The Federalist Papers
The Paradox of the Republic: A Close Reading of Federalist 10
In Federalist 10, James Madison posits that the greatest threat to government and to the public good lies in the oppression committed by majority factions. Madison defines a faction as “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 aggregate interests of the community.”  Factions will necessarily emerge due to the liberty afforded to citizens under the American Constitution and because the zeal for different opinions is “sown into the nature of man” (No. 10, 58). Thus, ‘Publius,’ the collective pen name of John Madison, Alexander Hamilton and John Jay, claims that the proposed constitution must guard against the effects of faction, rather than its causes. Madison argues that the republic will successfully guard against the tyrannical effects of faction due to two principles of the proposed system: representative government and the size and population of the union. Because representative government by itself is insufficiently equipped to prevent majority oppression, Madison includes the latter principle of large union size to increase its likelihood of success. Thus, the success of the former principle depends largely on the latter. Unfortunately, the realization of the latter principle affords more power to state governments, who are far more susceptible to the compulsion of majority factions.
Madison claims that the representative nature of a republic guards against the harmful effects of factionalism, but this republican virtue is almost entirely dependent on the quality of the elected representative. Unlike a pure democracy, a republic guards against the harmful effects of majority oppression because it will “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations” (No. 10, 152-156). The public voice pronounced by the representative may be more consonant to the public good than if pronounced by the people themselves, according to Madison. For this to be true, the representative must be incredibly perceptive to the needs of those he or she represents and must have the competence to determine what actions are in their ‘true interests.’ However, Madison warns that the opposite may be the case: republics are susceptible to men of sinister designs securing the requisite votes to gain power, and then betraying the interests of the people (No. 10, 162). Thus, all rests on the perceptiveness, competence and, most importantly, incorruptibility of the representatives to prevent majority oppression.
However, even the most perceptive and competent representative would be expected to act on behalf of the majority faction’s will. Due to The Federalist Paper’s lack of limits on the number of terms that may be served by representatives in any office, an official’s desire for election and reelection would lead them to act sycophantically toward the majority faction. This subservience to the majority faction would lead the representative to support the majority’s ‘temporary or partial considerations’, rather than the ‘true interests’ of the republic. Alexander Hamilton understands that representatives will espouse the desires of the people when he poses the question in Federalist 35, “Is it not natural that a man who is a candidate for the favour of the people and who is dependent on the suffrages of his fellow citizens for the continuance of his public honors should take care to inform himself of their inclinations and should be willing to allow them their proper degree of influence upon his conduct?” (No. 35, 152-156). While it is possible that a perceptive and incorruptible representative could succeed in establishing a compromise between the oppressive demands of the majority and the more impartial general will, such an approach would be less likely to secure the representative’s reelection. To continue his ‘public honors,’ the representative would be most disposed to allow the inclination of the majority faction to have its proper degree of influence upon his conduct. While Hamilton adds the prohibitive consideration that all officials and their posterity will be bound by the laws they pass, it still appears that the official would have more to gain than to lose by serving as a sycophant to the majority faction and could potentially secure a lifetime post through continual direct reelection from a majority faction voter base.
To maximize the success of representative government, Madison dictates in Federalist 10 that the republic must constitute a large number of citizens. Madison claims that because the same number of representatives will be needed regardless of the republic’s size, larger republics have a higher likelihood of possessing competent citizens to serve as their representatives. Likewise, more citizens will participate in the election process for each representative, which may diminish a demagogue’s ability to manipulate his citizenry. Thus, to prevent majority factions from oppressing minority factions, and to supplement the insufficient principle of representative government, Madison establishes large expanse as the second principle of the proposed republic.
While Madison proposes the necessity of a large republic to prevent majority oppression, he acknowledges the dangers of expanding the republic’s borders too far: “By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests” (No. 10, 181-183). This prompts Madison to level his final condition of the republic: all of the great and aggregate interests will be referred to the national, whereas the local and particular interests will be referred to the state legislators (No. 10, 186-187). According to Federalist 14, as the republic expands further and further, with both its geographic expanse and number of electors increasing, the representatives, who operate in federal government, would become less acquainted with those they represent. Madison reminds readers in Federalist 14 that when this occurs, more power will necessarily be afforded to the state governments: as the republic increases in size, “the subordinate [state] governments which can extend their care to all those other objects, which can be separately provided for, will retain their due activity and authority” (No. 14, 83-85). Therefore, as the republic expands and the representatives become less acquainted with their electors, more legislative decisions will be tasked to the state governments.
Unfortunately, state governments are far more susceptible to the oppression of majority factions than the federal government. State governments, by fault of their small size, are more vulnerable to the emergence of a faction that constitutes a majority of the whole. According to Madison, “the smaller the society… the fewer the distinct parties and interests, the more frequently will a majority be found of the same party” (No. 10, 191-194). Additionally, a smaller number of electors and candidates running for election at the state level increases the likelihood of unmerited or corrupt representatives winning elections. Incompetent or corrupt politicians are also more likely to serve sycophantically to the majority faction in order to secure their reelection. Given that a majority faction has an increased likelihood of emerging at the state level, and that state representatives are statistically less likely to be competent or incorruptible, majority oppression is extremely likely. In fact, Madison claims in the beginning of Federalist 10 that in many of the existing American constitutions (the state constitutions), “the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior forces of an interested and over-bearing majority” (No. 10, 17-20). It is rather ironic that the solution to the problem of majority oppression in state governments is Madison’s first principle of representative government, of which the success depends on Madison’s second principle of the republic’s large size, which inevitably refers significant pieces of legislation to state governments.
