the federalist papers genre

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Federalist Papers

By: Editors

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

HISTORY: Federalist Papers

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.

the federalist papers genre

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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

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A modern alternative to SparkNotes and CliffsNotes, SuperSummary offers high-quality Study Guides with detailed chapter summaries and analysis of major themes, characters, and more.

Chapter Summaries & Analyses

Federalist No. 1-Federalist No. 14

Federalist No. 15-Federalist No. 22

Federalist No. 23-Federalist No. 36

Federalist No. 37-Federalist No. 51

Federalist No. 52-Federalist No. 66

Federalist No. 67-Federalist No. 77

Federalist No. 78-Federalist No. 85

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Summary and Study Guide

The Federalist Papers is a collection of 85 essays, most of which were published as serialized articles between October 1787 and April 1788, by the American statesmen Alexander Hamilton , James Madison , and John Jay . Released under the pseudonym Publius, a common name in ancient Rome derived from the word for “the people” or “of the people,” The Federalist Papers were written to persuade the voters of New York state to ratify the US Constitution . The essays lay out the division of power between the federal government and the state governments which remains to this day, albeit in a constantly evolving form. Broadly speaking, this balance of power—in which state authority is subordinate to federal authority in matters related to foreign policy, interstate commerce, and other areas of federal jurisdiction—is known as “Federalism.”

After the 1776 Declaration of Independence and the start of the Revolutionary War, the 13 colonies united in an alliance known as the Articles of Confederation . Under the Articles, each colony remained a sovereign state largely unanswerable to federal authority except in matters of foreign policy. After the surrender of the British in 1781, however, the states stopped funding the federal government, leaving it at risk of defaulting on both its foreign and domestic debts. This debt crisis culminated in Shays’ Rebellion , a 1786-1787 armed insurrection in Massachusetts led by Daniel Shays, a deeply indebted farmer and Revolutionary War veteran who never received compensation for his service. Later that year, 55 delegates including Hamilton and Madison gathered in Philadelphia at a convention to draft a Constitution designed to save the country from anarchy and disunion.

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After a “General Introduction” from Hamilton, Federalist No. 2 through Federalist No. 14 lay out the importance of a strong federal government uniting the states and exercising absolute sovereignty in matters of federal jurisdiction. The most important role played by the federal government concerns the protection of its citizens against foreign invasion and domestic insurrection. Without a federal authority to enforce laws pertaining to interstate disputes, the authors see civil war and anarchy as inevitabilities. Moreover, the federal taxation and tariff schemes proposed under the Constitution will vastly increase revenues so that America can build a strong navy. This poses two major advantages: The first is an increase in national security on the country’s Atlantic coast, and the second is that it positions America to become a major participant in maritime commerce.

Federalist No. 15 through Federalist No. 22 concern the insufficiency of the Articles of Confederation to achieve the goals of national security and good republican governance. With no authority to enforce its laws under the Confederation, the federal government is left with no recourse when states refuse to pay taxes. Adding to its revenue woes, the federal government cannot collect excise taxes or taxes on imports. Finally, with no uniformity in how the states conduct commerce, foreign nations are loath to enter into mutually beneficial trade agreements with America.

In Federalist No. 23 through Federalist No. 36, the authors seek to justify the “energy” of the powers invested in the federal government by the Constitution. Much of these essays concern the then-controversial notion of a standing federal army during peacetime. Although both Madison and Hamilton grant that powerful militaries in times of peace may lead to tyranny and oppression, they are confident that the benefits to national security well outweigh the risks. These essays also go into greater detail about the benefits of direct federal taxes on citizens, as opposed to the current taxation scheme in which the federal government collects taxes indirectly through the states.

