalism signifies more than a political theory of limitations on the powers of government. That's what modern political scientists tend to assume, but they are very, very wrong. Consider this definition of constitutionalism, by the eminent historian Don E. Fehrenbacher in his 1989 monograph Constitutions and Constitutionalism in the Slaveholding South:

By "constitutionalism," I mean a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law. For Americans, distinctively, the word "constitution" has come to mean a single document embodying the sovereign will of the people -- a document that established or reorganized a government, prescribing its structure and endowing it with power, while at the same time restricting that power in the interest of personal liberty.

Sixth, the authors of The Federalist then established the legitimacy, plausibility, and efficacy of the proposed Constitution: The balance of The Federalist is devoted to this objective; the following list of essays linked to subjects provides a road-map for the second half of the book (which, it should be noted, originally appeared as the second of two volumes):

37-38	the challenge of constitution-making
39-40	the legitimacy of the Constitution
41-44	general observations on and justifications of the Union's powers
45-46	the Constitution does not threaten the states' legitimate powers
47-51	how separation of powers and checks and balances safeguard the people and the states from federal abuses of power
52-61	specific institutions -- the House of Representatives
62-67	specific institutions -- the Senate
68-77	specific institutions -- the Presidency
78-83	specific institutions -- the judiciary, especially the Supreme Court
84	explaining the omission of a bill of rights
85	conclusion

In these numbers, Hamilton and Madison displayed their finest creativity as political thinkers and constitution-makers. I focus for the balance of this essay on three pairs of essays from The Federalist:

A. The large, compound republic:

The Federalist Nos. 10 and 51 present the arguments that command the closest attention from political theorists in our time. In The Federalist No. 10, Madison analyzed the problem of factionalism, the single most frequently cited problem faced by republican governments. The point I emphasize with you here is that this argument by Madison does not, cannot, and was not supposed to stand on its own. Rather, Madison's analysis of the extended republic as a safeguard against factionalism was but one fail-safe device in the Constitution that he identified and explained. The extended republic does not guard against problems arising within the network of federal constitutional institutions, nor against problems arising within the compound federal system of national and state governments. That is the point of The Federalist No. 51.

B. Creating the compound republic:

The Federalist Nos. 37 and 39 establish, first, the difficulties facing would-be constitution-makers and, second, the framers' success in meeting that challenge -- specifically, their creation of a system of dual levels of government sharing sovereignty as assigned by the people of the United States, the ultimate sovereign. As Madison declared in The Federalist No. 39, the Constitution "is in strictness neither a national nor a federal constitution; but a composition of both." Here Madison pursued a classic lawyering strategy -- establishing that "national" and "federal" government are not opposite sides of a coin but rather ends of a spectrum, and that locating oneself somewhere in the middle of the spectrum is better than either pole. National versus federal is a false choice. By his brilliant demonstration of this point, coupled with an imaginative and plausible reading of the Constitution, Madison undermined one of the strongest Anti-Federal points against the proposed Constitution. Clinging to the traditional either/or view of national/federal, Anti-Federalists insisted that a national government for a large nation could not continue a free government. If we were to maintain freedom, we could not risk the Constitution, which would create that dangerous national government. Only preserving a federal government -- that limned in the Articles of Confederation -- would preserve American freedom.

C. Justifying new institutions:

The Federalist Nos. 70 and 78 are the core papers of Alexander Hamilton's arguments for national executive and judicial institutions in the new constitutional system. The Articles had authorized only a one-house Confederation Congress; congressional committees and a trio of quasi-legitimate "departments" were all the executive the Confederation had, and congressional committees for interstate disputes (under Article 9) and a quasi-legitimate Court of Appeals in Cases of Capture were all the judiciary the Confederation had.

Americans in this period distrusted executive and judicial power -- both because of particular abuses by English kings and royal governors and judges, and because of more general (though historically-grounded) fears of tyranny flowing from past executive and judicial abuses. That's an all-too-brief summary of the conventional wisdom that Hamilton had to demolish.

The Federalist No. 70 took on the Anti-Federalists' central challenge to the Presidency -- that a one-person chief executive would be the "foetus of monarchy." Hamilton began in The Federalist No. 69 by pointing out that executive power is necessary, because executive functions are necessary to any government and necessary functions imply necessary powers to carry them out. By stressing the need for executive power, he set up a balanced analysis of executive power.

Then, continuing in No. 70 what he had begun in No. 69, Hamilton set up a spectrum for comparison:

BAD British king

President Governor of NY GOOD

Further, if you do not want a single executive, you have but two choices -- a plural executive and a single executive who must act with a council. But a plural executive does not work. And a single executive with a council either resembles an ineffective plural executive or is impossible to hold to account because plurality of that sort shields the executive from responsibility for its actions. In this argument, Hamilton again combined theory and practice, political principle and political reality -- for he drew his structures on executives shielded by their councils from responsibility from the contentious New York politics of the 1780s, noting the ways in which the New York constitution's councils of revision and appointment shielded their members (and Governor George Clinton in particular) from responsibility and accountability.

(ii) Judicial power and judicial review:

The Federalist No. 78 took on American fears of a new, untried federal judiciary. Article III of the Constitution is vague on the structure of the federal courts -- deliberately so, for two reasons: First, most state constitutions left the structure and powers of their judiciaries to statutes enacted by legislatures as ordinary laws. Second, the Federal Convention, unable to agree and too tired to force the matter to a conclusion, decided to leave the question to the first Congress to meet under the Constitution. Hamilton devoted The Federalist Nos. 78-83 to reassuring Americans that federal courts would not run amok. He had to show that federal courts would not have unlimited power (lest they be rejected as dangerous) but that they would play a vital role in constitutional government (lest they be spurned as unnecessary). He anchored the judiciary in the Constitution, limiting their power by defining it as a text-bound interpretative power -- that is, they could only interpret the Constitution and laws of the United States -- and thus recognized that the judiciary had the important power and responsibility to interpret the Constitution.

Hamilton implicitly defined and distinguished two categories of judicial review -- coequal judicial review (or federal/federal judicial review) and supervisory judicial review (or federal/state judicial review, which he discussed in The Federalist Nos. 80-82). Supervisory judicial review is easier to defend than coequal judicial review, because it has a textual basis in the Constitution -- the supremacy clause in Article VI. The challenge Hamilton faced was to justify coequal review. In framing his argument for this power in The Federalist No. 78, Hamilton stressed the difference between ordinary laws (or ordinary government actions having the force of law) and fundamental law (the Constitution), made by the People of the United States in their exercise of the constituent power (the power to constitute a government). Fundamental law must prevail over ordinary laws or government actions -- just as, in the law of agency, the actions of the principal must prevail over those of the agent taken in the name of the principal. Actions by the agent that contravene the actions of the principal are outside the agent's authority.

* * * *

Whenever we read The Federalist, we must always keep in mind that it operates on several levels of thought and argument simultaneously. In their essays as "Publius," Hamilton, Jay, and Madison established an extraordinary standard for constitutional argument -- one that has stood for more than two centuries.