Madison claims to provide a “republican remedy for the diseases most incident to republican government” (No. 10, 226-227). Madison’s proposed republican constitution operates on two principles to temper the harmful effects of majority factions: representative government and large union size. The former principle by itself cannot entirely defend against the effects of majority faction oppression, especially due to the sycophancy expected of representatives seeking election or reelection. The insufficiency of representative government necessitates the inclusion of large union size to supplement the republic’s defense against factionalism’s effects. However, increasing the expanse of the republic necessarily places more matters of legislation under the state government’s jurisdiction, which severely increases the prospect of majority faction influence on all issues besides those “certain enumerated objects” (No. 14, 81) that fall under the care of the federal government. Thus, Publius proposes a republic whose ideal state lies in an intermediary position between a republic of small union size, inept representatives and fewer incidents of majority faction oppression at the state level, and a republic of large union size, competent representatives and more incidents of majority faction oppression at the state level.
 Hamilton, Alexander, John Jay, and James Madison. The Federalist. Ed. J.R. Pole. Indianapolis: Hackett, 2005. Print. No. 10, 31-34
Comparison of Federalist Paper 78 and Brutus XI
During the creation of the Constitution in 1787, Constitutional Framers were faced with the responsibility of crafting an improved court system after the failure of The Articles of Confederation. When analyzing the beginning stages of the judicial branch, we must necessarily look at the debates that took place between the Federalists and the Anti-Federalists during the Founding. While both sides had radically differing opinions on the power and function of the judiciary, both sides agreed a better system was needed than that which the Articles of Confederation provided. Between the Federalists and the Anti-Federalists, the most notable debate was the power of the court to declare laws unconstitutional. According to the proposed Constitution, judges were appointed for life and their court rulings were not to be reviewed by another government branch. As a result, Brutus fears the Supreme Court’s decisions would be “independent of heaven itself” in his essay Brutus XI. However, Alexander Hamilton claims the judiciary will always be “the least dangerous” because the courts have neither “force nor will but merely judgement.” As we know, the Constitution was ratified despite Anti-Federalist concerns. However, many of the fears expressed in Brutus XI are still valid today. As Brutus predicted, the Supreme Court has the ability to “mould the government into almost any shape they please” because there is no “power above them to control their decisions.”
In Federalist Paper 78, Alexander Hamilton attempts to explicate and clarify the structure of the judicial branch as proposed by the Constitution. In his examination of the judiciary, he addresses three main ideas: crucial independence of the federal courts from other branches, permanent appointments, and the relation of the judicial branch to other branches (establishing concepts of judicial review). Through his case for the judiciary, Hamilton insisted the courts must be empowered to strike down laws passed by Congress that it deems “contrary to the manifest tenor of the Constitution.” To begin his argument, he addresses the proposed life tenure of federal judges. According to the Constitution, federal judges are appointed by the government and carry their position for the remainder of their life, assuming they maintain “good behavior.” Acknowledging critic’s contrasting opinion, he explains life-long office holding is the most valuable asset to the judicial branch. For example, permanency exempts federal judges from political pressure and further disallows the executive and legislative branches from imposing upon judicial decisions. Furthermore, Hamilton believed very few people will have the competency and integrity to judge the laws, and those who are sufficiently adequate in their office should be retained instead of replaced. Realizing Anti-Federalists view the judiciary as a threat to their liberties, Hamilton affirms the judicial branch is easily “the weakest of the three departments of power,” and “will always be the least dangerous to the political rights of the Constitution.” Hamilton further explains the federal courts have neither the “sword” of the executive, who is commander in chief of the nation’s armed forces, nor the “purse” of the legislature, which approves all the tax and spending measures of the national government. Once again, according to Hamilton, the judiciary had “neither force nor will but merely judgment.” In short, because the court only has the power to judge, the judiciary relies on the other two branches to carry out its decisions. Interestingly, Hamilton acknowledges the possibility for courts to treat individuals unfairly, but claims “the general liberty of the people can never be endangered” as a result of the court’s weakness. Another critical point emphasizes the limited powers of the Constitution. He explains that such a “limitation of this kind can be preserved in practice no other way than through the medium of the courts of justice.” Essentially, the Constitution’s individual protections amount to nothing unless the courts have the power to declare laws in violation of constitutional provisions. Furthermore, he reiterates that the Constitution must be regarded as fundamental law. Continuing, he states that the Constitution represents the will of the people and the legislature can not reasonably replace its own will for the will of the people. Thus, it is necessary to possess a judicial branch that governs by the will of the people rather than that of legislators. Basically, Hamilton is saying neither branch is superior to another and all branches are inferior to the power of the people. As an example to consider judges as protection against legislative encroachment (otherwise known as judicial review), Hamilton suggests a situation where the public desire an unconstitutional law and the legislature likewise accommodates. Because the judiciary is independent from other branches, they are obliged to uphold the Constitution in the best interest of the general populous. For the remainder of his essay, Hamilton revisits and reinforces his argument for life-long appointments and judicial independence from other factions of government.