The largest group of essays, Federalist No. 37 through Federalist No. 83, explain and answer objections to the powers invested in the legislative, executive, and judiciary branches of the federal government under the Constitution. While the authors acknowledge the wisdom of the maxim concerning the separation of these powers into different branches, they also argue that some overlap is necessary to ensure the appropriate checks and balances on each branch. As detailed in these essays, the government under the US Constitution consists of a mixture of direct and indirect republican qualities; for example, the House of Representatives will be directly elected by the people, while Senators will be appointed by elected state legislators. The President, meanwhile, will be voted on by state electors chosen for this express purpose every four years. These essays also detail the contentious issue of how enslaved people will be counted for the purpose of apportioning House representatives. In what came to be known as the three-fifths compromise, an enslaved person will count as three-fifths of a free person when calculating each state’s population and assigning House seats accordingly.

In Federalist No. 84, Hamilton expresses his opposition to the inclusion of a bill of rights, which at the point had not yet been appended to the Constitution. In the final essay, Federalist No. 85, Hamilton openly admits that the Constitution under consideration is not perfect. Nevertheless, he believes that the Articles of Confederation have left the country teetering on the brink of insolvency and anarchy; therefore, it would be extremely impudent not to ratify the Constitution in its current form.

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Federalist Papers

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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

By alexander hamilton , james madison , john jay.

  • The Federalist Papers Summary

> The Federalist Papers is a treatise on free government in peace and security. It is an outstanding American contribution to the literature on constitutional democracy and federalism, and it is widely considered to be a classic of Western political thought. It is, by far, the most authoritative text concerning the interpretation of the American Constitution and an insight into the framers' intent.

Although Hamilton carefully outlined the contents of The Federalist Papers at the end of the first essay, in reality, he strayed a bit from his original proposition. In the end, the work of (primarily) Madison and Hamilton can be divided into two main parts. The first discusses the defects of the present government, the Articles of Confederation. The second discusses the new Constitution's components: the legislative, executive, and judicial branches.

The Federalist Papers was written in order to secure the ratification of a constitution providing for a more perfect union. Throughout the papers, the idea of that more perfect union occupies center stage. At first glance, this might appear to be the primary purpose of the papers, but The Federalist Papers are concerned with much more than that. "Union" and the "safety and welfare of the parts of which it is composed" are depicted as inseparable, and the Union appears as a means to achieve the safety and welfare of its parts. In general, then, The Federalist Papers discusses federalism as a means to achieve free government in peace and security.

The Federalist Papers deals with not only the practical but also the theoretical, something that distinguishes this from other works. In a letter to his nephew, Thomas Mann Randolph, Thomas Jefferson distinguished The Federalist Papers from the theoretical writings of Locke when he wrote, after discussing Locke's philosophy: "Descending from theory to practice, there can be no better book than The Federalist. " The authors, however, never considered their work to be a mere treatise on governmental practice. In their essays, they often draw a distinction between theory and practice: "Theoretical reasoning must be qualified by the lessons of practice," Madison writes, and he also states that the Philadelphia Convention "must have been compelled to sacrifice theoretical prosperity to the force of extraneous consideration."

Five basic themes can be discerned from the words of Hamilton, Madison, and Jay: federalism, checks and balances, separated powers, pluralism, and representation. Although the papers deal with different parts of the government, as noted above, these themes are fairly consistent throughout the collection. Much has been written concerning the sometimes dissonant nature of The Federalist Papers because they were written by multiple authors in a short amount of time. It is true that Madison later became the great states' rights defender while Hamilton was his principal opponent, but for the most part, these essays are collectively coherent, showing all sides of the proposed Constitution.

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The Federalist Papers Questions and Answers

The Question and Answer section for The Federalist Papers is a great resource to ask questions, find answers, and discuss the novel.

how are conflictstoo often decided in unstable government? Whose rights are denied when this happens?

In a typical non-democratic government with political instability, the conflicts are often decided by the person highest in power, who abuse powers or who want to seize power. Rival parties fight each other to the detriment of the country.

How Madison viewed human nature?

Madison saw depravity in human nature, but he saw virtue as well. His view of human nature may have owed more to John Locke than to John Calvin. In any case, as Saul K. Padover asserted more than a half-century ago, Madison often appeared to steer...

