Disrespecting the Federalist Papers
Mr. Meyerson is the author of Liberty's Blueprint: How Madison and Hamilton Wrote The Federalist, Defined the Constitution, and Made Democracy Safe for the World (Basic Books, 2008).
The Federalist Papers occupy a strangely contradictory position in today’s intellectual environment. This collection of essays, written by Alexander Hamilton and James Madison (with a small assist from John Jay) to encourage ratification of the Constitution, is required reading for high school and college students, as well as those arguing before the Supreme Court. The essays have been cited in over 300 Supreme Court decisions, with the number of citations increasing every decade.
Nonetheless, a surprisingly large number of respected scholars contend that the Federalist Papers are a mere historical relic with no contemporary relevance. Many even disparage the quality of the essays and question the role they played in the ratification process. The Federalist (as the essays were originally titled) was, they say, “an almost total failure” when written, and “cannot be relied on for assistance in interpreting and applying legal rules.”
This is a peculiar fate for a work which contains such an array of insights on politicians, human nature, democracy, greed, and power that Theodore Roosevelt praised it as “on the whole the greatest book dealing with applied politics that there has ever been.” Its dismissal by large segments of the legal community is even more astounding when one recalls that Chief Justice John Marshall wrote that The Federalist was “a complete commentary on our Constitution, and is appealed to by all parties.”
The disconnect between the historic respect for The Federalist and its modern detractors can be traced to several different purported problems with the essays. A review of these critiques, however, reveals that The Federalist does indeed belong on the required reading list for all Americans.
The first set of criticisms argues that the essays were not widely read. Historian Elaine Crane found, for example, that only twelve newspapers outside of New York State printed any of the essays, and most of those printed only a few. This analysis, however, misses the way that The Federalist was distributed during the ratification debate. Not only do we know that individual copies of the essays were frequently mailed from one state to another, a focus on newspapers overlooks the fact that it was as a two-volume book that The Federalist had its greatest impact. Copies of the book were sent to many of the delegates to both the New York and Virginia ratifying conventions. We now know that the book was distributed throughout the new nation. One Maryland delegate to that state’s ratifying convention, James McHenry, received his copy directly from the secretary of Congress, Charles Thomson.
Some modern critics of The Federalist assert that even when read, the essays were just P.R. and bad P.R. at that. After all, in New York State, the birthplace of the essays, the opponents of ratification, the Anti-Federalists, outpolled the Federalists by more than two-to-one, electing forty-six delegates to the state’s ratifying convention compared with merely nineteen pro-ratification delegates.
The main accomplishment of the essays, however, was educational: to explain to those considering ratification both the details of how the government would operate under the newly-minted Constitution, as well as the theoretical justification for the decisions made in Philadelphia. The Federalist’s deepest intellectual accomplishment may have been that, in describing how the Constitution would work, it made logical sense of the document as a whole. The Federalist was able to explain to a skeptical nation how this lean political document, created by fifty-five delegates after four months of negotiation and compromise, could be understood as a coherent whole that reflected the principles of the American Revolution.
Virtually every individual destined to become a dominating figure in the development of American law praised The Federalist during the ratification debate. James Kent, who later would become chief judge of New York’s Supreme Court and the author of the classic “Commentaries of American Law,” James Iredell, a future justice of the Supreme Court, and future Chief Justice John Marshall repeatedly extolled the virtues of the essays. As Noah Webster wrote, the essays are “well calculated . . . to impress upon candid minds, just ideas of the nature of republican governments, of the principles of civil liberty, and of the genius and probable operation of the proposed Federal Constitution.”
The final contemporary assault on The Federalist contends that it is useless as both an outdated work and as the product of a reactionary, and in the case of Madison, slave-owning, mindset. These arguments can only be made by those who have not read the essays closely.
While the nature of our government, with its enormous administrative bureaucracy, two dominant political parties, and large corporations financing candidates and lobbying elected officials, has undoubtedly changed since the eighteenth century, what remains unchanged is the overall structure of the government. Power is still separated both horizontally, between the legislative, executive, and judicial branches, and vertically, between the federal and state governments.
More importantly, the danger that those with political power will tend to want more, or, in Madison’s phase, the fact that “power is of an encroaching nature,” remains unchanged. The need, as described in The Federalist, to have each branch of government control the other, that “ambition must be made to counteract ambition,” is especially critical in modern times.
