how many federalist essays are there

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

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Course: US history   >   Unit 3

• The Articles of Confederation
• What was the Articles of Confederation?
• Shays's Rebellion
• The Constitutional Convention
• The US Constitution

The Federalist Papers

• The Bill of Rights
• Social consequences of revolutionary ideals
• The presidency of George Washington
• Why was George Washington the first president?
• The presidency of John Adams
• Regional attitudes about slavery, 1754-1800
• Continuity and change in American society, 1754-1800
• Creating a nation
• The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788.
• The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.
• The Federalist Papers is considered one of the most significant American contributions to the field of political philosophy and theory and is still widely considered to be the most authoritative source for determining the original intent of the framers of the US Constitution.

The Articles of Confederation and Constitutional Convention

• In Federalist No. 10 , Madison reflects on how to prevent rule by majority faction and advocates the expansion of the United States into a large, commercial republic.
• In Federalist No. 39 and Federalist 51 , Madison seeks to “lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty,” emphasizing the need for checks and balances through the separation of powers into three branches of the federal government and the division of powers between the federal government and the states. 4 ‍  
• In Federalist No. 84 , Hamilton advances the case against the Bill of Rights, expressing the fear that explicitly enumerated rights could too easily be construed as comprising the only rights to which American citizens were entitled.

What do you think?

• For more on Shays’s Rebellion, see Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002).
• Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles, and Letters During the Struggle over Ratification; Part One, September 1787 – February 1788 (New York: Penguin Books, 1993).
• See Federalist No. 1 .
• See Federalist No. 51 .
• For more, see Michael Meyerson, Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (New York: Basic Books, 2008).

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The Federalist Papers

The Federalist Papers are a series of 85 essays arguing in support of the United States Constitution . Alexander Hamilton , James Madison , and John Jay were the authors behind the pieces, and the three men wrote collectively under the name of Publius .

Seventy-seven of the essays were published as a series in The Independent Journal , The New York Packet , and The Daily Advertiser between October of 1787 and August 1788. They weren't originally known as the "Federalist Papers," but just "The Federalist." The final 8 were added in after.

At the time of publication, the authorship of the articles was a closely guarded secret. It wasn't until Hamilton's death in 1804 that a list crediting him as one of the authors became public. It claimed fully two-thirds of the essays for Hamilton. Many of these would be disputed by Madison later on, who had actually written a few of the articles attributed to Hamilton.

Once the Federal Convention sent the Constitution to the Confederation Congress in 1787, the document became the target of criticism from its opponents. Hamilton, a firm believer in the Constitution, wrote in Federalist No. 1 that the series would "endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention."

Alexander Hamilton was the force behind the project, and was responsible for recruiting James Madison and John Jay to write with him as Publius. Two others were considered, Gouverneur Morris and William Duer . Morris rejected the offer, and Hamilton didn't like Duer's work. Even still, Duer managed to publish three articles in defense of the Constitution under the name Philo-Publius , or "Friend of Publius."

Hamilton chose "Publius" as the pseudonym under which the series would be written, in honor of the great Roman Publius Valerius Publicola . The original Publius is credited with being instrumental in the founding of the Roman Republic. Hamilton thought he would be again with the founding of the American Republic. He turned out to be right.

John Jay was the author of five of the Federalist Papers. He would later serve as Chief Justice of the United States. Jay became ill after only contributed 4 essays, and was only able to write one more before the end of the project, which explains the large gap in time between them.

Jay's Contributions were Federalist: No. 2 , No. 3 , No. 4 , No. 5 , and No. 64 .

James Madison , Hamilton's major collaborator, later President of the United States and "Father of the Constitution." He wrote 29 of the Federalist Papers, although Madison himself, and many others since then, asserted that he had written more. A known error in Hamilton's list is that he incorrectly ascribed No. 54 to John Jay, when in fact Jay wrote No. 64 , has provided some evidence for Madison's suggestion. Nearly all of the statistical studies show that the disputed papers were written by Madison, but as the writers themselves released no complete list, no one will ever know for sure.

Opposition to the Bill of Rights

The Federalist Papers, specifically Federalist No. 84 , are notable for their opposition to what later became the United States Bill of Rights . Hamilton didn't support the addition of a Bill of Rights because he believed that the Constitution wasn't written to limit the people. It listed the powers of the government and left all that remained to the states and the people. Of course, this sentiment wasn't universal, and the United States not only got a Constitution, but a Bill of Rights too.

No. 1: General Introduction Written by: Alexander Hamilton October 27, 1787

No.2: Concerning Dangers from Foreign Force and Influence Written by: John Jay October 31, 1787

No. 3: The Same Subject Continued: Concerning Dangers from Foreign Force and Influence Written by: John Jay November 3, 1787

No. 4: The Same Subject Continued: Concerning Dangers from Foreign Force and Influence Written by: John Jay November 7, 1787

No. 5: The Same Subject Continued: Concerning Dangers from Foreign Force and Influence Written by: John Jay November 10, 1787

No. 6:Concerning Dangers from Dissensions Between the States Written by: Alexander Hamilton November 14, 1787

No. 7 The Same Subject Continued: Concerning Dangers from Dissensions Between the States Written by: Alexander Hamilton November 15, 1787

No. 8: The Consequences of Hostilities Between the States Written by: Alexander Hamilton November 20, 1787

No. 9 The Union as a Safeguard Against Domestic Faction and Insurrection Written by: Alexander Hamilton November 21, 1787

No. 10 The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection Written by: James Madison November 22, 1787

No. 11 The Utility of the Union in Respect to Commercial Relations and a Navy Written by: Alexander Hamilton November 24, 1787

No 12: The Utility of the Union In Respect to Revenue Written by: Alexander Hamilton November 27, 1787

No. 13: Advantage of the Union in Respect to Economy in Government Written by: Alexander Hamilton November 28, 1787

No. 14: Objections to the Proposed Constitution From Extent of Territory Answered Written by: James Madison November 30, 1787

No 15: The Insufficiency of the Present Confederation to Preserve the Union Written by: Alexander Hamilton December 1, 1787

No. 16: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: Alexander Hamilton December 4, 1787

No. 17: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: Alexander Hamilton December 5, 1787

No. 18: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: James Madison December 7, 1787

No. 19: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: James Madison December 8, 1787

No. 20: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: James Madison December 11, 1787

No. 21: Other Defects of the Present Confederation Written by: Alexander Hamilton December 12, 1787

No. 22: The Same Subject Continued: Other Defects of the Present Confederation Written by: Alexander Hamilton December 14, 1787

No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union Written by: Alexander Hamilton December 18, 1787

No. 24: The Powers Necessary to the Common Defense Further Considered Written by: Alexander Hamilton December 19, 1787

No. 25: The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered Written by: Alexander Hamilton December 21, 1787

No. 26: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered Written by: Alexander Hamilton December 22, 1787

No. 27: The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered Written by: Alexander Hamilton December 25, 1787

No. 28: The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered Written by: Alexander Hamilton December 26, 1787

No. 29: Concerning the Militia Written by: Alexander Hamilton January 9, 1788

No. 30: Concerning the General Power of Taxation Written by: Alexander Hamilton December 28, 1787

No. 31: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 1, 1788

No. 32: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 2, 1788

No. 33: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 2, 1788

No. 34: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 5, 1788

No. 35: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 5, 1788

No. 36: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 8, 1788

No. 37: Concerning the Difficulties of the Convention in Devising a Proper Form of Government Written by: Alexander Hamilton January 11, 1788

No. 38: The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed Written by: James Madison January 12, 1788

No. 39: The Conformity of the Plan to Republican Principles Written by: James Madison January 18, 1788

No. 40: The Powers of the Convention to Form a Mixed Government Examined and Sustained Written by: James Madison January 18, 1788

No. 41: General View of the Powers Conferred by the Constitution Written by: James Madison January 19, 1788

No. 42: The Powers Conferred by the Constitution Further Considered Written by: James Madison January 22, 1788

No. 43: The Same Subject Continued: The Powers Conferred by the Constitution Further Considered Written by: James Madison January 23, 1788

No. 44: Restrictions on the Authority of the Several States Written by: James Madison January 25, 1788

No. 45: The Alleged Danger From the Powers of the Union to the State Governments Considered Written by: James Madison January 26, 1788

No. 46: The Influence of the State and Federal Governments Compared Written by: James Madison January 29, 1788

No. 47: The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts Written by: James Madison January 30, 1788

No. 48: These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other Written by: James Madison February 1, 1788

No. 49: Method of Guarding Against the Encroachments of Any One Department of Government Written by: James Madison February 2, 1788

No. 50: Periodic Appeals to the People Considered Written by: James Madison February 5, 1788

No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments Written by: James Madison February 6, 1788

No. 52: The House of Representatives Written by: James Madison February 8, 1788

No. 53: The Same Subject Continued: The House of Representatives Written by: James Madison February 9, 1788

No. 54: The Apportionment of Members Among the States Written by: James Madison February 12, 1788

No. 55: The Total Number of the House of Representatives Written by: James Madison February 13, 1788

No. 56: The Same Subject Continued: The Total Number of the House of Representatives Written by: James Madison February 16, 1788

No. 57: The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Written by: James Madison February 19, 1788

No. 58: Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered Written by: James Madison February 20, 1788

No. 59: Concerning the Power of Congress to Regulate the Election of Members Written by: Alexander Hamilton February 22, 1788

No. 60: The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members Written by: Alexander Hamilton February 23, 1788

No. 61: The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members Written by: Alexander Hamilton February 26, 1788

No. 62: The Senate Written by: James Madison February 27, 1788

No. 63: The Senate Continued Written by: James Madison March 1, 1788

No. 64: The Powers of the Senate Written by: John Jay March 5, 1788

No. 65: The Powers of the Senate Continued Written by: Alexander Hamilton March 7, 1788

No. 66: Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered Written by: Alexander Hamilton March 8, 1788

No. 67: The Executive Department Written by: Alexander Hamilton March 11, 1788

No. 68: The Mode of Electing the President Written by: Alexander Hamilton March 12, 1788

No. 69: The Real Character of the Executive Written by: Alexander Hamilton March 14, 1788

No. 70: The Executive Department Further Considered Written by: Alexander Hamilton March 15, 1788

No. 71: The Duration in Office of the Executive Written by: Alexander Hamilton March 18, 1788

No. 72: The Same Subject Continued, and Re-Eligibility of the Executive Considered Written by: Alexander Hamilton March 19, 1788

No. 73: The Provision For The Support of the Executive, and the Veto Power Written by: Alexander Hamilton March 21, 1788

No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive Written by: Alexander Hamilton March 25, 1788

No. 75: The Treaty Making Power of the Executive Written by: Alexander Hamilton March 26, 1788

No. 76: The Appointing Power of the Executive Written by: Alexander Hamilton April 1, 1788

No. 77: The Appointing Power Continued and Other Powers of the Executive Considered Written by: Alexander Hamilton April 2, 1788

No. 78: The Judiciary Department Written by: Alexander Hamilton June 14, 1788

No. 79: The Judiciary Continued Written by: Alexander Hamilton June 18, 1788

No. 80: The Powers of the Judiciary Written by: Alexander Hamilton June 21, 1788

No. 81: The Judiciary Continued, and the Distribution of the Judicial Authority Written by: Alexander Hamilton June 25, 1788

No. 82: The Judiciary Continued Written by: Alexander Hamilton July 2, 1788

No. 83: The Judiciary Continued in Relation to Trial by Jury Written by: Alexander Hamilton July 5, 1788

No. 84: Certain General and Miscellaneous Objections to the Constitution Considered and Answered Written by: Alexander Hamilton July 16, 1788

No. 85: Concluding Remarks Written by: Alexander Hamilton August 13, 1788

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Federalist Papers

George Washington  was sent draft versions of the first seven essays on November 18, 1787 by James Madison, who revealed to Washington that he was one of the anonymous writers. Washington agreed to secretly transmit the drafts to his in-law David Stuart in Richmond, Virginia so the essays could be more widely published and distributed. Washington explained in a letter to David Humphreys that the ratification of the Constitution would depend heavily "on literary abilities, & the recommendation of it by good pens," and his efforts to proliferate the Federalist Papers reflected this feeling. 1

Washington was skeptical of Constitutional opponents, known as Anti-Federalists, believing that they were either misguided or seeking personal gain. He believed strongly in the goals of the Constitution and saw The Federalist Papers and similar publications as crucial to the process of bolstering support for its ratification. Washington described such publications as "have thrown new lights upon the science of Government, they have given the rights of man a full and fair discussion, and have explained them in so clear and forcible a manner as cannot fail to make a lasting impression upon those who read the best publications of the subject, and particularly the pieces under the signature of Publius." 2

Although Washington made few direct contributions to the text of the new Constitution and never officially joined the Federalist Party, he profoundly supported the philosophy behind the Constitution and was an ardent supporter of its ratification.

The philosophical influence of the Enlightenment factored significantly in the essays, as the writers sought to establish a balance between centralized political power and individual liberty. Although the writers sought to build support for the Constitution, Madison, Hamilton, and Jay did not see their work as a treatise, per se, but rather as an on-going attempt to make sense of a new form of government.

The Federalist Paper s represented only one facet in an on-going debate about what the newly forming government in America should look like and how it would govern. Although it is uncertain precisely how much The Federalist Papers affected the ratification of the Constitution, they were considered by many at the time—and continue to be considered—one of the greatest works of American political philosophy.

Adam Meehan The University of Arizona

Notes: 1. "George Washington to David Humphreys, 10 October 1787," in George Washington, Writings , ed. John Rhodehamel (New York: Library of America, 1997), 657.

2. "George Washington to John Armstrong, 25 April 1788," in George Washington, Writings , ed. John Rhodehamel (New York: Library of America, 1997), 672.

Bibliography: Chernow, Ron. Washington: A Life . New York: Penguin, 2010.

Epstein, David F. The Political Theory of The Federalist . Chicago: University of Chicago Press, 1984.

Furtwangler, Albert. The Authority of Publius: A Reading of the Federalist Papers . Ithaca: Cornell University Press, 1984.

George Washington, Writings , ed. John Rhodehamel. New York: Library of America, 1997.

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The Federalist Papers

The Federalist Papers originated as a series of articles in a New York newspaper in 1787–88. Published anonymously under the pen name of “Publius,” they were written primarily for instrumental political purposes: to promote ratification of the Constitution and defend it against its critics.

Initiated by Alexander Hamilton , the series came to eighty-five articles, the majority by Hamilton himself, twenty-six by James Madison , and five by John Jay. The Federalist was the title under which Hamilton collected the papers for publication as a book.

Despite their polemical origin, the papers are widely viewed as the best work of political philosophy produced in the United States, and as the best expositions of the Constitution to be found amidst all the ratification debates. They are frequently cited for discerning the meaning of the Constitution and the intentions of the founders, although Hamilton’s papers are not always reliable as an exposition of his views: in The Federalist , Hamilton took care to avoid coming out clearly with his views on either the inadequacies of the Constitution or the potentiality for using it dynamically. Instead, he expressed himself indirectly, arguing that the only real danger would arise from the potential weaknesses of the central government under the Constitution , not from its potentialities for greater strength as charged by its opponents. Despite this, The Federalist can be and frequently has been referred to for its exposition of Hamilton’s position on executive authority, judicial review, and other institutional aspects of the Constitution.

The Federalist Papers are also admired abroad—sometimes more than in the United States. Hamilton is held in high esteem abroad: while in America his realist style is received with suspicion of undemocratic intentions, abroad it is taken as a reassurance of solidity, and it is the Jeffersonian idealist style that is received with suspicion of hidden intentions. The Federalist Papers are studied by jurists and legal scholars and cited for writing other countries’ constitutions. In this capacity they have played a significant role in the spread of federal, democratic, and constitutional governments around the world.

• 1 MODERN FEDERATION AS EXPOUNDED BY THE FEDERALIST
• 2 AMBIGUITIES OF COORDINATE FEDERALISM IN THE FEDERALIST
• 3 USE AND ABUSE OF THE FEDERALIST
• 4.1 Ira Straus

MODERN FEDERATION AS EXPOUNDED BY THE FEDERALIST

The Federalist Papers defended a new form of federalism : what it called “federation” as differentiated from “confederation.” There were precursors for this usage; The Federalist Papers solidified it. All subsequent federalism has been influenced by the example of “federation” in the United States; indeed, the success of it in the United States has led to its being known as “modern federation” in contrast to “classical confederation.” In its basic structures and principles, it has served as the model for most subsequent federal unions, as well as for the reform of older confederacies such as Switzerland.

The main distinguishing characteristics of the model of modern federation, elucidated and defended by The Federalist Papers , are as follows:

1. The federal government’s most important figures, the legislative, are elected largely by the individual citizens, rather than being primarily selected by the governments of member states as in confederation.

2. Conversely, federal law applies directly to individuals, through federal courts and agencies, rather than to member states as in confederation.

3. State citizens become also federal citizens, and naturalization criteria are established federally.

4. The federal Constitution and federal laws and treaties are the supreme law of the land, over and above state constitutions and laws.

5. Federal powers are enumerated, along with what came to be called an “Elastic Clause” (the authority to take measures “necessary and proper” for implementing its enumerated powers); the states keep the vast range of “reserved” powers, that is, the unspecified generality of other potential governmental powers. States cannot act where the federal government is assigned exclusive competence, nor where preempted by lawful federal action; they are specifically excluded from independent foreign relations, from maintaining an army or navy, from interfering with money, and from disrupting contracts or imposing tariffs.

6. Federal and state laws operate in parallel or as “coordinate” powers, each applying directly to individual citizens, rather than acting primarily through or with dependence on one another.

This “coordinate” method applies only to the “vertical” division of powers between federal and state governments, not to the “horizontal” or “functional” division of federal powers into executive, legislative, and judicial branches. The latter “separation of powers” is made in such a form as to deliberately keep the three branches mutually dependent on one another, so that no one of them can step forth—excepting the executive in emergencies—as a full-fledged authority on its own. This mutual functional dependence within the federal level is considered an assurance of steadiness of the rule of law and lack of arbitrariness; by contrast, obstructionism was feared if there were to remain a relation of dependence upon a vertically separate level of government. Thus the turn to “coordinate” powers, with federal and state operations proceeding autonomously from one another, or what came to be called “coordinate federalism.” This terminology encapsulated the departure from the old confederalism, in which federal government operations had been heavily dependent on the states.

AMBIGUITIES OF COORDINATE FEDERALISM IN THE FEDERALIST

Despite The Federalist ’s strong preference for coordinate powers, there are important deviations from it. For example, there are “concurrent” or overlapping powers, such as taxation. This, Hamilton says in The Federalist No. 32, necessarily follows from “the division of sovereign power”: each level of government needs it in order to function with “full vigor” on its own (thus allowing the celebratory formulation for American federalism, “strong States and a strong Federal Government”). Coordinate federalism requires, it turns out, some concurrent powers, not just coordinate powers.