How arguable and provable is the author of cato 4 claim

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Study Guide for The Federalist Papers

The Federalist Papers study guide contains a biography of Alexander Hamilton, John Jay and James Madison, literature essays, a complete e-text, quiz questions, major themes, characters, and a full summary and analysis.

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Essays for The Federalist Papers

The Federalist Papers essays are academic essays for citation. These papers were written primarily by students and provide critical analysis of The Federalist Papers by Alexander Hamilton, John Jay and James Madison.

  • A Close Reading of James Madison's The Federalist No. 51 and its Relevancy Within the Sphere of Modern Political Thought
  • Lock, Hobbes, and the Federalist Papers
  • Comparison of Federalist Paper 78 and Brutus XI
  • The Paradox of the Republic: A Close Reading of Federalist 10
  • Manipulation of Individual Citizen Motivations in the Federalist Papers

Lesson Plan for The Federalist Papers

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E-Text of The Federalist Papers

The Federalist Papers e-text contains the full text of The Federalist Papers by Alexander Hamilton, John Jay and James Madison.

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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.

  • 4.1 Ira Straus


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.


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.


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 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

the federalist papers genre

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.  

  • The Federalist

Alexander Hamilton, James Madison, and John Jay

  • Literature Notes
  • Federalist No. 1 (Alexander Hamilton)
  • About The Federalist
  • Summary and Analysis
  • Section I: General Introduction: Federalist No. 1 (Alexander Hamilton)
  • Section I: General Introduction: Federalist No. 2 (John Jay)
  • Section I: General Introduction: Federalist No. 3 (Jay)
  • Section I: General Introduction: Federalist No. 4 (Jay)
  • Section I: General Introduction: Federalist No. 5 (Jay)
  • Section I: General Introduction: Federalist No. 6 (Hamilton)
  • Section I: General Introduction: Federalist No. 7 (Hamilton)
  • Section I: General Introduction: Federalist No. 8 (Hamilton)
  • Section II: Advantages of Union: Federalist No. 9 (Hamilton)
  • Section II: Advantages of Union: Federalist No. 10 (James Madison)
  • Section II: Advantages of Union: Federalist No. 11 (Hamilton)
  • Section II: Advantages of Union: Federalist No. 12 (Hamilton)
  • Section II: Advantages of Union: Federalist No. 13 (Hamilton)
  • Section II: Advantages of Union: Federalist No. 14 (Madison)
  • Section III: Disadvantages of Existing Government: Federalist No. 15 (Hamilton)
  • Section III: Disadvantages of Existing Government: Federalists No. 16-20 (Madison and Hamilton)
  • Section III: Disadvantages of Existing Government: Federalist No. 21 (Hamilton)
  • Section III: Disadvantages of Existing Government: Federalist No. 22 (Hamilton)
  • Section IV: Common Defense: Federalists No. 23-29 (Hamilton)
  • Section V: Powers of Taxation: Federalists No. 30-36 (Hamilton)
  • Section VI: Difficulties in Framing Constitution: Federalists No. 37-40 (Madison)
  • Section VII: General Powers: Federalists No. 41-46 (Madison)
  • Section VIII: Structure of New Government: Federalists No. 47–51 (Madison or Hamilton)
  • Section IX: House of Representatives: Federalists No. 52–61 (Madison or Hamilton)
  • Section X: United States Senate: Federalists No. 62–66 (Madison or Hamilton)
  • Section XI: Need for a Strong Executive: Federalist No. 67 (Hamilton)
  • Section XI: Need for a Strong Executive: Federalist No. 68 (Hamilton)
  • Section XI: Need for a Strong Executive: Federalists No. 69-74 (Hamilton)
  • Section XI: Need for a Strong Executive: Federalists No. 75-77 (Hamilton)
  • Section XII: Judiciary: Federalist No. 78 (Hamilton)
  • Section XII: Judiciary: Federalist No. 79 (Hamilton)
  • Section XII: Judiciary: Federalist No. 80 (Hamilton)
  • Section XII: Judiciary: Federalist No. 81 (Hamilton)
  • Section XII: Judiciary: Federalist No. 82 (Hamilton)
  • Section XII: Judiciary: Federalist No. 83 (Hamilton)
  • Section XIII: Conclusions: Federalist No. 84 (Hamilton)
  • Section XIII: Conclusions: Federalist No. 85 (Hamilton)
  • About the Authors
  • Introduction
  • Alexander Hamilton Biography
  • James Madison Biography
  • John Jay Biography
  • Essay Questions
  • Cite this Literature Note