In Brutus XI, the author questions the authority of the proposed judiciary and voices Anti-Federalist concerns with this governmental branch. Up until this point, Brutus claims, the issue has insofar received little attention. In regard to the judicial branch, Brutus has three main concerns. Most importantly, he wanted judicial powers specifically outlined (claiming the Constitution was too vague on the subject), he then criticizes the inability for other branches to “check” the judiciary, and finally, he worries about the interference of politics within the court. To begin his essay, he laments over the complex terminology and confusing word choice used by the Framers to delegate powers to the judiciary. He further insists the distinction among cases arising under the Constitution is wholly unclear. With that being said, he asserts that judicial power will supersede the legislature in many cases because the court is given implicit power to interpret the meaning of the Constitution. As a result of the court’s power to interpret the Constitution, Brutus felt that the judiciary could do harm without power of the “purse of sword” mentioned in Federalist 78. As a whole, Anti-Federalists believed the judicial branch would ultimately undermine the legislature as well as the state government because judges would interpret the Constitution in a way to enhance their own power at the expense of individuals and state government. Brutus believed that because the judiciary’s powers are not strictly articulated, the court has the power to establish laws in favor of the government; and therefore, judges had the power to shape federal government indefinitely. To continue, Brutus also ponders the repercussions of life-long occupancy terms. Rightfully so, he questions if life-long terms will eventually reduce the United States into an aristocracy. Believing judicial power to be “altogether unprecedented in a free country,” Brutus questions why there is no authority above judicial rule. In addition, Brutus is concerned with the language of “equity” in Article III of the proposed Constitution. Not only does this section establish judicial review, but it also encourages courts to look at the “spirit of the law.” This, says Brutus, will lead to supremacy over other branches “because there is no power provided in the Constitution that can correct their errors, or control their adjudications.” As a whole, Brutus raises questions about judicial supremacy and warns against the shifting tide of federal court’s authority.
In regard to Federalist 78 and Brutus XI, the similarities and differences between the Federalists and the Anti-Federalists are unmistakable. During the Founding, one of the most prominent debates between Federalists and Anti-Federalists was the power of judges to declare laws unconstitutional. It is clear Brutus finds the idea of “judicial supremacy” troubling, as well as the Constitutional proposal of judges with lifetime tenure and the power of judicial review. Because judges were appointed for life and their decisions could not be reviewed by other branches, Brutus worried their decisions would be “independent of heaven itself.” However, Hamilton argues the court’s role is benign because they possess “force nor will but merely judgement,” and therefore will always be the “least dangerous branch.” To continue, in his argument, Brutus addresses a significant point from his opponents concerning what will occur if judges decide not to nullify unconstitutional laws, perhaps interpreting the Constitution to their own liking. In defense, Hamilton asserts that just because the courts are granted the ability to determine what laws mean does not suggest they are justified in substituting their personal will for that of Congress. While crafting the provisions of the judicial branch, the Founders has to decide if an independent judiciary with the power of judicial review would benefit the American people. While Hamilton and Brutus agreed upon an independent judiciary, they disagreed on the extent of its independence and the relationship between state and federal courts. Brutus believed the power of the federal courts would ultimately overtake state governments, but Hamilton viewed the courts as protecting individuals from legislative power. All in all, the debate over the “least dangerous branch” still continues today.
The Supreme Court has acquired today what some would refer to as “judicial supremacy.” As time has progressed, the court’s blatant and growing authority has reaffirmed Anti-Federalist concerns about the judicial branch having “no power above them to control their decisions.” The passivity of the other two branches (and even the American people) to allow the Court’s role to achieve such a superior role in the modern day continues to provoke questions about whether or not the judicial branch is still the “least dangerous.”
Manipulation of Individual Citizen Motivations in the Federalist Papers
As developed from the human’s historically survivalist quality, modern people tend to initially work for their own gain before considering or regarding others. People’s self-interest, whether a narcissistic trait or simply inherent one, is even more recognizable in times of conflict. Working by the assumption that people prioritize their own selfish interests and want to ensure the highest possible standard of living for themselves, Madison, Hamilton and Jay appealed to the public’s self-preserving nature in their famous Federalist Papers to convince citizens to ratify the Constitution.
In Federalist 10, Madison appeals to the public’s common fear of losing their newly-won liberties with a warning of the detrimental dangers of factions that would surely occur if the Constitution did not get ratified. He wrote, “When the majority is included in a faction, the form of popular government… enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens” (80). In such a diverse country containing so many different groups of people with varying concerns, the creators of this publication knew that Americans would be worried that a strong national government would have be able to take away their individual rights. However, Madison argues that without some sort of core authoritative power, a majority group would be able to overwhelm the rest of society and obtain their own desires, despite the potentially unfavorable effects to everyone else. This idea was meant to alarm citizens and push them to see the need for ratification; people would surely act in favor of a strong central government if they knew their needs may be disregarded without one. In a world in which individuals are motivated by personal gain, the writers knew it necessary to demonstrate how people’s needs may be lost in the shuffle of a quite populous new nation, should they fail to accept the Constitution.
Additionally, Madison recognized that people tend to view their own desires as more urgent and vital than those of others and used this understanding in his persuading process. He reveals this insight in his definition of a faction, which he states consists of “… 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” (78). Individuals, Madison implies, work to achieve their own goals without explicitly considering anyone else. It may seem acutely egotistical, and perhaps it is, but Madison saw it is as an innate feature of the human being. In a time when country was divided and Americans were confused and worried, playing on this quality seemed the best way for the Federalist authors to gain the appropriate attention from their audience members. Throughout the written work, Madison exploits this concept by continuously circling back to the idea that if the Constitution was ratified, everyone would be better off individually and as a nation.