In practice, the deviations from the “coordinate” theory go farther still. For the militia, the state governments have the competence to appoint all the officers and to conduct the training most of the time, but the federal government is authorized to regulate the training and discipline, as well as to place the militia when needed under federal command (a provision defended by Hamilton in The Federalist No. 29). For commercial law, the states draw up the detailed codes, but the federal power to regulate interstate commerce opened the door to broad federal interference with state codes in the twentieth century. In these spheres there is state authority, but it is subordinated to federal authority—a situation close to the traditional hierarchical model, not to the matrix model sometimes used for the coordinate ideal.

While the states are reserved the wider range of powers, the federal government is assigned the prime cuts among the powers. Its competences go to what are usually viewed as core areas of sovereignty—foreign relations, military, and currency—as well as to regulation of some state powers when they get too close to high politics or to interstate concerns. It already formally held most of these competences during the Confederation, but now could carry them out independently of state action. The Federalist Papers advertise this as being the main point of the Constitution: not a fearsome matter of extending the powers of the federal government into newfangled realms, but the unobjectionable matter of rendering its already agreed-upon powers effective. This effectiveness is achieved by adding the key structural characteristic of the modern sovereign state, elaborated by Hobbes in terms not dissimilar to passages in The Federalist : that of penetrating all intermediate levels and reaching down to the individual citizen to derive its authorization and, conversely, to impose its obligations.

In the early years after the Constitution, many federal powers remained dependent de facto on cooperation from the states; The Federalist ’s authors worried that the states would use this dependence to whittle away federal powers, and defended the Constitution’s provisions for federal supremacy as a protection against such whittling away. Later it was the states that became more dependent on federal cooperation. There was an undefined potential for developing the powers of the two levels of government in a cooperative or mutually dependent form; in the twentieth century, the federal government developed this into what came to be called “cooperative federalism,” wielding its superior financial resources to influence state policy in the fields of cooperation.

USE AND ABUSE OF THE FEDERALIST

The Federalist Papers have been used with increasing frequency as a guide for interpreting the Constitution. Bernard Bailyn (2003) has counted the frequency and found an almost linear progression: from occasional use by the Supreme Court in the years just after 1789 to more frequent use with every passing stage in American history. Much of this use he regards as abuse of the Papers.

The notes of Madison on the Constitutional Convention of 1787 are in principle a better source for discovering intention, but are less often used than The Federalist . They are harder to read, are harder to systematize, and have a structure of shifting counterpoint rather than consistent exposition. Moreover, they were just notes of debates where people were thinking out loud, not formal polished documents, and got off to a yawning start: they were kept secret for half a century.

The Federalist Papers , while clearer, are often subjected to questionable interpretation. Taking the Papers as gospel shorn from context, the result can be to stand the purpose of the authors on its head.

The crux of the problem is the fact that The Federalist Papers were both polemically vigorous and politically prudent. They were intended to promote ratification of a stronger central government as something that could sustain itself, sink deeper roots, and grow higher capabilities over time. In doing so, they often found it expedient to emphasize how weak the Constitution was and portray it as incapable of being stretched in the ways that opponents feared and proponents sometimes quietly wished. They cannot always be taken at face value.

To locate the original intention of the Constitution itself, the place to start would not be The Federalist Papers , but—as Madison did in The Federalist No. 40—the authorizing resolutions for the Constitutional Convention. There one finds a clear and repeated expression of purpose, namely, to create a stronger federal government, and specifically to “render the federal Constitution adequate to the exigencies of government and the preservation of the Union” (Madison 1788). Next one would have to look at the brief statement of purpose in the preamble of the Constitution. There, the lead purpose is “in Order to form a more perfect Union,” followed by a number of more specific functional purposes understood to be bound up with a more perfect union.

The intention of the wording of the Constitution would be found by looking at the Committee on Style at the Constitutional Convention, a group dominated by centralizing federalists. It took the hard substance of the constitutional plan that had been agreed upon in the months of debate, and proceeded to rewrite it in a soft cautious language, restoring important symbolic phrases of the old confederation in order to assuage the fears of the Convention’s opponents. It helped in ratification, but at the usual cost of PR: obfuscation. Theorists of nullification and secession, such as Calhoun , would later cite the confederal language as proof that each state still retained its sovereignty unchanged.

The original purpose of The Federalist Papers is the least in doubt of the entire series of documents: it was to encourage ratification and answer the critics who argued the Constitution was a blueprint for tyranny. As such, it was prone to carry further the diplomatic disguises already introduced by the Committee on Style. The authors, particularly Hamilton, argued repeatedly that, if anything, the government proposed by the Constitution would be too weak, not too strong. They said this with a purpose, not of restraining it further—as would be done by taking their descriptions of its weaknesses as indications of original intent—but of enabling its strengths to come into play and get reinforced by bonds of habit.

Hamilton in practice opposed “strict constructionism” regarding federal enumerated powers; he generally emphasized the Elastic (“necessary and proper”) Clause in the 1790's. But in The Federalist Papers , Hamilton in No. 33 justifies the Elastic and Supremacy Clauses in cautious, defensive, polemical fashion, denying any elastic intention but only the necessity of defending against what he portrays as the main danger: that of a whittling away of federal power by the states. Madison in No. 44 is slightly more expansive, arguing the necessity of recurrence in any federal constitution to “the doctrine of construction or implication” and warning against the ruinously constrictive construction that the states would end up applying to federal powers in the absence of the Elastic Clause. The logical implication was that either one side or the other—either the federal government or the states—must dominate the process of construing the extent of federal powers, and his preference in 1787–88 was for the federal government to predominate. In The Federalist , he warned against continuing dangers of interposition by the states against federal authority; at the Convention, he had advocated a congressional “negative” on state laws, that is, a federal power of interposition against state laws, as the only way of preventing individual states from flying out of the common orbit. While a legislative negative was rejected at the Convention, a judicial negative was later achieved in practice by the establishment of judicial review under a Federalist-led Supreme Court. Hamilton in The Federalist Nos. 78 and 80 provided support for judicial review, arguing—in defensive form as ever—that it was needed for preventing state encroachments from reducing the Constitution to naught.

The Elastic Clause was a residuum at the end of the Constitutional Convention flowing from the original pre-Convention resolutions. The resolutions called for powers “adequate to the exigencies of the Union”; the Convention met and enumerated the federal powers and structures that it could specifically agree on, then invested the remainder of its mandate into the Elastic and Supremacy Clauses, in which the Constitution makes itself supreme and grants its government all powers “necessary and proper” for carrying out the functions it specifies. There is a direct historical line in this, extending afterward to Hamilton’s broad construction of the Elastic Clause in the 1790's. From beginning to end, the underlying thought is dynamic, to do all that is necessary for union and government. The static, defensive exegesis of the Elastic Clause in The Federalist Papers , and in subsequent conceptions of strict construction, is implausible.

THE FEDERALIST AND THE GLOBAL SPREAD OF MODERN FEDERATION

The success of the modern federation in the United States after 1789 made it the main norm for subsequent federalism. The Federalist Papers provided the template for federation building; Hamilton was celebrated as its greatest evangelist. Switzerland reformed its confederation in 1848 and 1870 along the lines of modern federation. The new Latin American countries also often adopted federal constitutions in this period, although their implementation of federalism, like that of democracy itself, was sketchy.

After 1865, several British emigrant colonies adopted the overall model of modern federation: first the Canadian colonies (despite using the name “confederation”), then the Australian ones (using “commonwealth”), then South Africa (using “union”; there the ideological role of Hamilton and The Federalist was enormous, and the result was almost a unitary state). After 1945, several countries emerging out of the British dependent empire, such as India and Nigeria, adopted variants of modern federation. Defeated Germany and Austria also adopted federal constitutions. Later, other European and Third World countries also federalized their formerly unitary states. The process is by no means finished. Enumerating all the countries that had developed federal elements in their governance, Daniel Elazar concluded in the 1980's that a “federal revolution” was in process.

Once modern federation was known as a solution to the limitations of confederation, there has been less tolerance for the inconsistencies of confederation. Confederalism was a compromise between the extremes of separation and a unitary centralized state, splitting the difference; modern federation is more like a synthesis that upgrades both sides. What in previous millennia could be seen in confederalism as a lesser evil and a reasonable price to pay for avoiding the extremes, after 1787 came to seem like a collection of unnecessary contradictions: and if unnecessary, then also intolerable, once compared to what was available through modern federation.

The Federalist Papers have themselves been the strongest propagators of the view that confederalism is an inherently failed system. They made their case forcefully, not as scholars but as debaters for ratifying the Constitution. Their case was one-sided but had substance. They showed that confederation, even when successful, was working on an emergency basis, or else on a basis of special fortunate circumstances or external pressures. They offered in its place a structure that could work well on an ordinary systematic basis, without incessant crises or fears of collapse or dependence on special circumstances.

In recent years, it has been argued that Swiss confederalism was an impressive success, and so in a sense it was, holding together for half a millennium. Yet half a century after modern federation was invented in the United States, the Swiss found their old confederal system a failure and replaced it with one modeled along the lines of the modern federal one. The description of the old Swiss confederation as a failure became a commonplace; it entered into the realm of patriotic Swiss conviction. The judgment looks too harsh when the length of the two historical experiences are viewed side by side, yet has carried conviction in an evolutionary sense, as the cumulative outcome of historical experience. After the Constitution and The Federalist Papers , confederalism could not remain as successful in terms of longevity as it had been previously; the historical space for it shrank, while new and larger spaces opened up for modern federation. The advance of technology worked in the same direction, increasing interdependence within national territories and making localities more intertwined.

Despite the shrinkage of space for confederation within national bounds, confederation took on new force on another level. The American Union’s survival of the Civil War and consolidation afterwards gave a further impetus to discussion of modern federation, understood not only as a static technique for more sophisticated government within a given space, but also as a dynamic method of uniting people across wider spaces, in order to meet the needs of modern technological progress and the growth of interdependence. International federalist movements emerged after 1865, taking The Federalist Papers as their bible. They gained influence in the face of the world wars of the 1900's, feeding into the development of international organizations ranging from very loose and weak ones to integrative alliances and confederations such as NATO and the EU. The missionary ideology of The Federalist , used by its proponents for pummeling confederation, led on the international level to new confederations. When some (such as the League of Nations) were viewed as failures, further missionary use of The Federalist fed into the formation of still more confederations, often stronger and better conceived but confederations nonetheless, even if (as in the case of the EU) with a genetic plan of evolving into a federation. Federation seemed no less necessary but more difficult than federalist propagandists had suggested. Reflection on this situation led to an academic school of integration theory in the 1950's and 1960's, which treated functionalism and confederation as necessary historical phases in integration; in the neofunctionalist version of the theory it would lead eventually to federation, and in the version of Karl Deutsch it need not move beyond a “pluralistic security-community.” The work of Deutsch tied in with the view that confederation had been a greater success historically than was usually credited; to prove the success of the American confederation, Deutsch and his colleagues cited Merrill Jensen, an historian highly critical of The Federalist and friendly to the Anti-Federalists or Confederalists. Jensen argued that the Articles of Confederation had been a success, contrary to the American patriotic story that paralleled the Swiss one in condemning the confederalist experience. The relevance of The Federalist Papers was seen in this new literature as minimal, except at the final stages of a process that was only beginning and that the Papers themselves mystified as a matter of tactical necessity for getting a difficult decision made. Their exaggerations of the defects of confederalism were highlighted; their argument that only federation would “work” was seen as both a mistake and a diversion from the direction that progress would actually need to take in this era. It was only their normative orientation that was seen as helpful. The very success of The Federalist Papers had led to their partial eclipse. Nevertheless, their eclipse on the supranational level may not be permanent, and their influence on the level of national constitutionalism has remained enormous throughout.

Last updated: 2006

SEE ALSO: Anti-Federalists ; Federalists ; Hamilton, Alexander ; Madison, James

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The American Founding

The Federalist Papers: An Essay-by-summary

Federalist 1: The Challenge and the Outline

Hamilton says Americans have the opportunity and obligation to “decide the important question” can “good government” be established by “reflection and choice,” or is mankind “forever destined to depend for their political constitutions on accident and force.”  

To assist “our deliberations,” he provides an outline of topics to be covered “in a series of papers.” 1) “The utility of the union,” 2) the “insufficiency” of the Articles of Confederation, 3) the minimum “energetic” government requirement, 4) “the true principles of republican government,” 5) the analogy of the proposed Constitution to the State governments, 6) and the added security “to republican government, to liberty, and to property” provided by the proposed Constitution. He concludes this essay on the “momentous decision”:  adopt the Constitution or dismember the Union.

To read the entire essay, click here.

Part II Federalist 2-14:  “The Utility of the Union”

Federalist 2.

Jay urges, in the first of four essays, “calm and mature inquiries and reflections” as well as “cool, uninterrupted, and daily consultation.” He supports “sedate and candid consideration” of the Constitution, the product of the “mature deliberation” that took place in the summer of 1787.  He favors the common ties of the Union and rejects the “novel idea” of seeking “safety and happiness” in three or four separate Confederacies.

Federalist 3

Domestic tranquillity and common defense, says Jay, are better served under one “cordial union” directed by “temperate and cool” policies, in accordance with the “wisdom and prudence” of one well-administered government, than under three or four confederacies.

Federalist 4

One government, continues Jay, efficiently run and well administered, discourages foreigners from invading. One good national government will attract competent people.  

Federalist 5

One government, Jay reiterates, discourages internal division and convulsion, as well as dangers from abroad.  He invites the reader to compare England, Scotland, and Wales united—formidable together– and disunited—formidable against each other.

Federalist 6

Hamilton argues that ambition, rage, jealousy, envy, and vicinity are the five causes of war and faction. Such is human nature: “momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice.”  Reject the “visionary” notions of “perpetual peace,” and that separate “commercial republics” are “pacific and well mannered.” 

Federalist 7

Hamilton argues that disunited, we will be drawn into European politics and Europe will be drawn into American politics.  There will be the usual territorial and commercial disputes if separated.  We won’t remain united under the Articles of Confederation.

Federalist 8

Hamilton details the consequences of being disunited, including the presence of vast standing armies at the borders of each State.  A united America, like the United Kingdom, will bring us the “safety from external danger …[which]…is the most powerful director of national conduct,” rather than the disunited and hostile states of Europe.

Federalist 9

Hamilton’s five improvements in “the science of politics” were “either not known at all, or imperfectly understood by the ancients.” They form the “broad and solid” foundation for the claim that America will succeed where previous regimes have failed.  The improvements are 1) legislative checks and balances, 2) the separation of powers, 3) an independent judiciary, 4) a scheme of representation, 5) “the enlargement of the orbit.” 

He suggests that concerning 5) it is not clear that Montesquieu has a definitive and relevant teaching on enlarging the orbit through federal arrangements. His distinctions seem “more subtle than accurate.” And he chooses the Lycian Confederacy as his favorite where there is no equality of suffrage among the members and no sharp line protecting “internal administration.” Anyway, our States are larger than the small republics he had in mind.  Thus, we need to move beyond the “oracle” Montesquieu’s understanding of federalism as a way of a) retaining the independence of small states deemed traditionally necessary for liberty and happiness yet b) joining such pre-existing entities together so that they can pool their resources for such limited goals as common defence.  We need a new and American understanding of “the enlargement of the orbit.” 

Federalist 10

This is the first essay by Madison in The Federalist. It contains twenty-three paragraphs.

β 1. The “violence of faction” is the “mortal disease” of popular governments. The public assemblies have been infected with the vice of majority tyranny: “measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and overbearing majority.”

β 2.  What is a faction?  “A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

β  3. How can we cure “the mischiefs of faction?” We can either cure it by I) “removing its causes,” or II) “controlling its effects.” 

β  4. There are “two methods of removing the causes of faction”: I a) destroy “the liberty essential to its existence,” or I b) give “to every citizen the same opinions, the same passions, and the same interests.” 

β  5. I a) is a “remedy that is worse than the disease,” because it is “unwise.” It entails the abolition of liberty, “which is essential to political life.” 

β  6. I b) is “impracticable.” Opinions, passions, and interests are unlikely to be in harmony. “The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.” And that leads to “the division of society into different interests and parties.” 

β  7.  Further consideration of I b).  “The latent causes of faction are thus sown in the nature of man.”  Thus, there are many sources of factions, “but the most common and durable source of factions has been the various and unequal distribution of property.”  The “regulation of these various and interfering interests,” that “grow up of necessity in civilized nations…forms the principal task of modern legislation and forms the spirit of party and faction in the necessary and ordinary operations of government.” 

β  8.  Further consideration of I b). Legislators, alas, tend to be “advocates and parties to the causes which they determine.” But “justice and the public good,” require “impartiality.” 

β  9.  Further consideration of I b).  “It is vain to say that enlightened statesmen will be able to adjust these clashing interests and render all subservient to the public good.  Enlightened statesmen will not always be at the helm.” 

β  10. Conclusion to I b) and the introduction to II.  “The inference to which we are brought is that [I] the causes of faction cannot be removed and that relief is only to be sought in the means of [II] controlling its effects .”

β  11. Further consideration of II) “controlling its effects.”  “The republican principle” of majority rule is the solution to minority faction.  But what if we have majority faction?  “To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great desideratum by which this form of government can be rescued from the opprobrium under which it has labored and be recommended to the esteem and adoption of mankind.” 

β  12.  The introduction of II a) and II b) as the solutions to majority faction. “Either [II a)] the existence of the same passion or interest in a majority at the same time must be prevented, or [II b)] the majority having such coexistent passion or interest, must be rendered by their number and local situation, unable to concert and carry into effect schemes of oppression.” 

β  13. The introduction of III, the form of government, to implement the solution.  Madison declares that III a) “pure democracy,” works against solutions II a) and II b.

β 14.  III b) “a republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.”  

β  15. “The two great points of difference between a democracy and a republic.” 

β  16.  The first difference III b)* is “to refine and enlarge the public views” by way of the election system.  The question is do we choose “small (IVa) or extensive (IVb) republics?” 

β  17. IV b) is better than IV a) because it provides “a greater probability of a fit choice” of representatives.

β  18. IV b) is better than IV a) because it “will be more difficult for unworthy candidates to practice the vicious arts by which elections are too often carried.” 

β  19. The Constitution “forms a happy combination” of IVa) and IVb): “the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

β  20. The second difference III b)** “is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government.” 

β  21. III b)** clinches the case for IV b) over IV a).

β  22. “The influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States.”

β  23.  “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.” 