Summary and Analysis Section I: General Introduction: Federalist No. 1 (Alexander Hamilton)

The Federalist papers divide logically into a number of sections, with each having a central theme developed in a succession of short chapters. Consequently, the material will be dealt with in sections. Chapter breaks are indicated for easier reference.

The eight chapters in this section laid down the historical groundwork for the arguments on specific constitutional points and political theories to be discussed in detail later.

The opening statement was bold and rather bald, characteristically Hamiltonian in style. The American people, "after an unequivocal experience of the inefficacy of the subsisting Federal Government," were not being called on to consider the adoption of an entirely new United States constitution, a subject of paramount importance. It involved "nothing less than the existence of the UNION . . . the fate of an empire, in many respects, the most interesting in the world." A wrong decision here would "deserve to be considered as the general misfortune of mankind."

Anticipating sharp criticism of the proposed constitution, and active opposition to it, Hamilton grouped dissidents into several categories. There were those constitutionally opposed to any change, no matter what. There were those who feared that a change might cost them their jobs. There were those who liked to fish in troubled waters.

The largest body consisted of men of "upright intentions" whose opposition arose "from sources, blameless at least, if not respectable, the honest errors of minds led astray by preconceived jealousies and fears." This group was "so numerous indeed and so powerful" that it might give a "false bias to the judgment" that would be fatal, leading to a "torrent of angry and malignant passions" aroused by the loudness of their voices and the bitterness of their invective. The debate on both sides should be conducted with moderation, for "nothing could be more ill judged than that intolerant spirit, which has, at all times, characterised political parties."

Hamilton then clearly outlined what was going to be discussed in succeeding essays, particularly the "utility of Union."

The most interesting thing here is Hamilton's analysis of the groups opposing the proposed constitution. There were those congenitally opposed to any change, no matter what. There were those who feared losing status and their jobs under a new arrangement. There were those who always liked to fish in troubled waters, hoping to come up with something. No one denied any of this.

But Hamilton was on more questionable and highly dubious ground when he characterized the main opposition as a lot of well-intentioned men, "blameless at least, if not respectable," who had been led astray "by preconceived jealousies and fears." This large group of well intentioned but misguided men included a large number of most highly respected patriots from the days of 1776 and before: Thomas Jefferson, Patrick Henry, Richard Henry Lee, George Mason, Sam Adams, and Governor George Clinton of New York, among others. Having blasted the opposition as ignorant, self-seeking, or wrong-headed, Hamilton urged that the debate be conducted with "moderation." This infuriated Anti-Federalists, who took it to mean, as it was intended, that they should keep quiet while Federalists held the floor. Hamilton's tact often left much to be desired.

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Teaching American History

The Federalist Papers

Part i |  the challenge and the outline.