In Federalist 1, Hamilton appealed to the public by using his status to convince people that he believed it was in the best interest of the individual readers to ratify the Constitution. He wrote “… in a matter of the utmost moment to your welfare by any impressions other than those which may result from the evidence of truth… I own to you that after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness” (35-36). In this instance, Hamilton is utilizing ethos to persuade the audience by referencing the extensive thought process that went into forming the opinion that ratification is best for the individual, which can be viewed as providing expert support. Further, he is taking advantage of his highly-regarded position in American political society to demonstrate why his opinion carries any significance at all.
Furthermore, the specific diction in the publication manipulates the self-preserving nature of individuals. For example, the use of phrases such as “personal security,” “every good citizen” and “personal liberty” greatly personalizes the passages for the readers. Interest spikes when people feel the topic applies to them, they feel a sense of salience, and are much more likely to closely follow the situation. Madison, Hamilton and Jay attempt to speak directly to the individual rather than the public in the Federalist Papers in order to severely amplify those levels of salience. The specificity of word choice in political articles is always a conscious decision by the authors, especially in a persuasive piece, and the writers deliberately wanted to connect directly with the readers in order to convince them of the necessity of ratification.
Moreover, the Federalists aimed to convince citizens to ratify the Constitution because they were aware that people are often prone to error, and a stable national government would decrease the severity of these individual oversights and failures. In Federalist 10, Madison explained “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have reciprocal influence on each other; and the former will be objects to which the latter will attach themselves” (78). Basically, Madison is acknowledging that people tend to do what they think is right even if it is far from it as it is usually best for them, and likely will not change their minds no matter what, since everyone usually thinks they are correct. In essence, an individual’s ignorance to keep an open mind and consider the ideas and opinions of others is derived from the attachment to opinions that form from the inclination for self-preservation. Establishing a secure and powerful federal government, the author suggests, would negate these individual transgressions and inaccuracies since a more experienced, informed and trained group would have overarching jurisdiction over policy-making and other impactful decisions.
Defense for the Judiciary: Hamilton’s Stance in Federalist Papers 80, 81, and Others
In writing the Constitution, very little was said by the founders about the judiciary branch, the powers of the Supreme Court, or the functions of law in general. To explain and provide detail to the broad statements presented in the Constitution on the subject, Alexander Hamilton created Federalist Papers 80, 81, 83, and 84. These four articles not only provided ample discussion about the exact workings of the judiciary, but served as a persuasive piece to defend the ideas presented in the Constitution, which had yet to be ratified. Hamilton was able to analyze the four sentences that make up Section III, Article II of the Constitution and create a lively discourse for the establishment of the Supreme Court, the checks on the Court, and the discussion about trial by jury, all while maintaining a passion and promotion for the single most influential document in american history.
Alexander Hamilton opens Federalist paper 80 with his argument for Congress’s format of the Judicial branch of government by defending the belief that a national judicial authority is a necessity for the success and security of the nation. The need stems from the idea that there must be a final voice in all legal disputes, or as Hamilton phrases it, “Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed”(Hamilton, 444). Yet to placate this issue, Article III, Section II of the Constitution merely establishes that a Supreme Court will exist, and lists the four times said court will maintain original jurisdiction. This lack of detail was a point of concern for many anti-federalists, who feared that a judiciary separate from the legislature would lead to a non-elected, tyrannical law making force, and the idea of a court that was “Supreme” with next to no Constitutionally described checks, did little to ease that fear. In both Federalist paper 80 and 81, Hamilton goes into great detail to educate the masses on what it is the Supreme Court will do. In detailing the few instances the Supreme Court will be granted original jurisdiction, as well as the need for the people to press for the Court’s appellate jurisdiction, and his further justification of a judiciary separate from the legislature, for the mere reason that, “The habit of [the judges] being continually marshaled on opposite sides will be too apt to stifle the voice both of law and of equity”(Hamilton, 452). This defense stymied a myriad of feelings of unease about this branch. This logical progression from one topic of debate to another surrounding the institution of the Supreme Court shows Hamilton’s methodical and verbose style of carefully dismantling the arguments of his opponents. As seen in the quoted text, Hamilton effectively focused his discussion on why the lack of these institutions would lead to chaos, placing an emphasis on the incompetency of the previous establishments instead of blindingly promoting the wonders of the new.
The emphasis on the need for change and for control is propagated in his following arguments as well. Federalist paper 81 continues to focus on the Supreme Court, but elects to decode what the court is not able to do, as opposed to the previous discussion of what they were capable of doing. Once again having only a small point of reference in the Constitution, Hamilton emphasises the Judicial branch’s lack of authority in regard to enforcing the decisions they declare, as well as the Supreme Court’s primary service being merely a court of appeals, instead of an all powerful law molding force. One of the primary concerns of those opposed to the new plan for a judiciary was that it would be allowed to interpret the laws made however they see fit, leading to an omnipotent force of the law, subject to reinterpret the spirit of law at any moment. Hamilton quells this concern as he claims, “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, or which gives them any greater latitude in this respect than may be claimed by the courts of every state.”(Hamilton, 450). According to Hamilton, the Supreme Court is not nearly so powerful as the anti-federalists claims it to be. Since there is no historical defense for this idea in America, Hamilton pulls from people’s dissatisfaction with the courts in Great Britain, claiming how the Constitution works to ensure that this court will never reach the corrupt levels of the lands across the ocean. Similar to the previous paper, Hamilton’s use of persuasion focuses on curing previous injustices, remedying already present issues, without claiming the new system infallible or falling back on more base forms of persuasion. His simple description of the checks, then focus on the past, makes his claims convincing because it makes no promise of perfect remedy, instead talks of change and of progress, without utopian philosophy marring his argument, or idealism making it less effective.
The realistic attitude Hamilton presents his facts and claims in is the primary reason his defense is still referenced today and is considered . While no one would ever claim that Alexander Hamilton was anything but verbose, his reiteration of fact and focus on the concrete truth to dismantle oppositions makes him an excellent model of debate and effectual writer. This skill is especially prominent in his rationalization of the lack of a jury in the Supreme Court. Not a single word is said in the Constitution as to why there is no jury for the Supreme Court. Hamilton is able to describe in few sentences that the reasoning that cases of such import and lacking location require an impartial set of judges, an intellectual board of unified experience. This simple explanation plays into Hamilton’s bias towards the educated and the empowerment of a select few, yet instead of writing in that opinion he instead portrayed it as a gift to the people, a grant of absolute fairness. But the lack of a jury in the Supreme Court was rather uncontested, the real issue surrounded the Constitution’s lack of a call for a jury in civil cases. His explanation that the rules set in place in the Constitution are not the only that may exist is Hamilton’s longest and strongest defense in the entirety of the Federalist papers. Hamilton writes in Federalist paper 83 that, “…a thing which is only not provided for is not entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition…The rules of legal interpretation are the rules of common sense.” ( Hamilton, 464). Once again going against some of his personal beliefs, he writes a dozen pages on the idea that the local governments, the people, would be allowed to bring their legal needs into existence as they saw fit. The philosophy of the Constitution was not to be a conclusive list of concrete laws that defined ther entirety of the nation, but rather a general framework for the government in this new and growing country. In Federalist papers 83 and 84 Hamilton promotes the ideas of personal liberty, acknowledges and alleviates all major grievances, yet restricts himself by never letting philosophy enter the conversation, never rising above the solid ground of fact and history. His ideals and personal beliefs quelled in the name of dutifully and anonymously defending the document to the public. It was not his duty to conclusively interpret the Constitution, but rather to teach, and then have the public interpret as they saw fit, until the next generation grew up to do the same, and so on.
Alexander Hamilton’s defense of the United States Constitution, specifically of the Constitution’s establishment of the judicial branch in Article II Section III, is both comprehensive and compelling. His focus on fact and specific complaints allowed for the majority of valid concerns to be invalidated by explaining the exact reasoning for enacting the institutions as they were in the Constitution, and how this document contained only the best solutions to all the problems that plagued the Articles, plagued America. His discourse on each portion of the judiciary, and the claims of the anti-federalists against them, allowed him to always have the final word on the truths of this imperative document. In the end, the work proved successful, and after six months of constantly writing, demanding the public see the necessity for change, the Constitution was ratified, and all the detailed dreams formed by the founding fathers were put into effect.
Hamilton, Alexander, James Madison, John Jay, Clinton Rossiter, and Charles R. Kesler. The Federalist Papers. N.p.: Penguin Putnam, 1999. Print.
Why Big Government
The federalist theory behind an increase in the size and power of the federal government is backed by three main ideas: the power to actually enforce the laws equally. the protection and safety of the states from physical conflict as well as ideological faction, and the economic advantages of a cohesive, unified government. A small government would not be able to maintain order, would create conflict between the states, and have little power internationally and economically. One of the principal challenges to government, faction, Madison believes to be inevitable because there will always be people with differing opinions, so the cause of faction can’t be stopped. The result of faction also can’t be stopped either because this would violate people’s freedoms and liberty. Madison believes a large federal government will help control faction when it does arise. This coincides with his theory about representation, as he proposes a large enough number of representatives to ensure that the legislature is not swayed so easily by popular opinion (faction) as it would be in a small government, adding that the more people involved in electing representatives of the country, the more likely it is that good men will be elected. However, Madison did not want so many representatives as to be a democracy. This opposed the anti-federalist theory that the “small” number of representatives he proposed could not truly represent the interests of the people, especially those living so far from the center of the republic. Madison had faith that representatives could accurately represent the people on a federal level, whereas the anti-federalists thought that the interests of the people could only be properly represented in state governments. Thus, these are the general claims by the federalists for a large, federal government.
One of the biggest issues with the Articles of Confederation was that they did not give the federal government much power. As a result, the federal government struggled to collect taxes and impose laws on the states, who were granted much more independence. Hamilton acknowledges this issue in Federalist #15 saying that he will speak on the “insufficiency of the present Confederation to the preservation of the Union,” and criticizing it saying that “we have neither troops, nor treasury, nor government.” (Hamilton, Fed #15). He attributes this problem to the fact that whenever anything needs to get done it needs the concurrence of all thirteen states. On top of that, no state wants to bear more weight than any of the others. This became a huge problem in terms of taxes and debts owed to the federal government. The result was that “the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government,” (Hamilton, Fed #15). This problem of government incapacity is one of the main arguments for a stronger federal government. A federal government that can actually pass laws to the entire union, rather than just suggest them to thirteen states that each make their own individual decisions, is a much more efficient one. The constitutional result of this idea proposed by the framers can be seen in what is known as the ‘supremacy clause’ which reads that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land,” (Art. VI, Clause 2). In writing the Constitution, the Federalists wanted to make sure the government was large and strong enough to have power over the states so that it could function adequately.