Federalist 11

 “A unity of commercial, as well as political, interests can only result from a unity of government.” There is another advantage to union: “it belongs to us to vindicate the honor of the human race,” in Africa, Asia, and America.  With a strong union, we can restrain “the arrogant pretensions of the Europeans,” and “dictate the terms of the connection between the old and the new world.” They think, “dogs cease to bark in America.” 

Federalist 12

Agriculture, as well as commerce, will benefit from a strong union.  And experience shows that the interests of both are the same.  Besides, taxing agriculture and commerce is where government revenue comes from.  We need to union if we want government revenue.

Federalist 13

Through economies of scale, it is cheaper to run one government than it is to run thirteen governments or three confederacies.

Federalist 14

Madison concludes this section on “the necessity of the Union,” with a response to the Antifederalist critique that “the great extent of country which the Union embraces” exceeds “the practicable sphere of republican administration.”  Madison offers six arguments. 1) The American experiment rests on a) discovering the distinction between a republic and a democracy. This distinction—“the principle of representation” replaces the people meeting and governing on the spot—was unknown to the ancient world, and b) making “the discovery the basis of unmixed and extensive republics.” Thus “the natural limit of a republic” has been extended far beyond what was ever previously envisioned.  2) the general government “is limited to certain enumerated objects, which concern all the members of the republic.” 3) “intercourse throughout the Union will be facilitated by new improvements…[in]…communication.” 4) “Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world.” 5) The greatness of the people of America is that “they have not suffered a blind veneration for the past….To this manly spirit posterity will be indebted.” 6) Let us “deliberate and decide” whether to adopt “a new and more noble course,” namely, “the experiment of an extended republic.”  

Part III Federalist 15-22:  The “Insufficiency” of the Articles of Confederation

Federalist 15.

There is a “great and radical vice in the construction of the existing confederacy,” says Hamilton.  The structural “defect” of the confederacy is that it is a union of, by, for, and over states and not a government based on individuals.  “The great and radical vice in the construction of the existing confederation is the principle of LEGISLATION for STATES OR GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist.”

He then asks the central question undergirding all the essays:  “why has government been instituted at all?”  The answer is:  “because the passions of men will not conform to the dictates of reason and justice without constraint.” Applied to the Articles, this answer suggests that “the ill-informed and prejudicial interference of particular administrators” in national issues ought to be of far greater concern than the other way around.

Federalist 16

The traditional federal principle—legislation over states in their collective political capacity–is anarchistic because it does not “address itself immediately to the hopes and fears of individuals.”  The laws of a Confederacy can only be enforced by a large standing army.  Thus we must adopt the principle of government over individuals for the people ought to be “the natural guardians of the Constitution.”  Hamilton introduces a brief introduction of judicial review and state nullification.

Federalist 17

Hamilton raises a question:  won’t the federal government be so powerful that it will encroach on the States?  No, The real problem is centrifugal and not centripetal.  The States have “a greater degree of influence” in every day matters such as the “ordinary administration of criminal and civil justice” and they are physically closer to the people. “Affections are weak in proportion to distance or diffusiveness of the object.” The objects of the federal government are limited to commerce, finance, negotiation, and war.  In the end, however, the people will throw their loyalty to the level of government that “administer their affairs with uprightness and prudence.”

Federalist 18

The first example of the traditional federal “disease” of anarchism: Greece.

Federalist 19

The second example of the traditional federal “disease” of anarchism:  Germanic.

Federalist 20

The third example of the traditional federal “disease” of anarchism:  Netherlands.

Federalist 21

Three initial “defects” of the Articles of Confederation are examined: 1) all powers of Congress are expressly delegated, 2) no guarantee for state governments and 3) quotas of contribution for raising revenue.

Federalist 22

Five additional “defects” of the Articles of Confederation are examined: 4) no power to regulate interstate commerce, 5) inadequate power to raise troops, 6) the equal representation of states, 7) no judiciary, and 8) inadequate method of ratification. 

Part IV Federalist 23-36: The minimum “energetic” government requirement

Federalist 23.

Hamilton announces the start of several essays dealing with three topics: “the objects to be provided for by a federal government, the quantity of power necessary to the accomplishment of those objects, (and) the persons upon whom that power ought to operate.”  He states that the objects of the federal government encompass, 1) common defense, 2) domestic tranquillity, 3) the regulation of commerce, and 4) relations with foreign nations. And he reminds his readers that it is impossible to foresee future “national exigencies.” Thus we need a degree of power—or energy–commensurate to the end in view.  He begins with 1) the war powers of the nation and declares them to be necessary and proper means to accomplishing the object of common defense. He finds the Antifederalist position to be an “absurdity”:  they support enlarged purposes but want limited powers! If it is safe to delegate the “object,” isn’t it safe to delegate the “power?”

Federalist 24

The object of 1) common defense receives further coverage.  Hamilton critiques, with the help of the observations a fictitious “stranger to our politics,” the objection to the presence of standing armies in time of peace. We live in a hostile world, says Hamilton. Anyway, the power over military establishments is lodged in Congress. The two-year appropriation process, he asserts, is the appropriate protection against the abuse of military power and the creation of “unnecessary military establishments.” He takes the opportunity to note that the Antifederalists have “misled” the electorate by exaggerating the presence of “bills of rights” that are “annexed” to State constitutions. 

Federalist 25

Further coverage of 1) common defense.  Why wait until a formal declaration of war, asks Hamilton, prior to initiating the raising of an army? Anyway, “the formal ceremony of declaring war has fallen into disuse.”  That “we must receive the blow before we could even prepare to return it,” is a “most extraordinary spectacle.” We ought to be “cautious about fettering the government with restrictions that cannot be observed” because “necessity” will prevail over a “parchment barrier.” If a breach, justified by necessity, becomes the norm, it will impair “the sacred reverence” for the “fundamental laws” 

Federalist 26

Further coverage of 1) common defense.  An additional defense of the two-year appropriation process as a check on the abuse of a standing army.  Don’t tie down the legislature with parchment barriers on the means for providing for the common defense. To accept the end, but restrain the means, is to display “a zeal for liberty more ardent than enlightened.”

Federalist 27

Coverage turns to 2) domestic tranquillity by way of 1) common defense.  Hamilton responds to the claim that the Constitution “cannot operate without the aid of a military force to execute its laws.” He lays down “a general rule…of confidence in and obedience to a government.”  The people will support government in “proportion to the goodness or badness of its administration.” He expects the American people will become more and more attached to the general government as it intermingles more in their daily lives.

Federalist 28

Further coverage of 2) domestic tranquillity. Hamilton repeats his maxim “that the means to be employed must be proportioned to the extent of the mischief.” Of course, the rule of law is generally the “admissible principle of republican government.” But there will be emergencies involving domestic insurrection and the general government may have to use force. This conforms to “that original right of self-defense which is paramount to all positive forms of government.” To think otherwise, is to engage in “the reveries” of naïve “political doctors.” But what if the general government or State governments abuse their power?  There are two lines of defense: 1) “the great extent of the country,” and 2) “the people, by throwing themselves into either scale, will infallibly make it preponderate.” 

Federalist 29

Further coverage of 2) domestic tranquillity. Hamilton argues for the existence of a well-regulated militia under the control of the general government.  He accuses the Antifederalists of “a striking incoherence:” they want neither a militia nor an army!  Is this “the inflammatory ravings if chagrined incendiaries or distempered enthusiasts?”

Federalist 30

Hamilton turns to 3) the regulation of commerce.  Once again he states the maxim that “every power ought to be proportionate to its object.” This time, he applies it to taxation: “money is, with propriety, considered the vital principle of the body politic.” He rejects the opposition proposal that the power of internal taxation be given to the States and the power of external taxation be given to the nation. This is romantic poetry.

Federalist 31

Further coverage of 3) the regulation of commerce. He repeats his point that the general government should not be excluded ahead of time from exercising certain means of raising revenue since the world is full of contingency. Moreover, there are certain “maxims in politics”—“first principles,” or “primary truths”– governing the relationship between ends or objects on the one hand and means or powers on the other hand: the government must be given the “requisite” means for the “complete execution” of the objects “for which it is responsible.” But, say the opposition, the States don’t have a guaranteed source of revenue and won’t be able to protect themselves from the usurpations by general government.  More “enchanted castle,” nonsense replies Hamilton.  We should leave the preservation of the “constitutional equilibrium” between the two levels of government “to the prudence and firmness of the people.” 

Federalist 32

Further coverage of 3) the regulation of commerce.  Hamilton reminds the reader that the Constitution is a “partial consolidation” rather than “an entire consolidation.”  Accordingly, he employs the three-pronged “negative pregnant” test to grasp “the whole tenor of the instrument which contains the articles of the proposed constitution.”  He applies the test to the power of taxation: a) is the power exclusively granted to the union? “No.” b) is the power prohibited to the States? “No.” And c) is the power granted to the union and it makes no sense that the states have concurrent jurisdiction? “No.”  He concludes, therefore, that it was the “sense of the convention,” to permit the states to retain the power of concurrent taxation.

Federalist 33

Further coverage of 3) the regulation of commerce.  Hamilton answers the following Antifederalist claim grounded in “virulent invective and petulant declamation,” namely, that the necessary and proper clause and the supremacy clause will enable the general government to completely take over the power of taxation and thus destroy local government and individual liberty.  Not so; nothing would change if these clauses weren’t even there.  Isn’t the power of taxation given to the general government? All clause 18—the so-called “sweeping clause–is saying is that Congress can “pass all laws necessary and proper to carry it into effect.” Why, then, was “the clause introduced?”  The Convention saw this “tautology” as a precautionary protection of the general government against later attempts “to curtail and evade the legitimate authorities of the Union.”   Anyway, in the end, it is the people of America who will decide the meaning of necessary and proper. And without the supremacy clause, the arrangement would be a mere treaty.

Federalist 34

Further coverage of 3) the regulation of commerce. Hamilton repeats his claim that when thinking about the expenses of government we ought not to tie the hands of the general government. “If we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce.”  Accordingly, we must be aware of “future contingencies,” in designing a Constitution that is to last into “remote futurity.” In framing a Constitution, as distinguished from writing legislation, we ought to focus on the future and the permanent rather than the current and temporary scene. 

Federalist 35

Further coverage of 3) the regulation of commerce.  This essay explores the relationship between the power of taxation and the right of representation.  Hamilton criticizes the “frequent objection” of the Antifederalists that the House “is not sufficiently numerous” to provide for a complete and sympathetic representation of the people.  He portrays this argument as  “impracticable” and “unnecessary.” First, “an actual representation of all classes of the people by persons of each class is altogether visionary.” Second, the Congress need not be an exact mirror of the society.  Third, a dependency on the people, and being bound by the very laws he makes, are “the strong chords of sympathy between the representative and the constituent.”  Finally, we need representatives capable of exercising “neutrality” and “impartiality” in the clash between the agricultural and mercantile interests. That is the role of the “learned professions.” 

Federalist 36

Further coverage of 3) “of the regulation of commerce.”  Additional emphasis is given to representation and taxation. If we leave things alone, then merchants, landowners, and the learned professions will be elected to Congress.  They “will truly represent all those different interests and views” across the extended republic. He concludes his coverage of the “energy” essays thus:  “Happy will it be for ourselves, and most honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!”

Part V Federalist 37-51: “The Great Difficulty of Founding”

Federalist 37-40:  the difficulty with demarcations and definitions , federalist 37.

This is the first of fifteen essays written by Madison that provide a window on the “work of the convention.”  He says, “a faultless plan was not to be expected.” The “indistinctness of the object, imperfection of the organ of conception, [and] inadequateness of the vehicle of ideas” each made the founding of the Constitution “a great difficulty.” 1) Humans are fallible, 2) the undertaking was “novel,” 3) “mingling…together” and “defining with certainty,” the “vital principles” of liberty, energy, and stability in the legislature, executive, and judiciary was very difficult, 4) drawing the line between the powers of the general government and the state governments was “no less arduous,” 5) the “imperfection of the human faculties” is clear and so “meaning” must be “liquidated and ascertained by a series of particular discussions and adjudications,” and 6) “contending interests and local jealousies” had to be dealt with.  It is astonishing that “so many difficulties should have been surmounted.” Is this the result of the “finger” of “the Almighty hand” at work?

Federalist 38

The creation of the Constitution faced another difficulty. It is an “experiment.” This is the first in the history of the world to have “been committed to an assembly of men.”  But, instead of acknowledging “the improvement made by America on the ancient mode of preparing and establishing regular plans of government,” the Antifederalists criticize the plan in an incoherent and irrelevant manner and demand perfection.  Yet “are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted?”   

Federalist 39

Madison addresses two questions: does the Constitution pass 1) the republicanism test and 2) the federalism test?  The answer depends on how we define republicanism and federalism.  These are the “great difficulties” of definition.

1) The “genius of the people of America,” and “the fundamental principles of the Revolution,” demand that we “rest all our political experiments on the capacity of mankind for self government.” If the Constitution departs from the “strictly republican” standard, or “character,” it must be rejected.  What, then, is the definition of a republic?  It is “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding office during good behavior.” We learn that a) “it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it,” and b) it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.”  Madison announces that the Constitution passes the test.

2) There are three tests to measure the federalism of the Constitution, the first of which—a) “the real character of the government”—is covered in the remainder of the essay. There are five “considerations” to ponder when dealing with the “real character” standard.  

I) “The foundation on which it is to be established.” Who ratifies the Constitution, the states or the people? II) “The sources from which its ordinary powers are to be drawn.” Are the people or the states represented in the Congress?  III) “The operation of those powers.” Does the government “operate” directly on the people in their “individual capacities” or on the states in “their collective and political capacities?”  IV) “The extent of`… the powers.” Does the general government have “an indefinite supremacy over all persons and things,” or does its jurisdiction extend “to certain enumerated objects only?” V)  “The authority by which future changes in the government are to be introduced.” Are amendments secured by a majority of the people or by the unanimity of the States? 

Madison concludes that it is “in strictness, neither a national nor a federal Constitution, but a composition of both.  In its foundation it is federal, not national; in the sources from which the ordinary powers of government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments , it is neither wholly federal nor wholly national.” 

Federalist 40

Madison turns to the second and third tests, or difficulties, concerning the “federalism” of the Constitution.  b) Was the convention “authorized to propose such a government?”  Madison’s response is that the delegates were authorized to frame a government “adequate to the exigencies of the Union,” and they performed that task, and c) how far did “considerations of duty arising out of the case itself…supply any defect of regular authority?”   Madison acknowledges that there are some doubts that Congress authorized the delegates to devise a plan that totally overhauled, rather than simply amended, the Articles. So he appeals to the Declaration of Independence: “it is the precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” So the really important question is NOT is the plan legal in the narrow sense of the term, but “whether the advice (of the Convention) be good?”

Federalist 41-46: The Difficulty of Federalism

Federalist 41.

This is the first of six essays on the difficulty of powers and federalism. This difficulty, in turn, can be divided into two parts around the consideration of two questions. The first difficulty of powers and federalism is this: has any unnecessary and improper power been granted to the general government? This is covered in Federalist 41-44. The answer is “no.” (The second difficulty is this: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? This is covered in Federalist 45-46.)  Six “classes” [1-6 below] of the first difficulty of power and federalism in the Constitution are examined. 

Federalist 41 examines the 1) “security against foreign danger” class of power.  Madison reiterates Hamilton’s earlier defense of the Constitution with respect to military establishments, standing armies, the militia, the power of taxation, and the war powers of the general government. 

Federalist 42

This essay examines the second and third classes of federal power: 2) “regulation of the intercourse with foreign nations,” and 3) “maintenance of harmony and proper intercourse among the states.” The former covers the implications of the “interstate commerce” clause. The latter focuses on the remaining clauses in Article I, Section 8.  

Madison regrets that 2) the “power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.” Nevertheless, he is optimistic that the “the barbarism of modern policy” will be soon “totally abolished.” He concludes:  “Happy would it be for the unfortunate Africans if an equal prospect lay before them of being redeemed from the oppressions of their European brethren.”  Concerning 3) Madison laments that “the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”   

Federalist 43

This essay examines the fourth class of federal power: 4) “certain miscellaneous objects of general utility.” Nine miscellaneous clauses are covered.

Most attention is given to the sixth clause, namely, the republican guarantee clause. The main issues here are a) “to defend the system against aristocratic or monarchical innovations,” and b) to protect the principle of majority rule against the actions of a minority of “adventurers.”  Madison then adds:  “I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character and give a superiority of strength to any party with which they may associate themselves.” 

The ninth and last clause covered is Article VII. This clause provides for ratification of the Constitution by nine out of thirteen specially called conventions. Madison asks: how can the Articles be “superseded without the unanimous consent of the parties to it?  The answer, anticipated in Federalist 40, is “the great principle of self-preservation: to the transcendent law of nature and nature’s God, which declares that the safety and happiness of the society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”

Federalist 44

This essay examines the fifth and six classes of federal power: 5) “restraint of the States from certain injurious acts,” and 6) “provisions for giving due efficacy to these powers.” The latter revisits the necessary and proper clause.  “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, as has been elsewhere shown, no part can appear more completely invulnerable.  Without the substance of this power, the whole Constitution would be a dead letter.” He examines, and rejects, the four choices, other than the one stated in Article 1, Section 8, clause 18, that were available to the convention: a) adopt the “expressly” delegated language of the Articles, b) list a “positive enumeration of the powers” attached to the necessary and proper clause, c) list a “negative enumeration” of the powers not attached, and d) remain “altogether silent on the subject, leaving these necessary and proper powers to construction and inference.”  All the clause is saying is that “wherever a general power to do a thing is given, every particular power necessary for doing it is included.”  And if Congress should abuse this power? “The people…can, by the election of more faithful representatives, annul the acts of the usurpers.”  

Federalist 45

This essay starts the consideration of the second difficulty of power and federalism: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? The answer is “no.” 

Federalist 45 begins with the question: was the revolution fought to secure the peace, liberty, safety, and public good of the American people or to secure the sovereignty of the states?  Madison says, the former, and he is willing, if necessary, to sacrifice the states for the “public happiness.” But it will be difficult to do away with the states even if one wanted to because they are “ constituent and essential parts of the federal government.” Besides, “the powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.” Actually, he concludes, the Constitution doesn’t enlarge the powers of the federal government; “it only substitutes a more effectual mode of administering them.” But the federal government will grow in importance during wartime.

Federalist 46

This essay concludes the consideration of the second difficulty of power and federalism: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? The answer, again, is “no.” 

Madison suggests that the federal government has more to fear from the encroachment of the state governments than vice versa. And the state governments are capable of defending themselves. The sentiments of the people are naturally closer to the state governments and things will stay that way unless the federal government is better administered.  In which case, “the people ought not surely to be precluded from giving most of their confidence where they may discover it to be the most due.”  