  • Federalist 1: Introduction , Alexander Hamilton

Part II |  “The Utility of the Union”

Federalist Papers

  • Federalist 2 : Concerning Dangers from Foreign Force & Influence, John Jay
  • Federalist 3 : The same Subject continued, John Jay
  • Federalist 4 : The same Subject continued, John Jay
  • Federalist 5 : The same Subject continued, John Jay
  • Federalist 6 : Concerning Dangers from War between the States, Alexander Hamilton
  • Federalist 7 : The subject continued, and Particular Causes Enumerated, Alexander Hamilton
  • Federalist 8 : The effects of Internal War in producing Standing Armies, and other institutions unfriendly to liberty, Alexander Hamilton
  • Federalist 9 : The Utility of the Union as a Safeguard against Domestic Faction and Insurrection, Alexander Hamilton
  • Federalist 10 : The same Subject continued, James Madison
  • Federalist 11 : The Utility of the Union in respect to Commerce and a Navy, Alexander Hamilton
  • Federalist 12 : The Utility of the Union in respect to Revenue, Alexander Hamilton
  • Federalist 13 : The same Subject continued, with a view to Economy, Alexander Hamilton
  • Federalist 14 : An Objection drawn from the Extent of Country, Answered

Part III | The “Insufficiency” of the Articles of Confederation

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  • Federalist 15 : Concerning the Defects of the Present Confederation, in Relation to the Principle of Legislation for the States in their Collective Capacities, Alexander Hamilton
  • Federalist 16 : The same Subject continued, in relation to the same Principles, Alexander Hamilton
  • Federalist 17 : The Subject continued, and Illustrated by Examples, to Show the tendency of Federal Governments, rather to Anarchy among the Members, than Tyranny in the Head, Alexander Hamilton
  • Federalist 18 : The Subject continued, with further Examples, James Madison
  • Federalist 19 : The Subject continued, with further Examples, James Madison
  • Federalist 20 : The Subject continued, with further Examples, James Madison
  • Federalist 21 : Further defects of the present Constitution, Alexander Hamilton
  • Federalist 22 : The same subject continued, and concluded, Alexander Hamilton

Part IV | The Minimum “Energetic” Government Requirement

  • Federalist 23 : The necessity of a government, at least equally energetic with the one proposed, Alexander Hamilton
  • Federalist 24 : The subject continued, with an answer to an objection concerning standing armies, Alexander Hamilton
  • Federalist 25 : The subject continued, with the same view, Alexander Hamilton
  • Federalist 26 : The subject continued with the same view, Alexander Hamilton
  • Federalist 27 : The subject continued, with the same view, Alexander Hamilton
  • Federalist 28 : The same subject continued, Alexander Hamilton
  • Federalist 29 : Concerning the militia, Alexander Hamilton
  • Federalist 30 : Concerning taxation, Alexander Hamilton
  • Federalist 31 : The same subject continued, Alexander Hamilton
  • Federalist 32 : The same subject continued, Alexander Hamilton
  • Federalist 33 : The same subject continued, Alexander Hamilton
  • Federalist 34 : The same subject continued, Alexander Hamilton
  • Federalist 35 : The same subject continued, Alexander Hamilton
  • Federalist 36 : The same subject continued, Alexander Hamilton

Part V | “The Great Difficulty of Founding”

Presidential Portraits

The Difficulty with Demarcations and Definitions

  • Federalist 37 : Concerning the difficulties which the convention must have experienced in the formation of a proper plan, James Madison
  • Federalist 38 : The subject continued, and the incoherence of the objections to the plan, exposed, James Madison
  • Federalist 39 : The conformity of the plan to republican principles: an objection in respect to the powers of the convention, examined, James Madison
  • Federalist 40 : The same objection further examined, James Madison

The Difficulty of Federalism

  • Federalist 41 : General view of the powers proposed to be vested in the union, James Madison
  • Federalist 42 : The same view continued, James Madison
  • Federalist 43 : The same view continued, James Madison
  • Federalist 44 : The same view continued and concluded, James Madison
  • Federalist 45 : A further discussion of the supposed danger from the powers of the union, to the state governments, James Madison
  • Federalist 46 : The subject of the last paper resumed; with an examination of the comparative means of influence of the federal and state governments, James Madison

The Difficulty of Republicanism

  • Federalist 47 : The meaning of the maxim, which requires a separation of the departments of power, examined and ascertained, James Madison
  • Federalist 48 : The same subject continued, with a view to the means of giving efficacy in practice to that maxim, James Madison
  • Federalist 49 : The same subject continued, with the same view, James Madison
  • Federalist 50 : The same subject continued, with the same view, James Madison
  • Federalist 51 : The same subject continued, with the same view, and concluded, James Madison

Part VI | “The True Principles of Republican Government”

The house of representatives.