The Federalists also argued that a true union would be much safer from both physical conflicts as well as ideological threats than it would be as a consolidation of individual states. In terms of actual warfare, Hamilton focuses in Federalist #7 and #8 on conflict between the states. He acknowledges that some states will be stronger than others in terms of population, proximity to the federal government, and wealth (commerce). This will result in the formation of alliances and disagreements between the states as no attribution of the national debt will seem completely fair, nor will representation on the federal scale if the states remain as divided as they do under the Articles of Confederation. When addressing the debt Hamilton comments that “the peace of the States would be exposed to the double contingency of external invasion and internal contention.” (Hamilton, Fed #7). He finishes the paper worrying that “America, if not connected at all, or only by the feeble tie of a simple league…would…be gradually entangled in the pernicious labyrinths of European politics and wars,” (Hamilton, Fed #7). These are the dangers of not unifying; Hamilton then uses Federalist #9 to talk about his solution, or “the tendency of the Union to repress domestic faction and insurrection.” (Hamilton, Fed #9). Having a confederate republic would not allow for the states to form alliances or go to war on their own accord, so it would render a standing army unnecessary (so personal freedoms wouldn’t be infringed upon), unlike in a consolidation of states competing in their own self-interest. Therefore, a large national commercial union would make states safer.
On the ideological front, Madison was very worried about faction. Madison recognized that faction could not be avoided in political life because neither the cause or the effects of it could ever be abolished without infringing on people’s freedoms. Avoiding the causes is impossible because “as long as the reason of man continues fallible…different opinions will be formed,” and trying to stop the effects of it is just as useless because “liberty is to faction what air is to fire, an aliment without which it instantly expires,” (Madison, Fed #10) and liberty cannot be compromised. A republic, or a government in which a few are elected by the many (rather than a true democracy in which all people have a say), is the solution to faction according to Madison. The problem of faction can be solved “by passing [the public views] through the medium of a chosen body of citizens, whose wisdom may best discern the interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” (Madison, Fed #10). This is as opposed to a true democracy, which is much closer to the anti-federalists ideas, in which a whim of the people could affect negative change. An example of this could be “when a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” In response to the anti-federalist idea of civic virtue governing, Madison scoffs saying that “we well know that neither moral nor religious motives can be relied on as adequate control [of a faction].” (Madison, Fed #10). Therefore one of the top priorities of the Constitution is to limit faction, and it will do so through a true republic, where the legislators are large enough so as not to be affected by the public’s passions and are smart enough to resist them in favor of the public good.
Another major reason for creating a true union between the states was the economic advantages the country could enjoy, advantages that were seriously needed after the Articles had resulted in a weak US economy far behind those of Europe. From commerce, to taxes, to government cost, the federalists believed wealth would be increased with a federal government. At this time there was no federal navy, so the US had no power to negotiate with the European powers. Hamilton suggests that “If we continue united, we may counteract in a variety of ways a policy so unfriendly to our prosperity. By prohibitory regulations, extending, at the same time, throughout the states, we may oblige foreign countries to bid against each other for the privilege of our markets.” (Hamilton, Fed #11). He goes on to discuss how without this union (under the anti-federalist policy), foreign nations would prey on the US, and the only way to stop this is with an adequate power. “Under a vigorous national government, the natural strength and resources of the country…would baffle all the combinations of European jealousy.” (Hamilton, Fed #11). In short, a national government will allow for a navy to protect the country’s trade rights which will in turn make it more competitive economically. Another factor in the economy is the ability to properly levy taxes. Hamilton argues that income taxes have failed and are impractical, so taxes must come from excises on imports and exports. If the states remain separate, merchants will be tempted to smuggle goods illegally into other states in order to pay lower taxes. If the states tried to police this it would take an immense force such as is the case in France. However, “if, on the contrary, there be but one government pervading all the States, there will be…but ONE side to guard–the ATLANTIC COAST.” (Hamilton, Fed #12). A consolidated government will rid the states of their different laws on taxes, make the taxes easier to collect because the Atlantic will be the only area of needing patrol, and reduce the appeal of smuggling because all the states will have the same taxes. In addition to taxes and commerce, the government itself costs the country money to run. Federalist 13 argues not only for the ability of a federal government to work on a national level as it does in Britain, but for how much more cost effective it would be. If the states remain separate under the anti-federalist plan, each one will have to have a number of “principal departments, coextensive with that which would be necessary for a government of the whole.” (Hamilton, Fed #13). Hamilton is arguing that an independent state government will need just as much energy and administration as that of a federal government, except a divided nation will need up to thirteen of them. This is wildly inefficient, and in the words of Hamilton “a separation would be not less injurious to the economy, than to the tranquility, commerce, revenue, and liberty of every part.” (Hamilton, Fed #13). Papers 11-13 are the federalists’ appeal to people’s wallets. While they believe the government will be more effective on a federal scale, a big part of their argument for the large commercial union are the benefits it will give on the economic front.
Each of these arguments for larger government don’t exactly have a matching one from the anti-federalist perspective. One criticism of the anti-federalists is that they didn’t always offer their own solutions. However, the basis of the anti-federalist argument is that they wanted smaller political communities that involved more direct representation. In short, a more democratic and less republican approach. The way this is realized for the anti-federalists is by keeping control in the state governments. This issue is raised in Federal Farmer #2 which reads that “the representation cannot be equal…if the extreme parts of the society cannot be represented as fully as the central–It is apparently impracticable that this should be the case in this extensive country.” (Federal Farmer #2). The issue with the federal government then is that it would take over the states powers, that “should the constitution be adopted without any alterations…the state governments must be annihilated, or continue to exist for no purpose.” (Federal Farmer #2). The way the anti-federalists see it, “the state governments will exist…they will have a near connection, and their members an immediate intercourse with the people; and the probability is, that the state governments will possess the will of the people,” (Federal Farmer #2). So to put in a federal government with so much power is to try to infringe upon the powers that have the confidence of the people (the state governments). To combat this, the anti-federalists want direct representation and therefore increased participation on a more local scale. This is in direct opposition to the federalists, who want representation on a large scale (across the entire country) by a small number of people (less participation). As stated previously, the main idea behind this was that they believed a large number of representatives was the only way to suppress faction. Madison argued that “the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude.” (Madison, Fed #10). Furthermore, “the smaller the society, the fewer probably will be the distinct parties and interests composing it…and the smaller number of individuals composing a majority…the more easily will they concert and execute their plans of oppression.” (Madison, Fed #10). This may be confusing because the federalists here argue against small government, which they do oppose, but they do support a small number of people having power in the government. To be clear, the federalists oppose the anti-federalists on the idea of representation because they have faith in a large government run by a few to function properly and represent the people’s interests (without being controlled by faction), while the anti-federalists think only the state governments coupled with high public engagement can effectively run the country.
The federalists wanted large government so that they could uniformly pass cohesive laws for all states to follow fairly and equally, protect the safety of the union from war and strife as well as the danger of political faction, and increase the country’s wealth and efficiency. The federal government was in desperate need of some power over the states, and having that power, among a small number of elected representatives, would give it the ability to actually organize the country into a functioning one that was safe, fair, and powerful. The anti-federalists did not think this was possible under a large government and preferred to maintain the states’ independence, running the country through local governments which all people participated in. Hamilton and Madison’s federalism was a daunting idea for a young nation and as a result received some fair criticisms, but the change to a large commercial union was a necessary one.
Republicanism as a Safeguard from Faction and Government Unaccountability
The Federalist was written at a time when republican government, historically, was not popular. It had failed throughout history, and monarchies were thriving in Europe. Yet the Americans, with their extraordinary potential as a nation, proposed to adopt it. Why, when more authoritative regimes were flourishing, would this make sense? Or if it really remained to be seen “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” (Federalist 1), why would they not adopt a democracy in which people have the most control over their government? The Federalist Papers’ answers in support of republican government are only made more influential by their defiance of the prevailing form of monarchical rule at the time. Yet this idea, that perhaps what the majority (in this case of nations) believes or is doing is not what is best for all men, is precisely what justifies this organization of government. The Federalist supports republicanism because it secures the good of the society in the face of potentially dangerous popular opinions, and through political responsibility strikes a balance between democratic and tyrannical rule.
Republican government is superior to democracy because it better protects a state from government corruption and more adequately defends the rights of its people. The ends of the horrific “majority faction” takeover Madison so vehemently denounces are precisely these two inherently related evils: corruption and violation of individual rights. If a faction can take over political power, it will pursue policies and actions for its own good against that of the public, for a faction is “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community” (Federalist 10). This is by definition the corruption of the government. The cause of this faction being, according to Madison, “the diversity in the faculties of men, from which the rights of property originate…[and] the possession of different degrees and kinds of property immediately result; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties” (Federalist 10). Because this faction originates from economic inequality, it is then likely that in order for the faction to pursue its goals, it will take the property of others to correct a perceived wrong and in doing so encroach upon citizens’ rights. It is therefore the government’s job to protect that property and other individual rights from the actions of a corrupt or factious government. Having now defined what a republican government seeks to safeguard, or why it is superior to democratic rule, the question of how this form of government executes this objective can now be addressed.
Federalist 10 is Madison’s primary explanation for how republican government will best combat faction. First, he identifies the two ways to get rid of faction as “the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests” (Federalist 10). He says that the latter is impossible, and the former is not worth doing. As such, faction is “sown in the nature of man” and cannot be stopped, yet its effects can be limited. Madison then specifically attacks democracy as a means of controlling those effects, saying that “a pure democracy…can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual” (Federalist 10). This means that when a faction is created, regardless of if it is antithetical to the public good or infringes on the rights of others, there will be nothing to check its power in a democracy. The structure of a republican government, conversely, is superior, shown in the comparison that “the two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.” (Federalist 10). How the first point reduces faction is that when government is delegated to a small number of people, the passions of the public or a popular majority cannot influence policy-maker’s decisions, especially those “whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations”. However, Madison then admits that this small group of people could become corrupt, which seems to contradict the idea that republic prevents corruption. Yet Madison’s second point, although it relates more to the size of republic rather than a republic versus a democracy, remedies this issue by noting that a large republic better represents a wider-range of citizens (in the American case, specifically in the senate) and as such it will be more difficult for one faction to gain too much power. In a democracy, should a majority faction arise and vote in its own interest, their harmful ideas will simply become law. A republic however will make it both harder for that faction to arise as well as put a check on its power by allowing informed representatives to judge these ideas first. A large, representative government is superior to democracy (or a small republican government) because it can better control the natural phenomenon of faction. The effects for citizens of this superior control is that the large republican government will be more difficult to corrupt with policies that oppose the public good, and the rights of citizens will be less likely to be violated.