Federalist 47-51:  The Difficulty of Republicanism

Federalist 47.

This is the first of five essays on the difficulty of republicanism. He is interested in “the structure” of the government.  Madison begins with a “political truth”: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.” The Antifederalists, relying on Montesquieu the “oracle” on the doctrine of separation of powers, claim that the Constitution violates the political truth or maxim, because the branches are not separate and “distinct.” Madison argues 1) that Montesquieu wasn’t advocating a complete “wall of separation” between the branches, but endorsed “ partial agency ,” b) there isn’t a strictly “distinct” separation of powers in the state constitutions and 3) the “political truth” really means that the separation of powers is violated when “the whole power of one department is exercised by the same hands which possess the whole power of another department,” and not when one branch has a partial agency in another branch. In fact, partial agency in practice is needed to accomplish the separation of powers in theory. 

Federalist 48

Madison declares that “the most difficult task” is to provide “some practical” security for each branch against “the invasion of the others.”  The Madison “correction” of “the founders of our early republics,” is this:  Legislative tyranny is far more likely than executive tyranny “in a democracy.” Virginia and Pennsylvania in the 1780s are proof for Madison that their Constitutions actually encourage the emergence of this new kind of tyranny. And, says Madison, Jefferson, in his Notes on the State of Virginia , came to recognize the reality of “ elective despotism ”: “One hundred and seventy-three despots would surely be as oppressive as one.” What “precautions” then shall be taken against this dangerous branch?  More is needed than “a mere demarcation on parchment of the constitutional limits of the several departments.” 

Federalist 49

Madison opens with a critique of Jefferson: he understands the problem, but not the solution. Jefferson proposes that when violations of the separation of powers occur, “a convention shall be called for the purpose” of “ correcting breaches .” But, asks Madison, won’t it be the executive and judiciary appealing to the people to call a convention to restrain the legislature?  And who would most likely be elected to the convention than the very legislators who caused the problem?   “The passions , therefore, not the reason , of the public would sit in judgment.  But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” Even if these conventions are called only for “certain great and extraordinary occasions,” we must remember “that all governments rest on opinion,” and the calling of a correcting convention would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” 

Federalist 50

Madison says the same objections apply to “periodical appeals” as they do to “occasional appeals to the people” to correct infractions of the Constitution.

Federalist 51

This is the last of fifteen essays written by Madison on “the great difficulty” of founding. There are ten paragraphs in the essay.

β 1. The way to implement the theory of separation of powers in practice is to so contrive “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” 

β 2. Accordingly, “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” 

β 3.  “It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.”

β 4. A.“The Great Security”

“The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…Ambition must be made to counteract ambition.  The interests of the man must be connected with the constitutional rights of the place.”  

B:  “A Reflection on Human Nature”

Isn’t relying on ambition and interest, “a reflection on human nature?” But, adds Madison, what is government itself but the greatest reflection on human nature?  If men were angels, no government would be necessary.” 

C:  “The Great Difficulty” of Founding

“You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”  

β 5.  “This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” Madison calls this policy “inventions of prudence.”

β 6.  “In republican government, the legislative authority necessarily predominates.” Thus, it is “not possible to give to each department an equal power of self-defense.” Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive a) with the power of a conditional veto and b) “some qualified connection” with the Senate.

β 7. The general government comes closer to passing the “self-defense” of each branch test than do the State governments.

β 8. “There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.” 

β 9.  First, America is a “compound republic,” rather than a “single republic.” This provides for a “double security…to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.” 

β 10. Second, there are only two ways to combat “the evil” of majority faction, a) “by creating a will in the community independent of the majority,” or b) creating an authoritative source “dependent on the society,” but, and here is the essence of the American experiment, the society “will be broken down into so many parts,” that it contain a vast number and variety of interests. 

To repeat, the American society will “be broken down into so many parts, interests and classes of citizens, that the rights of individuals, or the minority, will be in little danger from interested combinations of the majority.”  Echoing Federalist 10, Madison says “the security for civil rights must be the same as that for religious rights.  It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.” And both depend on “the extended republic.”  Let us not forget, adds Madison, that “justice is the end of government.  It is the end of civil society.  It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”  Fortunately, in “the extended republic…a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”  We have rejected the “precarious security” provided by the “hereditary or self-appointed” alternative of “introducing into the government…a will independent of the society itself.”  

Part VI Federalist 52-84: “The True Principles of Republican Government”

Federalist 52-61:  the house of representatives, federalist 52.

Madison introduces the “more particular examination of the several parts of the government,” with ten essays on the House of Representatives. He organizes the treatment around “five views.” 1) “The qualification of electors” is completely covered and 2) the duration in office is partially covered in Federalist 52.  With regard to the former, he says the electoral “door” is wide “open to merit of every description,” regardless of place of birth, “young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.” Concerning the latter, he reminds the reader that “the scheme of representation as a substitute for a meeting of the citizens in person being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples.” 

Federalist 53

Further coverage of 2) duration in office. One of the “instructive examples” derived from the modern understanding of constitutionalism, says Madison, is that we can safely discard the notion “that where annual election end, tyranny begins.”  The only “reason on which this proverbial observation is founded” can be traced to Britain where the Parliament can, and has, “by ordinary power of government…changed the period of election.” But no such security “for the liberty of the people” against “these dangerous practices” is necessary in America because the government is “limited…by the authority of a paramount Constitution.”  Besides which, a two year “unalterably fixed” biennial elections provides more time for representatives to acquire the “practical knowledge…useful to the affairs of the public.” 

Federalist 54

This essay covers 3) “the apportionment of its members.” Madison says that the rule for apportionment is to be the “same rule with that of direct taxes.” There is no inherent reason, he says, why the rule should not be “numbers” for both.  However, property has “recently obtained the general sanction of America” as the rule for direct taxes.  Does it then follow “that slaves ought to be in the numerical rule of representation?”  He lets an unidentified defender of “southern interests” make the case—articulate in quotation marks over four pages–for the modification in “the census of persons” rule for apportionment.  Madison concludes: “it may appear a little strained in some points, yet on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.” 

Federalist 55

This is the first of four essays on 4) “the number of which the House of Representatives is to consist.” The apparently small size of the House, says Madison, has been given extensive attention by the most worthy of the opponents.  He outlines four “charges” concerning the small number:  the House will a) be “an unsafe depository of the public interests,” b) fail to “possess a proper knowledge” of the interests of their constituents, c) be “taken from” the class least sympathetic to the “mass of the people,” and most disposed to sacrifice their interest, and d) the defect in numbers of representatives will become “more disproportionate” as the population increases.  This essay discusses a) and makes the following two points i) “Had every Athenian been a Socrates, every Athenian assembly would still have been a mob,” and ii) there is a decent side to human nature that balances the depraved side. In fact, “republican government presupposes the existence of these [better] qualities in a higher degree than any other form.” 

Federalist 56

This is the second essay on 4) “the number of which the House of Representatives is to consist.”  It addresses the “second charge”:  b) the House “will be too small to possess a due knowledge of the interests of its constituents.” The essay says that the kind of information the representatives need to assist their constituents, echoing Federalist 35 and 53, is knowledge about “commerce, taxation, and the militia,” rather than “particular knowledge of their affairs.” 

Federalist 57

This is the third essay on 4) “the number of which the House of Representatives is to consist.”  It addresses the “third charge”:  c) the chosen representatives will “have least sympathy with the mass of the people,” and be inclined to “sacrifice” the interests of the people.  Madison describes this objection as “extraordinary,” because “the principle of it strikes at the very root of republican government.”  The objective, says Madison, is to elect wise and virtuous representatives and then adopt “precautions” to keep them that way whilst in office.  The primary method of keeping the representatives virtuous is a “habitual recollection of their dependence on the people.” But “human prudence” has “devised” four “cords by which they will be bound to fidelity and sympathy with the great mass of the people”: “duty, gratitude, interest, ambition.” 

Federalist 58

This is the fourth and final essay on 4) “the number of which the House of Representatives is to consist.”  It addresses the “remaining charge”:  “the number of representatives will not be augmented” as the population increases.  Madison admits, “this objection, if well supported, would have great weight.” But, he continues,  “there is a peculiarity in the federal Constitution which insures a watchful attention…to a constitutional augmentation.” The four largest states “will have a majority of the whole votes in the House,” and since they hold the power of the purse, “the most complete and powerful weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure,” these states can defeat “unfriendly” opposition in the Senate. Madison, in conclusion, warns about increasing the size of the House “beyond a certain limit.”  Experience demonstrates “that the countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.”

Federalist 59

This is the first of three essays on 5) “the times, places, and manner” clause.  Hamilton states the case for this clause:  “ every government ought to contain in itself the means of its own preservation .” What if “the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election?”

Federalist 60

This is the second of three essays on 5) “the times, places, and manner” clause.  Couldn’t this clause be manipulated to confine “the places of election to particular districts and rendering it impracticable to the citizens at large to partake in the choice?” This, says Hamilton, is “the most chimerical” of  “all chimerical propositions.”  Hamilton continues: “to speak in the fashionable language of the adversaries of the Constitution,” will this clause “court the elevation of the ‘wealthy and the well-born,’ to the exclusion and debasement of all the rest of the society?” “No,” because of the multiplicity of interests, the separation of powers, and the scheme of representation.

Federalist 61

This is the third of three essays on 5) “the times, places, and manner” clause. Here the defense of the clause moves beyond the argument that it is necessary and proper to “a positive advantage.” In conclusion, “I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives.” 

Federalist 62-66: The Senate

Federalist 62.

Madison “enters next on the examination of the Senate.”  He organizes the five essays on the Senate around five “heads.” Federalist 62 covers four of the “heads.” 

The first three are “1) the qualification of Senators, 2) the appointment of them by the state legislatures, 3) the equality of representation in the Senate. ” It is “unnecessary to dilate,” says Madison, on 1) and 2).  Concerning 3) this is the result of the compromise, which renders us a “compound republic, partaking of both the national and federal,” and, accordingly, “ does not call for much discussion.” But, he does say that it is “a advantageous consequence” that “no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the States.” 

The remainder of Federalist 62 introduces 4) “the number of Senators and the term for which they are to be elected.” Madison divides the coverage of 4) into six parts. The treatment of the first four of these six “defects” and six “remedies,” occurs in this essay and are directed to checking the House, that “numerous and changeable body.”  

First .  The Senate operates as “a salutary check” on efforts by representatives in the House to betray the public trust. Second . The smaller numerical size, and the longer duration in office, provides a healthy restraint “to the impulse of sudden and violent passions.” Third . A Senate is vital to overcoming “the blunders” of popular legislation.  “A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained….I scruple not to assert that in American Governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last mode which increases the security for the first.” Fourth . A Senate helps overcome the “mutability in the public councils.” A frequent change of the representatives in the lower House causes a “change in opinions,” and then a “change in measures.”  

Madison outlines five “mischievous effects of mutable government.” A) “It forfeits the respect and confidence of other nations, and all the advantages connected with national character.” B) At home, it “poisons the blessings of liberty itself…if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” C) “Public instability” favors “the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people.” D) “No great improvements or laudable enterprises can go forward” without the presence of “a steady system of national policy.”  E) It robs the system of “attachment and reverence.” 

Federalist 63

This essay contains twenty-one paragraphs.  The first six paragraphs of the essay concludes the fifth and sixth part of 4) “the number of Senators and the term for which they are to be elected.” Madison then turns in paragraph seven to protecting the people “against their own temporary errors and delusions.” Paragraphs 8 through 14 revisit the sufficiency of the extended orbit and what the ancients knew about the principle of representation. The essay concludes with a consideration of the Antifederalist claim that the Senate will become a “Tyrannical Aristocracy.” 

The Idea of “Due Responsibility”

β 1. Fifth . A Senate is valuable because it provides “ a due sense of national character.” 

β 2 and 3. In particular, it is wise to listen to the “opinion of the impartial world,” and the “unbiased part of mankind” lest the “numerous and changeable” House of Representatives “be warped by some strong passions or momentary interest.”

 β 4.  Sixth .  Madison introduces a “new, but paradoxical, understanding” of “the due responsibility in the government to the people.”  

β 5.  Instead of understanding “responsibility” exclusively in terms of “dependence on the people” through “the frequency of elections, ” Madison puts forth the idea of the “responsibility” of the representatives to the long run interests of the community.

β 6.  This is the “responsibility” of the Senate.

“The Cool and Deliberate Sense of the Community”

β 7. The Senate is valuable at certain “critical moments” in “public affairs.” It is “salutary” to have a Senate that can check the “temporary errors and delusions of the people,” until reason, justice, and truth can regain their authority over the public mind.” The vital role of the Senate in the institutional framework, then, is to secure the principle of “the cool and deliberate sense of the community.”

The “Extension of the Orbit” Revisited

β 8.  Madison revisits the importance of  “the extension of the orbit” element in the science of politics introduced in Federalist 9 and explicated in Federalist 10.  He admits that the extended orbit theory of Federalist 10 is necessary but insufficient and, may in fact, be counterproductive.  Once again, we need further “auxiliary precautions” to make the American experiment succeed.

β 9.  To be sure, America is different from other governments, both “ancient and modern.“ Yet, it is instructive to note that “history informs us of no long-lived republic which had not a senate.” 

The “Principle of Representation” Revisited

β 10. Madison repeats the claim of Federalist 9 that “the principle of representation” is the pivotal difference between the American model and those found in antiquity. He revisits the claim that the principle of representation was “unknown” to the ancients. 

β 11, 12, & 13. The extent to which the principle of representation was used in antiquity.

β 14. Thus, “it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political institutions.” The unique feature of the American experiment is, that for the first time, we have “ the total exclusion of the people in their collective capacity , from any share” in the government,” rather than “ the total exclusion of the representatives of the people from the administration” of the government.”  Madison then concludes “that to insure this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory.” 

The Senate as a “Tyrannical Aristocracy”

β 15. The opposition will claim that the Senate will become, by “gradual usurpations,” an independent and  “tyrannical aristocracy.”

β 16.  One response to the Antifederalists is “that liberty may be endangered by the abuses of liberty as well as by the abuses of power.” 

β 17.  A second response is that the claim defies reason: for the alleged “tyrannical aristocracy” to take place, the Senate must “in the first place, corrupt itself,” and ultimately corrupt “the people at large.”  

β 18.  A third response: the claim defies experience of the state governments.

β 19.  A fourth response: even the British example fails to lead to “tyrannical aristocracy.”

β 20.  A fifth response: there are no examples from antiquity of  “tyrannical aristocracy.” 

β 21.  Finally, the House of Representatives will never allow this to happen.

Federalist 64

This is the first of three essays on 5) “the powers vested in the Senate.”  The essay covers the “advise and consent” clause concerning the treaty making power that the Senate shares with the President. Jay asks why is it better for national policy to involve the Senate and not the whole Congress?  “The Constitution has taken the utmost care” by the size of the Senate, the need for “secrecy and dispatch,” and the age and duration in office provisions that the Senators “shall be men of talents, and integrity.” Thus “the treaties they make will be as advantageous as…could be made.” 

Federalist 65

This is the second of three essays on 5) “the powers vested in the Senate” The remaining powers of the Senate involve the participation of the Senate “with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments.” The former is covered in the executive essays; here, Hamilton explains “the judicial character of the Senate.” In short, this essay covers the impeachment-conviction power.  The Senate, and neither the House nor the Supreme Court, is the “tribunal sufficiently dignified” and “sufficiently independent” to render the sentence of “perpetual ostracism from the esteem and confidence and honors and emoluments of his country” for official “POLITICAL” misconduct.  

Federalist 66

This is the last of three essays on 5) “the powers vested in the Senate.”  This essay concludes the defense of locating of the “determining in all cases of impeachment” power alone in the Senate. This power does not 1) violate the doctrine of the separation of powers, 2) “give to the government a countenance too aristocratic,” or produce a conflict of interest with the Senate-Executive 3) appointment power, or 4) treaty making power. 

Federalist 67-77:  The Presidency

Federalist 67.

This is the first of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is the first of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Cato V. 

“Scarcely any other part of the Constitution,” says Hamilton, has been “inveighed against with less candor or criticized with less judgment.”  The opposition portray the Presidency as a full-grown progeny of monarchy, and Cato claims that, under the Constitution, the President can fill temporary vacancies in the Senate.  This is utter nonsense, since this power is “expressly allotted to the executives of the individual States.”  Yet, this is typical of the “shameless” exercise of “their talent of misrepresentations,” and “an unequivocal proof of the unwarrantable arts which are practised to prevent a fair and impartial judgement of the real merits of the Constitution.”

Federalist 68

This is the second of eleven essays written by Hamilton defending the Presidency Presidency against the “unfairness” of the Antifederalist “representations.” This is the second of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is the Federal Farmer.

He remarks that the “mode of appointment” by the Electoral College “is almost the only part of the system, of any consequence, which has escaped without severe censure.”  He reminds the reader that “this process of election affords a moral certainty that the office of President” will be “filled by characters pre-eminent for ability and virtue.”  This is important since “the true test of a good government is its aptitude and tendency to produce a good administration.” And a good executive is central to a good administration.

Federalist 69

This is the third of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is third of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Tamony. 

The “real character of the proposed executive” is revealed in terms of the organization and powers tests. The tests are 1) “single magistrate,” 2) “ four years; and is to be re-eligible,” 3) impeachment and removal from office, 4) “qualified negative of the Presidency,” 5) “occasional…commander-in-chief” power which “would amount to nothing more than the supreme command and direction” of the armed forces, 6) power to pardon, 7) power to “adjourn the legislature,” 8) with the “advice and consent of the Senate, to make treaties,” 9) power to “receive ambassadors and public ministers,” 10) “the power to nominate and appoint.”  Hamilton concludes that putting the Constitution to these tests, the Presidency is closer to the Governor of New York than to the Monarch of Great Britain. In fact, with the exception of the treaty-making power, “it would be difficult to determine whether that magistrate would in the aggregate, possess more or less power than the governor of New York.” 

Federalist 70

This is the fourth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.”  The essay opens with the Antifederalist concern “that a vigorous executive is inconsistent with the genius of republican government.” Hamilton’s response is that “energy in the executive is a leading character in the definition of good government.”  He explores two questions. A) What are the “ingredients which constitute energy in the executive?”  B) How far can these ingredients be combined with other ingredients which constitute safety in the republican sense? A) There are four ingredients of energy: I Unity, II Duration, III Adequate Provision for Support, and IV Competent Powers. B) There are two ingredients of republican safety: I “A due dependence on the people,” and II “A due responsibility.”