Finally, it is a gross misreading of the essays to treat them as an apology for privilege and discrimination. The moral core of the essays was that simple majority rule was dangerous because it could easily lead to oppression of minorities. This was not, as some have claimed, a desire to protect the wealthy few from the impoverished masses.
In his most famous essay, Federalist 10, Madison declared that the most “common and durable” reason that society will ever be segmented is economic—“the various and unequal distribution of property.” People’s interests vary depending on whether they are debtors or creditors; farmers, manufacturers, and bankers, affected differently by various tax and trade policies, will always be at odds over the proper path for the government to follow.
But in his discussion of the causes of factions, Madison explored many aspects of the human condition apart from the merely financial. In fact, he began his analysis with the simple observation that mortal man is “fallible.” Since fallible people will inevitably make errors, he said, subsequent disagreements as to wisdom and truth are equally inevitable.
Religion was seen a potentially virulent source of majoritarian oppression. It was, in fact, Madison’s own experience fighting for religious freedom in Virginia several years earlier which provided most of the emotional power for his discussion of the abuses that can be inflicted by majority factions. Even when no obvious cause for disagreement exists, Madison concluded, “the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.” He did not give any example of a fanciful distinction in The Federalist, which is unfortunate, because he had been much more forthcoming behind the closed doors of the Constitutional Convention. In a statement that was not to be made public until after his death, Madison observed that, in America, the ability of the white majority to impose the institution of slavery was a prime example of the destructive power of factions. As he said, “We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”
Even without this clear indictment of majoritarian tyranny, The Federalist reminds us of the need to ensure that our Constitutional government protects the politically powerless. In a warning that is as important today as in 1787, as relevant around the world as in the United States, Madison reminds us that, “If a majority be united by a common interest, the rights of the minority will be insecure.”
The Federalist offers numerous other lessons as well. Its analysis of the separation of powers can illuminate our understanding of the battle between the president and Congress over Iraq and the war on terrorism. The dividing line between the federal and state governments that Madison and Hamilton labored to explicate can be seen at the heart of such diverse issues as the Clean Air Act and medical marijuana. We should continue reading The Federalist because each generation must be taught the essays’ central observation that all power can be abused, no matter how virtuous those wielding it may be.
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William J. Stepp - 7/5/2008
It's hyperbolic guff to refer to a modern "assault" on The Federalist.
The author refutes this claim by saying that each decade more SCOTUS decisions cite it.
As for required reading by high school and college students, I doubt one in ten of the former and not many more of the latter actually reads it, or at least reads it through.
As for Madison's alleged brilliance,
consider this sentence from the essay:
In a warning that is as important today as in 1787, as relevant around the world as in the United States, Madison reminds us that, “If a majority be united by a common interest, the rights of the minority will be insecure.”
Most assaults on rights by the government are the product of legislation, which is always passed by a tiny minority of the population, and which often invades the rights of far more people, even if they are a minority of the whole population.
Case in point: FDR's theft of the peoples' gold.
All government-sanctioned invasions of private contracts share this characteristic as well.
The New Deal can be seen essentially as a series of invasions of property and contractual rights of individual people by the State--
which amounts to a very small percentage of the population stealing from a much larger portion of society.
Lysander Spooner rightly referred to legislation as "an absurdity, a usurpation, and a crime."
mark safranski - 6/26/2008
"Nonetheless, a surprisingly large number of respected scholars contend that the Federalist Papers are a mere historical relic with no contemporary relevance."
Mostly because the Federalist Papers contradicts their wish for an authoritarian government with people much like themselves in charge, telling the little people what they can and cannot do with their own lives
Oscar Chamberlain - 6/24/2008
On the whole I agree with your basic point. The Federalist essays do remain valuable both for the insight they provide on their times and on the light they shed on the challenges posed by constitutional rule today.
A minor quibble, though. You state that that their desire to protect monopolies was not "as some have claimed, a desire to protect the wealthy few from the impoverished masses."
It may not have been the only reason but it was certainly one of the reasons. The fear of a propertied minority that the majority would despoil them was an important theme in American political debate from the Revolution to the Jacksonian era. It comes up often in state constitutional debates in the areas of voter qualifications and apportionment. The influence of Federalist writings are clear in this.
I would not claim that this is the only reason that Federalists sought to protect minorities. Many in truth did see themselves as protecting many minorities, including themselves.