Republican government has more qualities superior to democratic government that are discussed in the Federalist than simply keeping faction at bay, yet they primarily have the same effect that guarding against faction does in that they again protect personal rights and justice in the government. Federalist 49, for example, is titled “guarding against encroachments” to power for it discusses how republican governments, in which power is removed from the people, are inherently more legitimate than those in which people exercise power more often. In his disagreement with Jefferson that a constitutional convention should be called whenever two branches of government disagree on a constitutional question, Madison writes that “the danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society” (Federalist 49). In other words, a democratic government which by necessity often “disturbs” the public tranquility would be a worse method of solving constitutional problems. Furthermore, “every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing” (Federalist 49). A Republican government then is more legitimate because it distances the people from it, which in turn creates a respect for it that could not exist if people were constantly consulted to change the laws. This distance is precisely what distinguishes republicanism and democracy. A Republican government lets the people be the source from which power is derived, but then keeps their own wills out of individual decision-making. For example, “a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions” (Federalist 51). These precautions are inherent to the organization of republican government and its previously discussed nature of prohibiting faction in that “the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority” (Federalist 51). In this way, republicanism also protects the rights of the minority, and the result of a republic will be that faction is hard to consolidate due to widespread participation and diversity in politics, yet tyranny of the majority is also improbable for the same reason, as the people would not allow it to come into power. As such, the separation of the people from the government and the increased legitimacy of that government serve to protect individual rights even when they are in the minority, as well as keep public interests a degree separate from those of decision-makers to in turn keep them from corruption.
A discussion of the gap between the people and their policy-makers is perhaps the best way to answer the second question proposed by this essay, of what the role of responsibility is for those people in the government who are disconnected, presumably for a good reason, from the people. Responsibility for Madison and Hamilton had two different but important meanings: politicians had the responsibility to make the best decisions for the people (not just the ones the public seemed to want), and the politicians had to be held responsible for the decisions they made. These two definitions are related in creating a good republican government, as a politician who is completely responsive to the people would effectively make the republic a democracy, but one who is not held responsible for his actions would effectively make the republic a tyranny. The previously discussed papers have already pointed out why the role of government is not simply to respond to the people, as factions can arise in which the people promote an idea that is bad for them or threatens the rights of others, such as Japanese internment during WWII (which the government was unsuccessful in stopping) or opposition to integration of schools during the Civil Rights Movement (which the government, through the judiciary, was successful in stopping). As Madison puts it, “if men were angels, no government would be necessary” (Federalist 51), implying the obvious need for government to control the imperfect and potentially damaging interests of men. In many ways this is very Wilson-esque in that government officials should act in the true interests of the people and should be able to discern what they really want, and consequently move them in that direction, rather than simply following what men they say they want. In concordance with Wilson and his focus on the Leaders of Men, Hamilton too specifically delineates this quality of resisting public passions to the executive, writing that when “the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection” (Federalist 71). Indeed, not only the legislative branch must be careful to “withstand the temporary delusion,” as this is also the responsibility of the executive. Resisting dangerous public passions is perhaps the most clearly evident conclusion from the Federalist in terms of government responsibility. But what has not yet been discussed is the second definition, that “responsibility” also means “accountability” in the Federalist.
In reference to frequent elections in Federalist 57, Madison assures Americans that representatives in the republic before making potentially bad decisions or laws “will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised” (Federalist 57). In other words, if they hope to be re-elected, they must make good (although not necessarily in accordance with the public will) decisions. This best accounts for the House of Representatives that he is discussing in Federalist 57, but the Senate with its longer terms also addresses the importance of responsibility. Madison writes that “responsibility…must relate to operations of that power,” and a senate “having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects” (Federalist 63). The creation of the Senate then will also further the role of responsibility promoted by Madison, as its members will have enough time in office in their six years to accomplish what they would like and see the effects of their decisions so that they cannot claim to be irresponsible of the outcomes due to a lack of time. While the House of Representatives can potentially escape some responsibility due to their short terms, they are still bound by frequent elections. While the Senate does not have frequent elections, it is made responsible by making the results of its decisions invariably tied to its members themselves. Both of these aspects of republicanism let the people retain control of the government, while the other definition of responsibility in which politicians do not succumb to the ills of faction opposes civic control. Although the “responsibility” of republican government has multiple meanings, the term itself is a descriptor of the careful balance a government must strike between being responsive to the people, and being overtaken by them.
Republican government better defends societal good and individual rights from the dangers of faction than democratic government does. In a democracy, the popular opinion is not just an opinion, it is law. In a republic, hopefully, the popular opinion is just that, an opinion, while reason is what guides the law. The separation of the people from the government, while that same people give the government its power, is what makes this so. By keeping politicians responsible for their decisions and their continued role in the government, the people maintain a check on the government. The government itself must then be responsible not for the people’s whims and passions, but for their good. When the government is successfully responsible for the people, the people in turn continue to give them that decision-making power. This structure keeps factious ideas away from policy decisions when democracy would not, and holds those who do make decisions responsible, when democracy would not.