A) I Unity is “conducive to energy.”  “The dictates of reason and good sense,” demonstrate that unity in the executive better secures the goals of “decision, activity, secrecy, and dispatch.” A “plurality in the executive” also destroys “responsibility.”

Federalist 71

This is the fifth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” It covers A) II Duration as it pertains to “the personal firmness of the executive.

β 1.  “It is a general principle of human nature that a man will be interested in what he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it.”  The duration provision helps the President to be “interested” in resisting the “ill-humors” of society and a “predominant faction in the legislative body.”

β 2.  “The servile pliancy of the executive to a prevailing current in the community or in the legislature” is NOT “its best recommendation.”  The President must resist a “complaisance to every sudden breeze of passion” that might emerge in the society contrary to the true interests of the people, and, instead be “the guardians of those interests to withstand the temporary delusions in order to give them time and opportunity for more cool and sedate reflection.”  It is the duty of the executive to secure the “republican principle”:  “the deliberate sense of the community should govern.” 

 β 3.  “The executive should be in a situation to dare to act…with vigor and decision.”

β 4.  “The fundamental principles of good government” requires a fortification of the executive against the “almost irresistible” tendency in “governments purely republican” for the “legislative authority to absorb every other.” 

β 5- β7.  “It may be asked whether a duration of four years” is sufficient. It may not “completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government.” 

Federalist 72

This is the sixth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay concludes the coverage of A) II Duration pertaining to “the stability of the system of administration.” He lists five “pernicious” “ill effects” that will occur as a result of “exclusion.” 

β 1. “There is an intimate connection between the duration of the executive magistrate in office and the stability of the administration of government” which includes “foreign negotiations,” public finance, and “the directions of the operations of war.”  

β 2. “With a positive duration of considerable extent, I connect the circumstance of re-eligibility.” The former is vital for individual firmness; the latter for a “wise system of administration.”  

β 3.  “Exclusion” from office, or term limits, for the President is “pernicious.”

β 4.  “One ill effect of the exclusion would be a diminution in inducements to good behavior.” “The desire of reward is one of the strongest incentives of human conduct.   Even the love of fame, the ruling passion of the noblest minds” is not strong enough to motivate “the generality of men” toward “the positive merit of doing good.”  

β 5, 6, 7. “Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation.”  It is contrary “to the stability of government, to have half a dozen men who had credit enough to raise themselves to the seat of the supreme magistracy wandering among the people like discontented ghosts and sighing for a place which they were destined never more to possess.”

β 8.  “A third ill effect of the exclusion would be the depriving the community of the advantage of the experience gained by the Chief Magistrate in the exercise of his office.”  Remember, “experience is the parent of wisdom.” 

β 9.  “A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the State, their presence might be of the greatest moment to the public interest or safety.”

β 10. “ A fifth ill effect” is that “by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures.” 

β 11. These “disadvantages” are worse under a “scheme of perpetual exclusion.” 

β 12, 13.  “What are the advantages promised to counterbalance these disadvantages?…1 st , greater independence in the magistrate; 2 nd , greater security to the people.” 

β 14.  The disadvantages of exclusion outweigh the advantages.

Federalist 73

This is the seventh of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is the fourth of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Abraham Yates. This essay covers the third and fourth, and the last, of the “ingredients”: A) III:  Adequate Provision for Support, and A) IV:  Competent Powers.  The essay focuses on A) IV.  Attention is given to A) IV a, the veto power. 

Hamilton defends the “qualified negative of the President” as 1) “a shield to the executive,” to protect its “constitutional rights,” and as 2) an “additional security against the enaction of improper laws.” Sometimes, instead of adhering to the principle of “due deliberation,” the Congress passes laws through “haste, inadvertence, or design.” Thus the   “public good” is “evidently and palpably sacrificed.” The presidential veto, moreover, “will often have a silent and unperceived, though forcible, operation.” 

Federalist 74

This is the eighth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV.  Attention is given to A) IV b, the commander-in-chief clause, and A) IV c, the power to pardon and reprieve clause. Concerning the former, Hamilton observes “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”  As to the latter, the Congress may not always be in session; “there are often critical moments when a well-timed offer of pardon…may restore tranquillity to the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Federalist 75

This is the ninth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV.  Attention is given to A) IV d, the treaty making power.  Hamilton claims that this “is one of the best digested and most unexceptional parts of the plan.”  Human nature demonstrates the wisdom of 1) joining the Senate and the President in the “possession of the power,” and 2) excluding the “fluctuating,” and “multitudinous,” House. Furthermore, it is republican to have 2/3 of the Senators present concur, rather than require the concurrence of 2/3 of the whole Senate.    

Federalist 76

This is the tenth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV.  Attention is given to A) IV e, the appointing power. He argues that the mode proposed advances the premise that “the true test of a good government is its aptitude and tendency to produce a good administration.” The critical question is why require “the co-operation of the Senate” in what is traditionally viewed as an exclusively executive function?  “Their concurrence would have a powerful, though in general, a silent operation.  It would be an excellent check upon a spirit of favoritism in the President.” Furthermore, “it would be an efficacious source of stability in the administration.” 

Won’t the Senate simply “rubber stamp” Presidential nominations? “This supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence.” We should “view human nature as it is, without either flattering its virtues or exaggerating its vices.”  The Senate will live up to its assigned duty.

Federalist 77

This is the last of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay concludes the coverage of A) IV, the issue of energy, and turns, finally, but in only a concluding paragraph, to B) how these ingredients can be combined with others that are safe in the republican sense? 

A) Hamilton claims that an added advantage “to the stability of the administration,” is that the consent of the Senate “would be necessary to remove as well as to appoint.” He approves of “this union of the Senate with the President” in the nomination, appointment, and removal process. He endorses the exclusion of the House from the process:  “A body so fluctuating and at the same time so numerous can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all when it is recollected that in half a century it may consist of three or four hundred persons.” 

B) In Federalist 70, Hamilton introduced B) and stated that there were “two ingredients of republican safety”: I “A due dependence on the people,” and II “A due responsibility.”  Here he says, “The answer to this question has been anticipated in the investigation of its other characteristics.”  

Federalist 78-82:  The Judiciary

Federalist 78.

This is the first of five essays written by Hamilton on the Judiciary. In this essay, we also find the fifth of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is the “ Protest of the Minority of the Convention of Pennsylvania, Martin’s speech, etc .” 

β 1. “We proceed now to an examination of the judiciary department.” 

β 2.  The coverage of the judiciary is in two parts: A) “the manner of constituting it” and B) “its extent.”

β 3.  There are three A) “objects.”  “1 st .  The mode of appointing the judges. 2 nd . The tenure by which they are to hold their places.  3 rd . The partition of the judicial authority between different courts and their relations to each other.” [See Federalist 81.]

β 4. A) 1 st .  See Federalist 76 and 77. 

β 5. A) 2 nd .  “As to tenure by which the judges are to hold their places: this chiefly concerns [1] their duration in office, [II] the provisions for their support, [III] the precaution for their responsibility.”  The remainder of the essay covers the case for [I] their duration in office. {Article III, Section 1.}

β 6. “The standard of good behavior…is certainly one of the most valuable of the modern improvements in the practice of government.”  It helps the judiciary to resist “legislative encroachment.” β 7-β 17 makes the case for “permanent tenure” to resist the encroachment of the legislature.

β 7. The judiciary “will always be the least dangerous to the political rights of the Constitution….It may truly be said to have neither FORCE nor WILL but merely judgment.”

β 8.  The judiciary is “the weakest of the three departments of power,” and its “natural feebleness” needs fortification.  

β 9.  “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority.”  It is the “duty” of the courts, “to declare all acts contrary to the manifest tenor of the constitution void.”  

β 10.  The opposition thinks that this “doctrine would imply a superiority of the judiciary to the legislative power.”  

β 11.  But “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”

β 12.  The courts are an “intermediate body between the people and the legislature” to keep the latter within their proper sphere. The legislature cannot be “the constitutional judges of their own powers.” The Constitution is the fundamental law and it belongs to the courts to “ascertain its meaning” and to secure “the intention of the people” over “the intention of their agents” whenever there is “an irreconcilable variance between the two.”  “The interpretation of the laws is the proper and peculiar province of the courts.” Since the Constitution is the “fundamental law,” it therefore belongs to the Supreme Courts “to ascertain its meaning.” 

β 13.  This does not “suppose a superiority of the judicial to the legislative power.”

β 14.  “In determining between two contradictory laws…it is the province of the courts to liquidate and fix their meaning and operation.  So far as they can, by any fair construction” they ought to “be reconciled to each other.” When “impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other.”

β 15.  “Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

β 16.  “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure for the constitutional intentions of the legislature…. The courts must declare the sense of the law,” and not “be disposed to exercise WILL instead of JUDGMENT.”

β 17. “The permanent tenure of judicial offices” is critical if the courts are to be “the bulwarks of a limited Constitution against legislative encroachments.”

β 18. “Permanent tenure” can help to resist the “ill humors” that may momentarily “lay hold” of the people to violate the Constitution.  “As faithful guardians of the Constitution,” the courts must restore the norm of “more deliberate reflection.”

β 19. “Permanent tenure” can also help to resist legislative efforts to injure “the private rights of particular classes of citizens, by unjust and partial laws.”

β 20. “Permanent tenure” is needed so that courts provide “inflexible adherence to the rights of the Constitution, and of individuals.”

β 21. “Permanent tenure” is needed to attract individuals with the “requisite integrity,” and the “requisite knowledge” to handle the “variety of controversies which grow out of the folly and wickedness of mankind.”  But “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”

β 22. “Good behavior” for justices has the added benefit of securing “good government.”

Federalist 79

This is the second of five essays written by Hamilton on the Judiciary.  This essay continues A) 2 nd .  “As to tenure by which the judges are to hold their places,” and covers: “[II] the provisions for their support,” and [III] the precaution for their responsibility.” {Article III, Section 1.}

With respect to [II] we should remember “that in the general course of human nature, a power over a man’s subsistence amounts to a power over his will .” A “fixed provision for their support” enhances judicial independence. And to be impeached “for malconduct” is the constitutional “precaution” for securing “their responsibility.” He rejects the call for a mandatory retirement age. 

Federalist 80

This is the third of five essays written by Hamilton on the Judiciary.  He turns to B) “the proper extent of the federal judiciary.”  He examines, first, the five “proper objects” of the judicial authority. He then turns to an examination of the cases and controversies covered by the judicial power {Article III, section 2} and especially it extension “to all cases, in law and equity, a) arising under the (sic) Constitution and b) the laws of the United States .”  As a “sample” of a), as distinguished from b), Hamilton includes “all the restrictions upon the authority of the State legislatures.” {See Article I, Section 9.} Thus the federal courts ought to “overrule” state laws that are “in manifest contradiction of the articles of Union.”  What are “equity causes” that “can grow out” of a) and b)?  “There is hardly a subject of litigation,” that does not involve “ fraud, accident, trust , or hardship .” And if “inconveniences” should emerge in the implementation of the various judicial powers, “the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”  

Federalist 81

This is the fourth of five essays written by Hamilton on the Judiciary.  In Federalist 78, we learned that three A) “objects” to the coverage of the judiciary. Here, he turns to A) 3 rd . “The partition of the judicial authority between different courts and their relations to each other.” {Article III, Sections 1 and 2.} 

He examines the claim that the Supreme Court will become the supreme branch because it has the power “to construe the laws according to the spirit of the Constitution.” There is “not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution.”  It is true, however, that “the general theory of a limited Constitution” requires the courts to over turn a law in “evident opposition” to the Constitution.  But it is a “phantom” to expect judicial supremacy: judicial “misconstructions and contraventions of the will of the legislature may now and then happen, but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” A second “phantom” is that the Congressional power to constitute “inferior courts” is intended to abolish state and local courts. And there is a third “phantom,” that the clause, “the Supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make,” is not an attempt to abolish the trial by jury at the state level.  Hamilton observes that the original jurisdiction of the Supreme Court “is confined to two classes of cases.”  

Federalist 82

This is the last of five essays written by Hamilton on the Judiciary. He continues A) 3 rd . “The partition of the judicial authority between different courts and their relations to each other.” Here, he discusses exclusive and concurrent jurisdictions between the general and state governments and invites the reader to consult Federalist 32.  In the process, he reiterates Madison’s remarks about “liquidation” in Federalist 37: It’s “time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.”  

Federalist 83-84: Five Miscellaneous Republican Issues

Federalist 83.

1) Hamilton discusses the objection that “has met with most success”:  “ the want of a constitutional provision for the trial by jury in civil cases.”  This is the longest essay in The Federalist and the last of six essays in The Federalist that identify specific authors of Antifederalist writings.  Here, it is the “absolutely senseless” Report of the Pennsylvania Minority and the propositions of the Massachusetts Convention on trial by jury.  

The issue turns on how to interpret silence.  The Constitution provides for “the trial by jury in criminal cases,” but “is silent in respect to civil.” It is “absurd,” says Hamilton, to interpret “this silence” as “an implied prohibition of trial by jury in regard to the latter.”  There is a “material diversity” from state to state concerning trial by jury in civil cases for “the plan of the convention” to have imposed one uniform standard on all the states. Besides, the opposition grossly exaggerates “the inseparable connection between the existence of liberty and the trial by jury in civil cases.”  

Federalist 84

This second longest essay in The Federalist contains twenty-four paragraphs. Hamilton begins with a discussion of 2) “the most considerable” of the “remaining objections”:  “the plan of the convention contains no bill of rights.” This is contained in β 1- β 12.  He then turns in β 13-β 15 to 3) the location of the seat of government. An “extraordinary” objection is 4) “the want of some provision respecting the debts due to the United States.” This is covered in β 16. He turns, finally, in β 17- β 24, to the claim that 5) “the adoption of the proposed government would occasion a considerable increase of expense.”  

β 1, 2. “The most considerable of these remaining objections is that 2) the plan of the convention contains no bill of rights.” True, New York doesn’t have a “prefixed” bill of rights, but the opposition claim that the New York Constitution contains the “substance” of a bill of rights “in the body of it” and “adopts” the British “common and statute law.”  

β 3. “The Constitution proposed by the convention contains…a number of such provisions.” 

β 4.  He lists eight rights located “in the body” of the U. S.  Constitution: a) The post impeachment-conviction provision of Article I, Section 3; b) four rights from Article I, Section 9—the privilege of habeas corpus, no bill of attainder, no ex-post facto laws, and “no title of nobility;”–and c) three rights from Article III, Sections 2–the provision for trial by jury in criminal cases and the two parts of the treason clause. 

β 5. These are “of equal importance with any which are to be listed found in the constitution of this State.”  Blackstone, for example, thinks “the habeas corpus act” is “the BULWARK of the British Constitution.”

β 6. The prohibition on titles of nobility “may truly be denominated the cornerstone of republican government.”

β 7. The claim that the New York Constitution “adopts, in their full extent, the common and statute law of Great Britain” is simply false.  “They are expressly made subject ‘to such alterations and provisions as the legislature shall from time to time make concerning the same.’”

β 8.  “Bills of Rights are, in their origin, stipulations between kings and their subjects.” The “We the people” clause in the Preamble to the Constitution “is a better recognition of popular rights than volumes of those aphorisms which make the principle figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a constitution of government.” 

β 9, 10. “Bills of Rights…are not only unnecessary in the proposed Constitution but would even be dangerous.”  

β 11. A declaration protecting liberty of the press is “impracticable.”  We must seek its security “on public opinion, and on the general spirit of the government.” 

β 12. “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” It meets two vital objects of a bill of rights: it 1) declares and specifies “the political privileges of the citizens in the structure and administration of the government,” and 2) defines “certain immunities and modes of proceeding, which are relative to personal and private concerns.”

β 13-15.  Hamilton answers objection 3) that the citizens will lack the “proper knowledge” to judge the conduct of a government so far removed from the people. This will be “overbalanced by the effects of the vigilance of the State governments” on the conduct of  “persons employed in every department of the national administration.”  Moreover, “the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.”

β 16. An “extraordinary” objection is 4) “the want of some provision respecting the debts due to the United States.” This, says Hamilton, is simply “inflammatory.”

β 17- β 24.  He turns, finally, to the claim that 5) “the adoption of the proposed government would occasion a considerable increase of expense.” But look what we gain from the increase:  a new and improved system of government; “it is certain that a government less expensive would be incompetent to the purposes of the Union.”  One observer suggests that “the dreaded augmentation of expense” will spring from “the multiplication of offices under the new government.” This is ridiculous since there are few new offices.  True, the judges will be an added expense, but this will be of no “material consequence.” And this will “counterbalance” the decline in the expenses of a) Congress since “a great part” of their business “will be transacted by the President,” and b) the State legislatures since “the Congress under the proposed government will do all the business of United States themselves, without the interference of the State legislatures.”  But won’t there be an increase in the expense of running the House with an augmentation in the number of representatives? “No.” Currently, there are “sixty-five persons, and probably at no future period by above a fourth or a fifth of that number.”   

Part VII 

Federalist 85: analogy to state governments and added security to republicanism.

Hamilton informs his readers that “that there would appear still to remain for discussion two points {outlined in Federalist 1}: ‘the analogy of the proposed government to your own State constitution.’ And ‘the additional security which its adoption will afford to republican government, to liberty, and to property.’`’ These topics have been “exhausted” in previous essays. “I never expect to see a perfect work from imperfect man.” Surely the plan of the convention is more perfect than what we have under the Articles? Let’s not call for another convention.  Furthermore, isn’t it better to “obtain subsequent amendments than previous amendments to the Constitution?”  Remember, “seven out of the thirteen States” have already ratified the plan of the convention.  

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1.6: The Federalist Papers and Constitutional Government

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What is Federalism?

Federalism is the system of government in which sovereignty (the authority and power to govern over a group of people) is constitutionally divided between a central, or national government, and individual regional political units generally referred to as states. It is based upon democratic rules and institutions in which the power to govern is shared between national and state governments, creating a federation.

Debating a Federal System: The Federalist Papers

The most forceful defense of the new Constitution was The Federalist Papers , a compilation of 85 anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles were written by Alexander Hamilton and James Madison. They examined the benefits of the new Constitution and analyzed the political theory and function behind the various articles of the Constitution. Those opposed to the new Constitution became known as the Anti-Federalists. They generally were local rather than cosmopolitan in perspective, oriented to plantations and farms rather than commerce or finance, and wanted strong state governments and a weak national government. The Anti-Federalists believed that the Legislative Branch had too much power, and that they were unchecked. Also, the Executive Branch had too much power, they believed that there was no check on the President. The final belief was that a Bill of Rights should be coupled with the Constitution to prevent a dictator from exploiting citizens. The Federalists argued that it was impossible to list all the rights and those that were not listed could be easily overlooked because they were not in the official Bill of Rights.

What Were The Federalist Papers and Why are They Important?

The Federalist Papers were a series of essays by John Jay, Alexander Hamilton, and James Madison written for the Federalist newspaper.

The convention in Virginia began its debate before nine states had approved the Constitution, but the contest was so close and bitterly fought that it lasted past the point when the technical number needed to ratify had been reached. Nevertheless, Virginia's decision was crucial to the nation. Who can imagine the early history of the United States if Virginia had not joined the union? What if leaders like George Washington, Thomas Jefferson, and James Madison had not been allowed to hold national political office? In the end Virginia approved the Constitution, with recommended amendments, in an especially close vote (89-79). Only one major state remained; the Constitution was close to getting the broad support that it needed to be effective.

Perhaps no state was as deeply divided as New York. The nationalist-urban artisan alliance could strongly carry New York City and the surrounding region while more rural upstate areas were strongly Anti-Federalist. The opponents of the Constitution had a strong majority when the convention began and set a tough challenge for Alexander Hamilton, the leading New York Federalist. Hamilton managed a brilliant campaign that narrowly won the issue (30-27) by combining threat and accommodation. On the one hand, he warned that commercial down state areas might separate from upstate New York if it didn't ratify. On the other hand, he accepted the conciliatory path suggested by Massachusetts; amendments would be acceptable after ratification.

The debate in New York produced perhaps the most famous exploration of American political philosophy, now called The Federalist Papers . Originally they were a series of 85 anonymous letters to newspapers that were co-written by Alexander Hamilton, James Madison, and John Jay. Together, they tried to assure the public of the two key points of the Federalist agenda. First, they explained that a strong government was needed for a variety of reasons, but especially if the United States was to be able to act effectively in foreign affairs. Second, they tried to convince readers that because of the "separation" of powers in the central government, there was little chance of the national government evolving into a tyrannical power. Instead of growing ever stronger, the separate branches would provide a "check and balance" against each other, so that none could rise to complete dominance.

The influence of these newspaper letters in the New York debate is not entirely known, but their status as a classic of American political thought is beyond doubt. Although Hamilton wrote the majority of the letters, James Madison authored the ones that are most celebrated today, especially Federalist No. 10.

Here Madison argued that a larger republic would not lead to greater abuse of power (as had traditionally been thought), but actually could work to make a large national republic a defense against tyranny. Madison explained that the large scope of the national republic would prevent local interests from rising to dominance and therefore the larger scale itself limited the potential for abuse of power. By including a diversity of interests (he identified agriculture, manufacturing, merchants, and creditors, as the key ones), the different groups in a larger republic would cancel each other out and prevent a corrupt interest from controlling all the others.

Madison was one of the first political theorists to offer a profoundly modern vision of self-interest as an aspect of human nature that could be employed to make government better, rather than more corrupt. In this, he represents a key figure in the transition from a traditional Republican vision of America, to a modern Liberal one where self-interest has a necessary role to play in public life.

A Closer Look at the Federalist Papers

Let’s closely examine just three of these important documents.

Federalist #10: In this, the most famous of the Federalist Papers , James Madison begins by stating that one of the strongest arguments in favor of the Constitution is the establishment of a government capable of controlling the violence and damage caused by factions which Madison defines as groups of people who gather together to protect and promote their special economic interests and political opinions (basically political parties and special interests today). Although these factions are at odds with each other, they frequently work against the public interest and infringe upon the rights of others.

Both sides of the Constitutional debate (federalists AND anti-federalists alike) have been concerned with the political instability that these rival factions may cause. Under the Articles of Confederation, the state governments have not succeeded in solving this problem. As a matter of fact, the situation has become such a problem that people have become disillusioned with all politicians and blame the government for their problems (sound familiar?). Consequently, a form of popular government that can deal successfully with this problem has a great deal to recommend it.

Federalist #39: This essay was written to explain and defend the new form of Republican government which the Founding Fathers envisioned to be different than any other “Republic” in Europe. In the mind of Madison and the other founders, no other form of government is suited to the particular genius of the American people; only a Republican form of government can carry forward the principles fought for in the Revolution or demonstrate that self-government is both possible and practical.

Madison sees a Republican form of government as one which derives its powers either directly or indirectly from the people (which distinguishes this new form of republicanism from others that had been used in Europe). This form is administered by people who hold elected public office for a limited period of time or during good behavior. He goes on to say that no government can be called Republican that derives its power from a few people or from a favored and wealthy class (as many governments in Europe did). The Constitution conforms to these Republican principles by ensuring that the people will directly elect the House of Representatives. Additionally, the people indirectly select the senators and the president. Even the judges will reflect the choice of the people since the president appoints them, and the Senate confirms their appointment. The president, senators, and representatives hold office for a specified and limited term. Judges are appointed for life ­but subject to good behavior. The constitutional prohibition against granting titles of nobility and the guarantee to the states that they shall enjoy a republican form of government is further proof that the new government is Republican in nature.

These facts do not satisfy all people. Some people claim that the new Constitution destroyed the federal aspect of the government by taking away too much power from the states. Opponents (anti-federalists) believed that the framers established a national (unitary) form of government where the citizens' are directly acted upon by a central government as citizens of the nation rather than as citizens of the states. But the proposed government (a federal republic) would contain both national and federal characteristics and would allow for a sharing and careful balance of powers between the national government and the states. The principle of federalism (a division of power between the states and the national government) is integrated into the new Constitution and reflected in the suggested method of ratification. The delegates to the ratifying conventions would directly participate (through voting) as citizens of their states, not as citizens of the nation. Madison also points out that this new form of federal republic is also reflected in the structure of the Senate in which the states are equally represented. Since the states would retain certain exclusive and important powers, this is to be considered further proof of the federal nature of the proposed government.

Madison goes on to concede that the new Constitution does exhibit national (central government) features. Madison finishes by reaching the conclusion that the government would be BOTH national and federal. In the operation of its powers, it is a nation; in the extent of its power, it is federal.

Federalist # 51: In this essay, James Madison explains and defends the checks and balances system which would prove to be one of the most important protections and limits included in the Constitution. Each branch of government would be constructed so that its power would have checks over the power of the other two branches. Also, each branch of government is to be subject to the authority of the people who are the legitimate source of authority for the United States government and its new Constitution.

Madison also goes on to discuss the way a republican government can serve as a check on the power of factions, and the tyranny of the majority which would limit the ability of the majority from imposing their will on the minority unjustly (like a tyrant or despot imposing his will over his subjects).

Madison’s conclusion is that all of the Constitution’s checks and balances would serve to preserve liberty by ensuring justice. Madison explained, “Justice is the end of government. It is the end of civil society.” Madison’s political theory is based on Montesquieu’s The Spirit of the Laws on the Founders .

The Impact of the Federalist Papers

The Federalist Papers had an immediate impact on the ratification debate in New York and in the other states. The demand for reprints was so great that one New York newspaper publisher printed the essays together in two volumes entitled The Federalist, A Collection of Essays Written in Favor of the New Constitution, By a Citizen of New York . By this time, the identity of "Publius," never a well-kept secret, was pretty well known. The Federalist , also called The Federalist Papers , has served two very different purposes in American history. The 85 essays succeeded in persuading doubtful New Yorkers to ratify the Constitution. Today, The Federalist Papers help us to more clearly understand what the writers of the Constitution had in mind when they drafted that amazing document over 200 years ago.

From these essays, Americans have received a gift from our Founding Fathers. Whenever we, as a nation, need to consider what the original intent and meaning of the Constitution was more than 200 years ago, we simply can go back to these documents and remind ourselves exactly what our founders were thinking and what was intended without any question as to meaning or design.

Study/Discussion Questions

For each of the following terms, write a sentence which uses or describes the term in your own words.

1. Why has federalism been such a major source of conflict throughout the history of the United States?

2. Why are the Federalist Papers important to our Constitutional system?

3. Compare the views of the Federalists with those of the Anti-Federalists.

4. How do Federalist Papers 10, 39 and 51 contribute to our understanding of the Constitution and the issue of federalism?

5. How would you describe the impact of the Federalist Papers on American government today? What do you think our governmental system would be like without them?

Federalist 10: Democratic Republic vs. Pure Democracy

 by natalie bolton and gordon lloyd, introduction:.

To assist teachers in teaching the ratification of the U.S. Constitution, Professor Gordon Lloyd  has created a website in collaboration with the Ashbrook Center at Ashland University on the Federalist and Antifederalist Debates . Professor Lloyd organizes the content of the debates in various ways on the website. Two lesson plans have been created to align with two of the most noted essays high school students are encouraged to read, Federalist 10 and Federalist 51 . Within each lesson students will use a Federalist Paper as their primary source for acquiring content.

Guiding Question:

Why can a republic protect liberties better than a democracy?

Learning Objectives:

After completing this lesson, students should be able to: Define faction in Federalist 10 . Analyze present day issues and determine if they qualify as a faction as defined in Federalist 10 . Explain why Madison advocated for a democratic republic form of government over a pure democracy in Federalist 10 .

Background Information for the Teacher:

The years were 1787 and 1788. Along with the debate over the Constitution that was taking place in the state legislatures, an “out-of-doors” debate raged in newspapers and pamphlets throughout America’s thirteen states following the Constitutional Convention over the Constitution that had been proposed. Origin of The Federalist The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal , edited by Thomas Greenleaf, 2) Independent Journal , edited by John McLean, 3) New York Advertiser , edited by Samuel and John Loudon, and 4) Daily Advertiser , edited by Francis Childs. Initially, they were intended to be a twenty essay response to the Antifederalist attacks on the Constitution that were flooding the New York newspapers right after the Constitution had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27, George Mason’s objections were in circulation and the Brutus essays were launched on October 18. The number of essays in The Federalist was extended in response to the relentless, and effective, Antifederalist criticism of the proposed Constitution. McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist appeared between January 11, and April 2, 1788. On May 28, McLean took Federalist 37-77 as well as the yet to be published Federalist 78-85 and issued them all as Volume 2 of The Federalist . Between June 14 and August 16, these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet . The Status of The Federalist One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see The Federalist as incoherent; didn’t Hamilton and Madison disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last part of an essay was being written as the first part was being typed. 1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover, because Hamilton and Madison parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with certain haste doesn’t mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is actually the final draft of an essay that originated in Madison’s Vices in 1787, matured at the Constitutional Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay’s essays focus on foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and Hamilton tends to focus on the institutional features of federalism and the separation of powers. I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The Federalist now acquired a “timeless” and higher purpose, a sort of icon status equal to the very Constitution that it was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his readers to contemplate the great difficulty of founding. Federalist 38 , echoing Federalist 1 , points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the Constitution as the work of “demigods,” and The Federalist “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive to readers of every generation. Authorship of The Federalist A second question about The Federalist is how many essays did each person write? James Madison—at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, “Publius.” So one answer to the question is that how many essays each person wrote doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the iconic status of The Federalist , there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison’s last contribution was Federalist 63 , leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the Virginia ratifying convention . There is also widespread agreement that Madison wrote the first thirteen essays on the great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have persuasively been resolved in favor of Madison. Outline of The Federalist A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak. Martin Diamond was one of the earliest scholars to break The Federalist into its component parts. He identified Union as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last forty-nine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The first three topics outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the Articles of Confederation , and 3) the need for a government at least as energetic as the one proposed. The opening paragraph of Federalist 15 summarizes the previous fourteen essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.'” So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly, Federalist 23 opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed… is the point at the examination of which we are now arrived.” Thus Federalist 15-22 covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism. The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in Federalist 1 : 4) the Constitution conforms to the true principles of republicanism , 5) the analogy of the Constitution to state governments, and 6) the added benefits from adopting the Constitution. Let’s work our way backward. In Federalist 85 , we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist . I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51, reserving the appellation Republicanism for essays 52-84. This substitution is similar to the “Merits of the Constitution” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with Federalist 52 . Taken from the Introduction to The Federalist .

Preparing to Teach this Lesson:

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself with Madison’s Notes on the Constitutional Convention of 1787 on the following days outlined below. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama . Additionally, the teacher should cover content related to Federalist and Antifederalist debates that occurred prior to Federalist 10 being published. Three activities are outlined below and should be implemented in order. Activity 1: Define faction in Federalist 10 . Activity 2: Analyze present day issues and determine if they qualify as a faction as defined in Federalist 10 . Activity 3: Analyzing Federalist 10 using APPARTS. For all activities, students will use Federalist 10 . To assist students in reading Federalist 10 , a paragraph-by-paragraph summary has been provided by Gordon Lloyd.

Analyzing Primary Sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets . Finally, History Matters offers pages on “ Making Sense of Maps ” and “ Making Sense of Oral History ” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities:

Activity 1: Define faction in Federalist 10

Time required for activity: In class activity 20 minutes.

The teacher will open day one of the lesson by sharing that Federalist 10 is one of 85 essays advocating for the ratification of the United States Constitution. Federalist 10 was written by James Madison and published on November 22, 1787 under the pseudonym Publius. In this essay, Madison addresses the question of how to guard against “factions,” or groups of citizens, with interests that are contrary to the rights of others or the interests of the community as a whole. Madison defined factions as groups of citizens with opinions, passions, or interests contrary to the interests of others or the well-being of others. These groups of citizens saw factions as irreconcilable differences that could not be negotiated or compromised (i.e. war, divorce).

This activity serves as an introduction to the lesson focusing on student understanding of the word faction. The teacher will ask students to move to a designated corner of the room based on their interest in completing one of the following products: illustration/drawing, mime/monument, Public Service Announcement (PSA), and written flyer. Each corner of the classroom will represent a product.

The teacher will tell students they have 10 minutes to create their designated product. All students will respond to the same question, “What is a faction?” Students will answer the question as an individual, in a small group, or whole group based on their interests and readiness. Students should use any resources they have available to assist in completing the activity. Students will then be asked to share their products with the class.

The teacher will then debrief the activity with students as they complete a verbal and visual word association on faction as a reflection activity ( see handout ). The teacher can use this completed task as a formative assessment for student understanding of the meaning of faction.

Activity 2: Factions and Current Issues

Time required for activity: 20 minutes To assist students in understanding factions that are present today, students will evaluate and discuss eight present day issues and determine if they qualify as a faction, as defined by Madison in Federalist 10 . Students will be asked to rate each issue on a three point scale with the anchors agree and disagree. The midpoint of the scale will read, don’t know. Teachers should give students the Current Issues Spectrum handout and ask them to read and rate the eight issues followed by an explanation. The teacher should make a poster for each of the current issues and have students place a mark and determine if the current issue is or is not a faction. Students can mark with a dot, post-it note, or marker. After students make their decisions, the class should discuss why they believe the issue is or is not a faction. The teacher should wrap-up the class discussion by asking students, “If the government has to make decisions on how to address the current issue, is it better to have every individuals voice be heard on every current event issue or is it better to have a representative from each of the anchors on the scale of each issue share their opinion? Are voices more powerful if they come from a large group of people together or from people who share the same ideas but live far apart from one another?

Activity 3: Interpreting and Evaluating Federalist 10

Time required for activity: In class reading assignment and completing an APPARTS graphic organizer, one 45 minute class period. Students may complete individually or in small groups. The teacher should remind students that Federalist 10 is one of 85 essays advocating for the ratification of the United States Constitution. Federalist 10 was written by James Madison and published on November 22, 1787 under the pseudonym Publius. In this essay, Madison addresses the question of how to guard against “factions,” or groups of citizens, with interests that are contrary to the rights of others or the interests of the community as a whole.

APPARTS Graphic Organizer

To help students understand the main ideas that emerged from Federalist 10, ask students to read Federalist 10 and complete the APPARTS graphic organizer handout . Students will use the APPARTS strategy to explain why James Madison advocated for a democratic republic form of government over a pure democracy in Federalist 10. Students may complete this task individually or in small groups.

Note: APPARTS is a strategy often used in Advanced Placement courses to analyze primary sources.

USING APPARTS TO ANALYZE PRIMARY SOURCE DOCUMENTS

To understand history or politics it is essential that you learn to critically examine significant primary source documents.

APPARTS is an “easy to remember” acronym for the following:

AUTHOR Who created the source? What do you know about the author? What is the author’s point of view?

PLACE AND TIME Where and when was the source produced? How might this affect the meaning of the source?

PRIOR KNOWLEDGE Beyond information about the author and the context of its creation, what do you know that would help you further understand the primary source? For example, do you recognize any symbols and recall what they represent?

AUDIENCE For whom was the source created and how might this affect the reliability of the source?

REASON Why was this source produced at the time it was produced?

THE MAIN IDEA What main point is the source trying to convey? What is the central message of the document?

SIGNIFICANCE Why is this source important? What inferences can you draw from this document? Ask yourself, “So what?” What should a student of history or politics take away from the analysis of this document?

Students may read the full-text of Federalist 10 or they can read a paragraph-by-paragraph summary written by Gordon Lloyd.

Depending on student content vocabulary readiness the teacher may need to review vocabulary used in Federalist 10. A teacher resource has been created using the Federalist 10 summary to review vocabulary using a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling, during reading (guided practice) and after reading (guided practice).

Assessment:

In 4-5 paragraphs, using your APPARTS analysis, write a reply to James Madison explaining if you agree or disagree with his perspective on the best form of government for the United States to protect individual liberties.

Extending the Lesson:

Extension 1: Compare how Madison discusses factions in Madison’s Vices , his June 6th speech during the Constitutional Convention of 1787, and Federalist 10. Extension 2: Do you think that our government today effectively guards against factions? Why or why not? Explain. Extension 3: Do you think that if a government official went about gaining public support using the methods Madison did to ratify the Constitution, would they work into today’s society? Why or why not? Do you think this is good or bad? Why or why not?

Related EDSITEment Lesson Plans:

• The Federalist Debates: Balancing Power between State and Federal Governments

Selected Websites:

• James Madison, Federalist 10
• James Madison, Federalist 51

Standards Alignment:

• CIVICED (9-12) I What are Civic Life, Politics, and Government?
• CIVICED (9-12) II What are the Foundations of the American Political System?
• CIVICED (9-12) III How Does the Government Established by the Constitution Embody the Purposes, Values, and Principles of American Democracy?
• CIVICED (9-12) V What are the Roles of the Citizen in American Democracy?
• NCSS-10 Civic ideals and practices. Citizenship in a democratic republic.
• NCSS-4 Individual development and identity.
• NCSS-5 Individuals, groups, and institutions.
• NCSS-6 Power, authority, and governance.

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How Many Federalist Papers Are There? 85!

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How many Federalist Papers are there? What do the papers discuss, and why are they important?

The Federalist Papers are made up of 85 essays. The essays discuss the need for the Union, the new Constitution, and how it compares to the Articles of Confederation.

If you’re wondering “how many Federalist Papers are there?” then keep reading!

How Many Federalist Papers Are There?

The Federalist Papers are a unique window into the minds of the men who drafted the Constitution and founded the United States. How many Federalist Papers are there in the collection of essays? This series of 85 essays, originally published at the time of the raging debate over ratification, make the case for a stronger national government and urge the adoption of the Constitution. This is one of the most important documents in American history, revealing what the Founding Fathers thought about human nature, civil society, and the relationship between government and liberty. 

How Many Federalist Papers Are There on the Need for the Union?

The adoption of the proposed Constitution was necessary for the preservation of the Union and the safeguarding of the liberties won during the Revolutionary War. Indeed, the successful ratification of the Constitution was a great moral and philosophical test for the young nation. Crucial questions hung in the balance. Were human beings capable of designing a government that properly protected liberties and promoted national welfare? Or were they destined to devolve into despotism and disunion?

The Failures of the Articles of Confederation

In the last chapter, we made the case for the preservation of the Union, illustrating why it was crucial for the security, liberty, and prosperity of the American people.

In this chapter, we will analyze why maintaining the Articles of Confederation was totally at odds with the goal of preserving that Union. To do this, we will need to explore the specific weaknesses of the Articles and why Publius believed it was necessary to scrap them entirely and replace them with the new United States Constitution.

Powers of the New Government

How many Federalist Papers are there that discuss powers of the new government? Having established the failures of the old system of government, we’ll use this chapter to outline the principles of the new Constitution that had been drafted at Philadelphia in 1787. In particular, we’ll analyze the specific purposes the new government was designed to achieve with regard to the core functions of national administration:

• National defense 
• Regulating foreign commerce and making treaties
• Overseeing interstate commerce

General Principles of the New Constitution

Given the obvious failures of the Articles of Confederation, there was a clear need for reform. But no mere revision would suit the needs of the moment. For, as we’ve seen, the defects of the Articles had afflicted all confederate governments going back to the days of ancient Greece. They were beyond salvation because the entire system of government they created was inherently unworkable; they needed to be discarded and replaced wholesale.

How Many Federalist Papers Are There on the Structure of the New Constitution ?

So far, we’ve outlined general principles of the new Constitution and made the case for why it was such an improvement over the ineffective Articles of Confederation. We’ve also discussed the sharing of powers between the federal government and the states.

Now, we’re going to pivot our analysis to the structure of the federal government itself. In this chapter, we’ll explore:

• How the Constitution separates power within the federal government between the executive, legislative, and judicial branches;
• How the system of checks and balances was designed to keep any of the branches from growing too powerful at the expense of the other branches; and 
• The specific powers and functions of each of the branches and their constituent parts, examining how they’re elected and what their responsibilities are.

In this chapter, we’ll continue our analysis of the structure of the new federal government. In particular, we’ll outline the main functions and responsibilities of the presidency and examine the role of the federal judiciary in the new constitutional system. We’ll also look at the important issue of why the original draft of the Constitution contained no bill of rights—and what its supporters and detractors thought about this omission.

Essays Written by Each Author

The essays that comprise The Federalist Papers were published under the collective pseudonym of “Publius.” Most readers at the time of publication did not know who the authors were or who wrote which of the essays.

How many Federalist Papers are there that were written by each author? While historians are still not completely certain about the authorship of each essay (and it has long been a subject of dispute in the academic community), there is a general scholarly consensus for the following attribution:

• Alexander Hamilton (51 essays: 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85)
• James Madison (29 essays: 10, 14, 18–20, 37–58 and 62–63)
• John Jay (5 essays: 2–5 and 64)

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An avid reader for as long as she can remember, Rina’s love for books began with The Boxcar Children. Her penchant for always having a book nearby has never faded, though her reading tastes have since evolved. Rina reads around 100 books every year, with a fairly even split between fiction and non-fiction. Her favorite genres are memoirs, public health, and locked room mysteries. As an attorney, Rina can’t help analyzing and deconstructing arguments in any book she reads.

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The federalist papers: author identification through k-means clustering.

The Federalist Papers are a collection of 85 articles and essays written in the latter half of 1780 by Alexander Hamilton, James Madison, and John Jay under the pseudonym “Publius” to promote the ratification of the United States Constitution. Hamilton chose “Publius” as the pseudonym under which the series would be written - the authorship at the time of publication was a closely guarded secret.

Following Hamilton’s death in 1804, a list he wrote became public, which attributed a majority of the papers to himself, including some that seemed more likely the work of Madison (No. 49–58 and 62–63). The truth of who wrote the papers is still a little murky - there is general consensus on who wrote each paper, but unfortunately the truth has been lost to the annals of time.

A significant amount of prior research has been done on the Federalist Papers, including The Disputed Federalist Papers: SVM Feature Selection via Concave Minimization , Case Study: The Federalist Papers , and the seminal Inference in an Authorship Problem by Frederick Mosteller and David L. Wallace. These papers do the topic much more justice to the subject than I can in a blog post.

My goal is to recreate the results found by Mosteller and Wallace through modern statistical methods - namely K-Means clustering and TFIDF.

Data Gathering

The first step was to retrieve and clean the data. Luckily all the papers are in the public domain (and a piece of American History!), so they’re hosted by the Gutenberg Library in a raw text document here .

I did some data processing to clean up all the collection into it’s constituent papers:

I manually moved each paper into it’s respective authors folder and cleaned up the Gutenberg header/footer. John Jay only wrote 4 papers (2, 3, 4, and 5), but then fell ill and contributed only one more essay, Federalist No. 64, to the series. For the purposes of this paper I discount him as having authored any of the disputed papers, as current historical consensus says that they were written by either Hamilton or Madison.

The disputed papers were papers 49 through 58 and 62 and 63, for a total of 12 of the 85. Now we could start training our model on the data.

Initial Attempts

This being my first foray into the world of unsupervised NLP, I wanted to get a good feel for prior work on author attribution. I read a lot of papers, articles, and blog posts to get an intuition on how to get started. I put some of my favorites in the Resources and Prior Work section below. Note that because we have a (semi) ground truth, supervised learning would be a better approach - however, this was a learning exercise, and I wanted to see if I could replicate the results in an unsupervised manner.

I decided to go with 3 features - lexical similarity in sentence structure, lexical similarity in punctuation, and syntactic similarity.

I imported all the definitive Madison and Hamilton papers and created my original K-Means fit.

K-Means Clustering

K-means clustering aims to partition n observations into k clusters in which each observation belongs to the cluster with the nearest mean, serving as a prototype of the cluster. This results in a partitioning of the data space into Voronoi cells. For our example we’ll have 68 observations (papers) into 2 clusters (2 authors, Madison and Hamilton).

Once the data has been converted into workable features, we can fit them onto a 2-cluster model. This is unsupervised - we are effectively just pouring in our (ideally) significant data and telling it that there are two distinct sets within it, and to try and extricate them.

Feature Sets

Feature sets are what we’ll use as indicators - we need to transform our text into machine-workable data based on criteria we select.

Lexical Similarity

We first tokenize each paper with tokens = nltk.word_tokenize(single_paper_text.lower()) - this gives us an array of lowercase words with adjoined punctuation. Then we extract just the words with words = word_tokenizer.tokenize(single_paper_text.lower()) .

Our goal is two-fold - the first is to get a straightforward measure of the average number of words per sentence, and the second is to somehow score the lexical diversity of the paper.

We can arrive to a rough estimate of the lexical diversity by taking the vocabulary (number of unique words) divided by the total number of words. As an example, take the following snippet:

First we’d tokenize it to ["The", "man", "went", "to", "the", "other", "man's", "house"] and then split it into just words - ["the", "man", "went", "to", "the", "other", "man", "house"] .

The number of unique words is 7, while the total number of words would be 8. The lexical diversity score would be 7/8 (0.875). As you can see this is a crude measure of lexical diversity - ideally, a more advanced model would also take into account word rarity and length. However, on a large enough training set in which our two authors have comparable speech patterns it should be enough to distinguish them.

Lexical Similarity - Punctuation

This feature is also fairly straightforward - we count the average number of times they use a semicolon, a colon, and a dash in their writing.

Syntactic Similarity

NLTK has a function for part of speech labeling, and our feature vector is comprised of frequencies for the most common part of speech tags - ‘NN’, ‘NNP’, ‘DT’, ‘IN’, ‘JJ’, and ‘NNS’ (full explanation of what each of these means is here ).

We’re effectively looking for patterns in their habits of speech - whether they often say “Noun comma noun” or “adverb verb comma noun”, etc.

Putting it all together

Once we’ve defined the feature generators, we can put it all together.

We generate an array and large string with all known papers.

Next we generate the feature sets for the known papers:

As well as the feature set for the unknown:

Finally, we predict the authorship for each of the disputed papers:

Note: M = Madison, H = Hamilton

The models predict that 10 of the 12 papers were written by Madison.

The results mirror those found in the 1960s Mosteller and Wallace. There does seem to be some disagreement on a few papers, and our classifier labels papers 49 and 50 as Hamilton’s, but overall the results seem fairly accurate!

All the code in this article (as well as the dataset) can be found here . The feature sets seem fairly good - the only one that I believe isn’t up to par is the Lexical Features - Punctuation. It feels too rudimentary and naive right now- I’ll probably take a stab at improving it some point in the future.

Overall this was a fun introduction to statistical methods and k-means clustering.

If it looks like I did anything obviously wrong or have the wrong intuition about anything, please don’t hesitate to reach out!

Update 7/25/18

Jon Miller, from the University of Akron, replied with the following:

[Your blog post] led to a quick question: what evidence do we have that these men did their own punctuation? It’s my understanding that until about the Civil War most publications were submitted as handwritten documents. Someone in the printer’s office then did the manual labor of adding the “points.” In the decades before the Civil War there was popular demand for books that described general rules–Edgar A. Poe wrote that no such book existed. And the ones that appear to have been the most popular were popular with typesetters. Plus there are a lot of jokes and warnings in newspaper editorial columns to the effect of “if we cannot read your handwriting, do not complain if we guess incorrectly.” There are exceptions and these papers are so important, it may well be the case that H and M reviewed printed proofs for the book edition and corrected the points. But the default, I would imagine, would have been that they let some dirty typo do that work. And so if two or more people did the pages, there might be two or three styles. And they did not set up pages sequentially – one man might have done 4, 16, 28, and 40 while another did 5, 17, 29, and 41. They would count words and draw lines in the manuscript to determine which sections would fall on which pages in the final product.

This is an interesting problem - it’s entirely possible that the punctuation feature is inaccurate, and that the punctuation added in each paper was done by different copy editors or someone in the printers office.

I invite any one who is a Madison or Hamilton historian to reach out if you know anything about this.

Additional Resources and Prior Work

• Textual Analysis of the Federalist Papers
• Arbitrary Authorship Attribution
• The Disputed Federalist Papers: SVM Feature Selection via Concave Minimization
• Case Study: The Federalist Papers
• Inference in an Authorship Problem

JonLuca at 22:06

Bangor Daily News

Maine news, sports, politics, election results, and obituaries

There’s a long history of restrictions on gun rights in America

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Steve Ball of Windsor, a retired colonel, spent 28 years on active service in the U.S Army. During his service he served in the 1st and 7th Special Forces Group (Airborne) in the U.S., Central America and Asia. His last duty station was in Hanoi as the U.S. Defense Attache to Vietnam.

It seems like this discussion on the Second Amendment and gun rights goes around and around and nothing is ever accomplished. One might be cynical and believe, for some, that’s the entire purpose of the merry-go-round argument. I believe, if nothing else, we should have an honest, historically and factually based discussion on gun rights.

To have an honest discussion one must consider all aspects of the Second Amendment. What does it mean for society as a whole to allow unfettered access to guns of nearly all types? Is it of any concern to society that harm is being waged upon innocent people at the cost of preserving individual rights of gun owners? Does the “state” have a right to impinge on individual rights to preserve broader safety?

I believe the old argument that unrestricted gun rights is a right bestowed on Americans by the Constitution is not at all accurate. If one were to read the Federalist Papers it would quickly become evident that limitations to rights are purposefully embedded in the Constitution. 

Federalist 29 comments on the Constitution and militias. It focuses on militias because, as the Constitution was written, it would be militias that would protect this young nation, not a standing army. As Alexander Hamilton noted in 1788, most new Americans did not have the time to participate in a standing army, they had farms to tend to. To take farmers from their responsibilities in the fields would hurt the growth of the nation. It was for this reason that the Second Amendment phrasing was written the way it was; “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In fact, under original interpretation, neither Black nor Indigenous peoples were allowed to possess arms because they were not to be in militias.

So, gun rights have been limited and taken away in some instances, throughout our history. The fact is, that until the landmark 2008 Supreme Court case District of Columbia v. Heller , previous Supreme Court cases had ruled that the right of individual citizens to bear arms existed only within the context of participation in a militia.

A recent letter to the editor called for protecting gun rights as an essential aspect of our “constitutional heritage.” If one were to protect our constitutional heritage, the state would limit our ownership and use of guns to participation in a militia. I agree with the conclusion that we should lean on our constitutional heritage when considering gun rights. Finally, to claim, as was done previously, that people should rise up to “make our voices heard and defend the freedoms that define us as a nation” gives the impression that any effort to regulate gun ownership is an existential threat to our identity as a free nation. This does not reflect the laws and rights laid out in the Constitution, the Federalist Papers or even the vast majority of Supreme Court case precedent.

If we haven’t learned anything since the mass shooting in Lewiston last October, I suppose we are destined to suffer similar tragedies.

Yes, it is time to speak up about gun rights in Maine.

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Federalist Senior Editor John Daniel Davidson’s new book, Pagan America: The Decline of Christianity and the Dark Age to Come , offers a sobering assessment of the threats to the American way of life as religiosity declines.

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In 2010, sociologist James Davison Hunter, famous for, among other things, popularizing the term “culture war” provocatively argued in To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World that conservative Christian attempts to restore Christian values on American society were misguided, if not harmful.

Such efforts to “redeem America,” argued Hunter, not only hadn’t worked but would never work, both because they represented an erroneous grasp of how cultures change, and because they distracted the faithful from their real task as Christians. Instead, Christians should pursue what Hunter termed “faithful presence,” by focusing on living authentically Christian lives in our families, communities, and spheres of influence, rather than programmatic political or cultural solutions.

Almost 15 years removed from Hunter’s book, things look quite a bit gloomier for Christianity in America. Over that period, the number of religiously unaffiliated adults has almost doubled to 28 percent ; weekly church attendance rates have dropped from about 40 percent to 30 percent ; and 80 percent of American adults believe religion’s influence on public life is declining. De-Christianizing trends are particularly salient among younger generations , who are less likely than older Americans to believe the government should protect religious liberty. Almost half of Gen Z-ers think the First Amendment should not protect hate speech (which, according to many Americans , includes religious criticism of LGBT identities and behaviors).

We inhabit an America less friendly to Christianity than was the case halfway through Obama’s first term as president. Various political, cultural, and demographic trends suggest that antipathy will only grow in the years to come. In Pagan America: The Decline of Christianity and the Dark Age to Come , Federalist Senior Editor John Daniel Davidson offers an even more pessimistic perspective: We’re already in a post-Christian society that is paganizing (or re-paganizing, to take the long historical view) in ways that will make life increasingly difficult and dangerous for American Christians.

From Pagan Exploitation to Christian Human Dignity

The historical narrative grade-school and collegiate students learn today portrays pre-modern societies across the world living in peaceful symbiosis with nature… until they were brutally defeated, if not destroyed by an intolerant Christian civilization. Davidson relates a number of historical anecdotes proving how blinkered this story is. Whether we are talking about the ancient societies of the Mediterranean, pagan northern Europe, or indigenous America, all demonstrated a profound disregard for (or exploitation of) the weak and vulnerable. Davidson cites the Vikings, Aztecs, and 19th-century kingdom of Benin as civilizations engaging in ritual human sacrifice to appease angry, bloodthirsty gods, but there are plenty of others.

Judaism and then Christianity repudiated such societies, built as they were on power, fear, and the fulfillment of base sensual desires. It was the church that rejected the common Roman practice of abandoning ( if not murdering ) unwanted children, stopped human sacrifice in northern Europe, and discouraged polygamy in the Americas and Africa.

Citing Tom Holland’s popular book Dominion , Davidson writes: “Human rights, equality, care for the poor, mercy for the condemned, refuge for the persecuted, charity for the marginalized and downtrodden: these were never self-evident truths.” Rather, “they are unmistakably Christian ideas that rely on specifically Christian doctrines, without which they are unintelligible.” Obviously, Christian societies were by no means perfect and were often hypocritical, but it’s undeniable that they ushered in a paradigmatic shift via their understanding of the dignity of the human person.

This was no less true of the culture of the founders, who, though coming from a variety of religious traditions, recognized the need for the maintenance and propagation of religion and morality for the survival of the republic, something that can be found across their letters, including in the Federalist Papers . Indeed, the establishment of religion continued at the state and local level for many years after the signing of the Constitution, indicating that the framers did not intend pure religious indifferentism or a strict separation of church and state.

In his telling, Davidson departs from the postliberal thesis popular with some conservatives (and particularly Catholics ) that the problems with classical liberalism we see today were “baked into the cake,” so to speak, of our constitutional republic, but are rather an aberration. (Given postliberalism’s popularity, I wish Davidson would have engaged more with its arguments.)

When the Pro-Religion Wheels Fell Off

Despite the founders’ intentions, Davidson identifies trends that, observable in the 19th century and accelerating in post-World War II America, undermined the nation’s Christian identity. Several Supreme Court decisions are emblematic of this shift. Cantwell v. Connecticut (1940) in its forbidding of the “determination by state authority as to what is a religious cause” effectively mandated a strict state religious neutrality, imposed national secularism, and rendered government incapable of defining what is and is not a religion. Everson v. Board of Education (1947) decreed, “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa.” Lemon v. Kurtzman (1971) gave us the “lemon test”: If a government action 1) lacks a “secular purpose,” 2) has the “primary effect of promoting or disparaging religion,” or 3) excessively “entangles” the government in religious matters, then it violates the Establishment Clause.

Yet, as Davidson ably argues, secular laws and institutions are never purely religiously neutral — they will always make moral claims originating from some conception of right and wrong and will coerce citizens into what the state deems the “correct” behavior. As our culture’s self-understanding of Christianity declines, the secular regime’s tensions and conflicts with various Christian institutions increase.

This explains, for example, the state’s coercive tactics against churches during the height of the pandemic, forcing them to remain closed for months under penalty of law because they provided “nonessential” services. Of course, as we all observed, there were plenty of hypocritical double standards when it came to enforcement of Covid policies, given the kid gloves authorities employed toward race-related protests.