  • Federalist 52 : Concerning the house of representatives, with a view to the qualifications of the electors and elected, and the time of service of the members, James Madison
  • Federalist 53 : The same subject continued, with a view of the term of service of the members, James Madison
  • Federalist 54 : The same subject continued, with a view to the ratio of representation, James Madison
  • Federalist 55 : The same subject continued, in relation to the total number of the body, James Madison
  • Federalist 56 : The same subject continued, in relation to the same point, James Madison
  • Federalist 57 : The same subject continued, in relation to the supposed tendency of the plan of the convention to elevate the few above the many, James Madison
  • Federalist 58 : The same subject continued, in relation to the future augmentation of the members, James Madison
  • Federalist 59 : Concerning the regulation of elections, James Madison
  • Federalist 60 : The same subject continued, Alexander Hamilton
  • Federalist 61 : The same subject continued, and concluded, Alexander Hamilton

The Federalist Papers

  • Federalist 62 : Concerning the constitution of the senate, with regard to the qualifications of the members; the manner of appointing them; the equality of representation; the number of the senators, and the duration of their appointments, James Madison
  • Federalist 63 : A further view of the constitution of the senate, in regard to the duration of the appointment of its members, James Madison
  • Federalist 64 : A further view of the constitution of the senate, in regard to the power of making treaties, John Jay
  • Federalist 65 : A further view of the constitution of the senate, in relation to its capacity, as a court for the trial of impeachments, Alexander Hamilton
  • Federalist 66 : The same subject continued, Alexander Hamilton

The Presidency

  • Federalist 67 : Concerning the constitution of the president: a gross attempt to misrepresent this part of the plan detected, Alexander Hamilton
  • Federalist 68 : The view of the constitution of the president continued, in relation to the mode of appointment, Alexander Hamilton
  • Federalist 69 : The same view continued, with a comparison between the president and the king of Great Britain, on the one hand, and the governor of New York, on the other, Alexander Hamilton
  • Federalist 70 : The same view continued, in relation to the unity of the executive, and with an examination of the project of an executive council, Alexander Hamilton
  • Federalist 71 : The same view continued, in regard to the duration of the office, Alexander Hamilton
  • Federalist 72 : The same view continued, in regard to the re-eligibility of the president, Alexander Hamilton
  • Federalist 73 : The same view continued, in relation to the provision concerning support, and the power of the negative, Alexander Hamilton
  • Federalist 74 : The same view continued, in relation to the command of the national forces, and the power of pardoning, Alexander Hamilton
  • Federalist 75 : The same view continued, in relation to the power of making treaties, Alexander Hamilton
  • Federalist 76 : The same view continued, in relation to the appointment of the officers of the government, Alexander Hamilton
  • Federalist 77 : The view of the constitution of the president concluded, with a further consideration of the power of appointment, and a concise examination of his remaining powers, Alexander Hamilton

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The Judiciary

  • Federalist 78 : A view of the constitution of the judicial department in relation to the tenure of good behaviour, Alexander Hamilton
  • Federalist 79 : A further view of the judicial department, in relation to the provisions for the support and responsibility of the judges, Alexander Hamilton
  • Federalist 80 : A further view of the judicial department, in relation to the provisions for the support and responsibility of the judges, Alexander Hamilton
  • Federalist 81 : A further view of the judicial department, in relation to the distribution of its authority, Alexander Hamilton
  • Federalist 82 : A further view of the judicial department, in reference to some miscellaneous questions, Alexander Hamilton

Five Miscellaneous Republican Issues

  • