Casting New Light on the Federalist Papers

The Federalist Papers has always been considered one of the enduring classics of American political theory.

Until a few years ago, it was required reading in many colleges and universities and even a few public high schools. Even in an age of dumbed down college curricula, The Federalist still commands its share of camp followers. Several years ago, for example, a California assemblyman, Keith Ogberg, even managed to push through a new law mandating The Federalist become required reading once again in public high schools.

First published in New York in 1788 to garner support for the proposed U.S. Constitution, The Federalist was the handiwork of three of the finest political minds of late-eighteenth century America: Alexander Hamilton, John Jay and James Madison.

Unlike many turgid political tracts of the time, The Federalist was written in clear, but eloquent, prose in order to appeal to a mass audience.

The authors accomplished what they set out to do. Indeed, from a rhetorical standpoint, they completely outclassed, outgunned and outfoxed their opponents, the so-called anti-federalists. Part of this success arguably could be attributed to their genuinely heartfelt passion: all three, after all, seemed to believe the proposed constitution offered the best, and perhaps only, hope for a lasting union of states.

Still, despite all of the genuinely patriotic feeling reflected throughout the essays, there is an element of chicanery associated with The Federalist. For starters, all three authors wrote under the alias "Publius," and pretended to have only second-hand knowledge of the drafting of the Constitution, even though two of them, Hamilton and Madison, served as delegates to the Constitutional Convention. Madison, in fact, had even kept a detailed journal of the convention's proceedings.

John Taylor of Caroline, one of history's most gifted, but least remembered, political theorists, once observed that if the journal had been published immediately after the convention, it would have changed history entirely by allowing Americans a clear understanding of the Framer's original intentions.

Madison, however, waited decades to publish the text -- a wise decision considering the harm it would have caused his career if people back home had learned of the unabashedly pro-nationalist sentiments he expressed throughout the Constitutional Convention.

Postponing publication of the journal allowed Madison and the other two authors of The Federalist a significant tactical advantage over their opponents. It enabled them to portray the Constitution as an entirely new system of government employing both federalist and nationalist attributes, even though it did nothing of the sort -- as release of Madison's journal proved decades later.

Even if a majority of the delegates had succeeded in replacing the Articles of Confederation with an entirely nationalist system of government, their efforts ultimately would have been futile. Any such constitution based on such a principle would have been resoundingly rejected by the states. Granted, nationalists enjoyed a brief ascendancy during the first three weeks of the convention. A faction of delegates led by Virginia Governor Edmund Randolph, a nationalist, even managed to introduce a series of fifteen resolutions that many scholars believe were ghostwritten by Madison. These resolutions opposed a simple revision of the Articles of Confederation and called instead for a national government.

Introduced on 30 May 1787, by Randolph and seconded by Gouverneur Morris, they held that a "union of states merely federal, will not accomplish the objects proposed by the articles of confederation, namely, common defense, security of liberty, and general welfare." One of these resolutions even proposed granting Congress the power to "negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union or any treaty subsisting under the authority of the Union."

This especially radical measure was opposed even by Morris, an otherwise staunch nationalist, who nevertheless feared that incorporating such a provision in the proposed constitution would squelch any chance of ratification by the state legislatures or by ratifying conventions. As it turned out, the issue of a congressional veto of state laws was raised twice during the convention and resoundingly rejected each time.

Even so, the supporters of the stridently nationalist Randolph (or Virginia) Plan held the upper hand during the first three weeks of the Convention when many of the delegates from the smaller states hadn't yet arrived. However, by June 20, Oliver Ellsworth, a delegate from Connecticut, introduced a resolution stating "that the government of the United States out to consist of a supreme legislative, executive and judicial government."

This resolution, which was approved unanimously by the Convention, represented a significant turning point because it struck out every allusion to "national" that had appeared in the Virginia Plan. By the time the constitution reached its final draft, there was not one clause in the proposed constitution characterizing the general government as "national" in nature, even though a few delegates returned to their states claiming to have drafted an entirely new "national" system.

Nevertheless, Madison's and Hamilton's essays in The Federalist portray the Constitution as possessing dual federal and nationalist attributes, even though Madison's own journal offers substantial evidence to the contrary.

Outlining this dual nature in The Federalist #39, for example, Madison argued that "...the Constitution is to be founded on the assent and-ratification of the people of America," though not "...as individuals composing one entire nation; but as composing the distinct and independent states to which they respectively belong." Madison also asserted that the House of Representatives would reflect the national attributes of the United States, while the Senate, whose members would be appointed by the various state legislatures, would represent the federal nature of the Union.

In its operation, Madison contended, the government would be national, since its powers would extend to the 44 people of America" in their individual capacities.

Indeed, throughout The Federalist, Madison and Hamilton depicted the Union under the Constitution as a something entirely new under the sun: a "compound republic" reflecting both national and federal attributes, rather than a strictly confederative system in which the general government merely functioned as an agent of the states.

What Taylor found most confusing about Federalist 439 is Madison's notion that the Constitution would be founded on the consent of the "people of America," even though the new plan of government required ratification of thirteen separate state conventions.

Taylor marshaled a stunning array of evidence to expose the fatal flaws in Madison's argument. For example, if the Framers had intended to establish a national government, Taylor believed, they would have adopted a provision calling on the states to dissolve themselves or to relinquish their authority so that the people of the states would have been free to form one nation. Of course, nothing of the sort was done. The proposed Constitution, in fact, required the sanction of state legislatures before it could even be submitted to state ratification conventions. Even Madison describes each state ratification convention "as a sovereign body, independent of all others, and only to be bound by its own voluntary act."

Besides, the state ratification conventions were intended to be more than just a convenient means of canvassing the sentiments of the "people of America." Ratifying a new constitution, after all, was serious business. Under the circumstances, Taylor believed, the Framers had every reason to insist that the constitution should be the ratified by "the several states that are parties to it, expressed not by the legislative authority, but by the people (of the states) themselves."

Taylor believed the framers' decision to leave responsibility of amending the Constitution with the states was further evidence of the explicitly federal nature of the document. To phrase it another way, if the Constitution established a strong national government representing the American people in their corporate capacity, why were individual state legislatures empowered to approve constitutional amendments? Taylor asked.

No, Taylor believed, despite all of the deft arguments employed by Madison and the others in The Federalist, the Framers established an exclusively federal government.

Even the legislative body established by the new constitution was to remain a federal body, comprised solely of representatives of the states - a fact clearly reflected in several key phrases:

• "Each state shall have one representative;"
• (Each state) "shall choose a specified number of representatives."
• (Each state) "shall elect representatives in the manner prescribed by its legislature;" . (The representation of each state shall one) "vote in choosing the president."

All of this, Taylor believed, was proof enough that Congress -- even the people's chamber, the House of Representatives - "was a representation from each state, and not of an American nation."