Such contradictions lead to Davidson’s most interesting and provocative thesis: that an increasingly secular America is not ushering in a rational, neutral, and indifferent regime, but rather a revitalized form of paganism. Indeed, that irrationalism is on full display in the growing popularity of superstitious beliefs such as horoscopes, crystals, tarot, occultism, wiccanism, and an unwavering faith in “the science” even when what “the science” declares is reversed only a short time after it was considered dogma . But Davidson is just getting started here.

He argues that neo-paganism is visible across our polis. Abortion and euthanasia, for example, are new forms of human sacrifice; transhumanism and transgenderism reflect man’s attempt to usurp God’s authority over nature. Moreover, warns Davidson, if minors have the autonomy to decide their own “gender,” what’s stopping our paganizing establishment from also claiming that minors have the autonomy to pursue sexual relations with whomever they choose? Artificial intelligence, in turn, serves as a “godlike” artifice, a “Promethean power” to be worshiped.

What’s a Christian to Do?

For now, the persecution of Christians in America has largely been restricted to ostracism and censorship. Davidson projects that to change, “through mandatory reeducation, the loss of parental rights, fines and financial penalties, and even imprisonment.” Indeed, there are already signs of this, including government persecution of Christian businesses, leveraging laws to shutter Christian foster care services, FBI targeting of pro-life activists, and federal collaboration with social media companies to restrict freedom of speech. In light of these trends, Christians must gird themselves for a “long persecution and a long fight.”

Echoing Rod Dreher and his famous “Benedict Option,” Davidson writes:

The primary task of American Christians in the generations to come will therefore be the preservation and propagation of the faith at all costs. And the costs will be high. Yes, that will require being prepared to be poorer and more marginalized, but it will also require being prepared to be arrested, imprisoned, and martyred.

Yet Davidson argues for something different than Dreher, what he calls a “Boniface Option,” after the medieval missionary to Germanic peoples who so aggressively combatted paganism and its rituals that he was ultimately martyred. This is a more combative, political approach than Dreher’s. Though Davidson acknowledges that Washington and other major cities are likely a lost cause, he exhorts readers to take back local institutions such as city councils, public libraries, and school boards. Christians, he urges, should be banning drag performances and pornographic and pro-trans books from l­­­­ocal libraries and schools, and applying economic pressure by “refusing to patronize businesses and brands that embrace pagan morality.”

It’s true: Christians cannot simply escape into their little ghettoes. The Christian religion cannot avoid witnessing in the public square, and its adherents, whether they be doctors, lawyers, teachers, government employees, business owners, or landscapers, cannot help but have their work informed by their faith.

That battle, even if it is a losing one, must be fought in every place inhabited by faithful Christians, an exemplar of Hunter’s “faithful presence” in this disastrously post-Christian society. I have no doubt the result will be the making of many saints. Whether it is also the making of a revitalized Christian society in America remains to be seen.

• American Christianity
• book review
• Christianity
• John Daniel Davidson
• John Davidson
• Pagan America
• Pagan America: The Decline of Christianity and the Dark Age to Come
• Religious Liberty

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How the G.O.P. Molded the Arizona Court That Upheld the Abortion Ban

Arizona’s former governor, Doug Ducey, expanded the court to seven justices. All solid conservatives, they upheld a 160-year-old abortion ban that presents a political risk to Republicans.

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By David W. Chen and Michael Wines

When a split Arizona Supreme Court upheld a Civil War-era abortion ban this week, it rejected the argument that the 160-year-old statute had been overtaken by decades of newer laws regulating the procedure, including a recent law banning abortion after the 15th week of pregnancy.

But to better understand the court itself, look no further than the year 2016, when Gov. Doug Ducey, a Republican, successfully expanded the court’s membership from five to seven justices.

By the time Mr. Ducey left office at the end of 2022, he had easily eclipsed the state record for judicial appointments to various courts. He had also changed the nominating process by which judges are selected, essentially giving more power to the governor.

And as an ardent conservative who frequently railed against big government and championed restrictions on immigration, he also shaped an all-Republican State Supreme Court into one that had an even more libertarian, prosecutorial and conservative activist bent.

As a result, all four of the justices who were part of the majority decision in the abortion case on Tuesday were appointed by Mr. Ducey, while the two justices who dissented over any attempt to revive the earlier law were appointed by Mr. Ducey’s Republican predecessor, Jan Brewer.

Mr. Ducey’s imprint might have been even more pronounced, had one of his appointees, Justice William G. Montgomery, not recused himself in response to complaints about a 2017 Facebook post in which he said that Planned Parenthood , one of the parties in the case, was “responsible for the greatest generational genocide known to man.”

The four judges behind reviving the abortion ban included Clint Bolick, a nationally known legal activist who helped advance an array of conservative litigation as a co-founder of the Institute for Justice , a right-leaning public interest law firm based in Washington. He oversaw similar cases in Arizona at the conservative Goldwater Institute before being appointed by Mr. Ducey to the Supreme Court in 2016.

“It’s very much a Ducey court,” said Scott Bales, a former chief justice of the Arizona Supreme Court, and a Democrat, who retired in 2019.

With the overturning of Roe v. Wade by the U.S. Supreme Court in 2022, the issue of abortion access has been left in the hands of the states. That has translated into a significant shift in power to courts at the state level, especially in states where the procedure has been limited or banned. Some of them, like Arizona, are dusting off statutes that are decades old for guidance.

And in a presidential election year where abortion is likely to play a prominent role, this new stream of cases has meant that more attention is being paid to the individual justices who now sit on the bench, and how they got there.

Douglas Keith, senior counsel at the Brennan Center for Justice, said that Arizona stood out as “one of the more aggressive and more successful efforts” orchestrated by governors and legislatures to assert more control over states’ higher courts.

“The court’s makeup today is the product of a multiyear effort to lock in a conservative majority on the Arizona Supreme Court, just as the state’s politics were moving to the left,” said Mr. Keith, who is also a founding editor of State Court Report , which examines state constitutions and courts.

But Daniel Scarpinato, a former chief of staff to Mr. Ducey, said it was clear that the court’s ruling this week was based on a close reading of the law, not politics.

“The Arizona system to the greatest degree possible has drained the politics out of the judiciary,” he said. “You’ll never do it completely, but I haven’t seen a system or process that’s better than the one we have.”

The latest ruling has roiled state politics and left politicians of both parties scrambling for legislative remedies ahead of the November elections, a situation that appears to have left even Mr. Ducey with some misgivings.

“The ruling today is not the outcome I would have preferred,” he wrote on X . He encouraged officials “to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate.”

In the past, Arizona’s highest court typically included Republicans and Democrats who had attended law schools in Arizona as well as East Coast institutions like Harvard and Yale. Several had clerked for Supreme Court justices, including Mr. Bales, who clerked for Justice Sandra Day O’Connor, an Arizona native.

Things changed when Mr. Ducey expanded the court. Proponents argued that the courts, in one of the nation’s fastest-growing states, needed more judges to handle a growing caseload. But critics said that the new appointments had allowed the Republican state leadership to expand its influence.

The current court is made up largely of mainstream conservatives, many with backgrounds as prosecutors in Arizona and ties to the Federalist Society, a conservative legal organization that advocates for a close adherence to the text of the U.S. Constitution as it was originally constructed.

Many legal analysts, both liberal and conservative, said there appeared to be a solid legal foundation for Tuesday’s ruling and an attempt to apply the State Legislature’s own recent decisions on the abortion issue.

“I don’t see it as an ideology-driven decision; I think what the majority is saying is, ‘We’re trying to be faithful to what the Arizona Legislature really intended,’” said Barbara Atwood , a law professor at the University of Arizona. “They don’t care what the Legislature intended in 1864. They care what the Legislature intended in 2022.”

Of the seven members of the bench, who face mandatory retirement at age 70, Justice Bolick is probably the only one who is widely known outside Arizona.

Justice Bolick, a 66-year-old political independent, is a conservative libertarian who is “in his own camp” ideologically, said Mr. Scarpinato, who was working in the governor’s office when the appointment was made.

The justice’s vote this week to uphold the 1864 abortion law could signal political trouble for his wife, Shawnna Bolick, a Republican member of the State Senate who was appointed to fill a vacancy and could face a tight battle for election in November. Hours after the ruling on Wednesday, Ms. Bolick called in a post on X for the State Legislature to “find common ground of common sense” and repeal the law.

Justice Montgomery drew fire from liberal critics when he was named to the bench in 2019 over his policies as county attorney and chief prosecutor in Maricopa County, where he was seen as an ally of the divisive former sheriff, Joe Arpaio. The state’s judicial nominating commission rejected his first application to join the court, citing “patterns of misconduct” during his stint as prosecutor, but Mr. Ducey named him to a vacant seat months later after replacing some members of the commission.

The calls for Justice Montgomery to recuse himself from the abortion case cited not only the inflammatory social media post but his pursuit as county attorney of a lawsuit seeking to limit abortions, a case that was rejected by the U.S. Supreme Court in 2013.

Justice John R. Lopez IV, who wrote the majority opinion this week, worked in the U.S. attorney’s office in Phoenix and later as Arizona solicitor general before becoming the first Latino member of the court in 2017. James P. Beene, a former Maricopa County deputy county attorney and state appeals court judge who joined the court in 2019, is the second Latino justice.

Justice Kathryn H. King, one of two women on the court and the only one to uphold the 1864 law, was a top legal aide to Mr. Ducey when he was governor. She worked at two prominent Phoenix law firms before joining the court in 2021.

The two dissenters include the court’s current chief justice, Robert M. Brutinel, 66, and the justice who will succeed him in July, Ann A. Scott Timmer. Chief Justice Brutinel, named to the court in 2010, was a Superior Court judge in deeply conservative Yavapai County whose tenure has brought a marked degree of consensus in the court’s opinions, something he has said he was striving to achieve.

Justice Timmer, who was named to the court in 2012, previously spent a dozen years on the state Court of Appeals, including three years as chief judge.

Arizona is one of roughly 20 states where judges must face the voters to keep their jobs.

Under the system, voters must decide to retain or reject judges two years after their appointments, and every six years after that. Of 1,500 judges who have gone through the process since the mid-1970s, only six have lost — and three of those losses occurred in 2022.

No Supreme Court justice has lost, but Justice Montgomery came close, in 2022, garnering 55 percent of the vote. Republican legislators, who control the statehouse, are now considering a proposal to make it more difficult to remove Supreme Court justices except in extraordinary circumstances.

The two members of the court who face retention elections this year are Justice Bolick and Justice King.

Given the likelihood that Arizona voters will already be weighing a ballot initiative to enshrine the right to an abortion in the Constitution, those judicial races may well attract more attention than usual, said Paul Weich, a lawyer who writes the newsletter Arizona’s Law . “I would anticipate that the abortion access initiative coalition is going to be urging people to not only vote for the initiative but to vote for no on retention for those two justices.”

Kirsten Noyes contributed research.

David W. Chen reports on state legislatures, state level policymaking and the political forces behind them. More about David W. Chen

Michael Wines is a national correspondent, writing about voting and election issues. He is based in Washington, D.C. More about Michael Wines

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NPR defends its journalism after senior editor says it has lost the public's trust

David Folkenflik

NPR is defending its journalism and integrity after a senior editor wrote an essay accusing it of losing the public's trust. Saul Loeb/AFP via Getty Images hide caption

NPR is defending its journalism and integrity after a senior editor wrote an essay accusing it of losing the public's trust.

NPR's top news executive defended its journalism and its commitment to reflecting a diverse array of views on Tuesday after a senior NPR editor wrote a broad critique of how the network has covered some of the most important stories of the age.

"An open-minded spirit no longer exists within NPR, and now, predictably, we don't have an audience that reflects America," writes Uri Berliner.

A strategic emphasis on diversity and inclusion on the basis of race, ethnicity and sexual orientation, promoted by NPR's former CEO, John Lansing, has fed "the absence of viewpoint diversity," Berliner writes.

NPR's chief news executive, Edith Chapin, wrote in a memo to staff Tuesday afternoon that she and the news leadership team strongly reject Berliner's assessment.

"We're proud to stand behind the exceptional work that our desks and shows do to cover a wide range of challenging stories," she wrote. "We believe that inclusion — among our staff, with our sourcing, and in our overall coverage — is critical to telling the nuanced stories of this country and our world."

NPR names tech executive Katherine Maher to lead in turbulent era

She added, "None of our work is above scrutiny or critique. We must have vigorous discussions in the newsroom about how we serve the public as a whole."

A spokesperson for NPR said Chapin, who also serves as the network's chief content officer, would have no further comment.

Praised by NPR's critics

Berliner is a senior editor on NPR's Business Desk. (Disclosure: I, too, am part of the Business Desk, and Berliner has edited many of my past stories. He did not see any version of this article or participate in its preparation before it was posted publicly.)

Berliner's essay , titled "I've Been at NPR for 25 years. Here's How We Lost America's Trust," was published by The Free Press, a website that has welcomed journalists who have concluded that mainstream news outlets have become reflexively liberal.

Berliner writes that as a Subaru-driving, Sarah Lawrence College graduate who "was raised by a lesbian peace activist mother ," he fits the mold of a loyal NPR fan.

Yet Berliner says NPR's news coverage has fallen short on some of the most controversial stories of recent years, from the question of whether former President Donald Trump colluded with Russia in the 2016 election, to the origins of the virus that causes COVID-19, to the significance and provenance of emails leaked from a laptop owned by Hunter Biden weeks before the 2020 election. In addition, he blasted NPR's coverage of the Israel-Hamas conflict.

On each of these stories, Berliner asserts, NPR has suffered from groupthink due to too little diversity of viewpoints in the newsroom.

The essay ricocheted Tuesday around conservative media , with some labeling Berliner a whistleblower . Others picked it up on social media, including Elon Musk, who has lambasted NPR for leaving his social media site, X. (Musk emailed another NPR reporter a link to Berliner's article with a gibe that the reporter was a "quisling" — a World War II reference to someone who collaborates with the enemy.)

When asked for further comment late Tuesday, Berliner declined, saying the essay spoke for itself.

The arguments he raises — and counters — have percolated across U.S. newsrooms in recent years. The #MeToo sexual harassment scandals of 2016 and 2017 forced newsrooms to listen to and heed more junior colleagues. The social justice movement prompted by the killing of George Floyd in 2020 inspired a reckoning in many places. Newsroom leaders often appeared to stand on shaky ground.

Leaders at many newsrooms, including top editors at The New York Times and the Los Angeles Times , lost their jobs. Legendary Washington Post Executive Editor Martin Baron wrote in his memoir that he feared his bonds with the staff were "frayed beyond repair," especially over the degree of self-expression his journalists expected to exert on social media, before he decided to step down in early 2021.

Since then, Baron and others — including leaders of some of these newsrooms — have suggested that the pendulum has swung too far.

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New York Times publisher A.G. Sulzberger warned last year against journalists embracing a stance of what he calls "one-side-ism": "where journalists are demonstrating that they're on the side of the righteous."

"I really think that that can create blind spots and echo chambers," he said.

Internal arguments at The Times over the strength of its reporting on accusations that Hamas engaged in sexual assaults as part of a strategy for its Oct. 7 attack on Israel erupted publicly . The paper conducted an investigation to determine the source of a leak over a planned episode of the paper's podcast The Daily on the subject, which months later has not been released. The newsroom guild accused the paper of "targeted interrogation" of journalists of Middle Eastern descent.

Heated pushback in NPR's newsroom

Given Berliner's account of private conversations, several NPR journalists question whether they can now trust him with unguarded assessments about stories in real time. Others express frustration that he had not sought out comment in advance of publication. Berliner acknowledged to me that for this story, he did not seek NPR's approval to publish the piece, nor did he give the network advance notice.

Some of Berliner's NPR colleagues are responding heatedly. Fernando Alfonso, a senior supervising editor for digital news, wrote that he wholeheartedly rejected Berliner's critique of the coverage of the Israel-Hamas conflict, for which NPR's journalists, like their peers, periodically put themselves at risk.

Alfonso also took issue with Berliner's concern over the focus on diversity at NPR.

"As a person of color who has often worked in newsrooms with little to no people who look like me, the efforts NPR has made to diversify its workforce and its sources are unique and appropriate given the news industry's long-standing lack of diversity," Alfonso says. "These efforts should be celebrated and not denigrated as Uri has done."

After this story was first published, Berliner contested Alfonso's characterization, saying his criticism of NPR is about the lack of diversity of viewpoints, not its diversity itself.

"I never criticized NPR's priority of achieving a more diverse workforce in terms of race, ethnicity and sexual orientation. I have not 'denigrated' NPR's newsroom diversity goals," Berliner said. "That's wrong."

Questions of diversity

Under former CEO John Lansing, NPR made increasing diversity, both of its staff and its audience, its "North Star" mission. Berliner says in the essay that NPR failed to consider broader diversity of viewpoint, noting, "In D.C., where NPR is headquartered and many of us live, I found 87 registered Democrats working in editorial positions and zero Republicans."

Berliner cited audience estimates that suggested a concurrent falloff in listening by Republicans. (The number of people listening to NPR broadcasts and terrestrial radio broadly has declined since the start of the pandemic.)

Former NPR vice president for news and ombudsman Jeffrey Dvorkin tweeted , "I know Uri. He's not wrong."

Others questioned Berliner's logic. "This probably gets causality somewhat backward," tweeted Semafor Washington editor Jordan Weissmann . "I'd guess that a lot of NPR listeners who voted for [Mitt] Romney have changed how they identify politically."

Similarly, Nieman Lab founder Joshua Benton suggested the rise of Trump alienated many NPR-appreciating Republicans from the GOP.

In recent years, NPR has greatly enhanced the percentage of people of color in its workforce and its executive ranks. Four out of 10 staffers are people of color; nearly half of NPR's leadership team identifies as Black, Asian or Latino.

"The philosophy is: Do you want to serve all of America and make sure it sounds like all of America, or not?" Lansing, who stepped down last month, says in response to Berliner's piece. "I'd welcome the argument against that."

"On radio, we were really lagging in our representation of an audience that makes us look like what America looks like today," Lansing says. The U.S. looks and sounds a lot different than it did in 1971, when NPR's first show was broadcast, Lansing says.

A network spokesperson says new NPR CEO Katherine Maher supports Chapin and her response to Berliner's critique.

The spokesperson says that Maher "believes that it's a healthy thing for a public service newsroom to engage in rigorous consideration of the needs of our audiences, including where we serve our mission well and where we can serve it better."

Disclosure: This story was reported and written by NPR Media Correspondent David Folkenflik and edited by Deputy Business Editor Emily Kopp and Managing Editor Gerry Holmes. Under NPR's protocol for reporting on itself, no NPR corporate official or news executive reviewed this story before it was posted publicly.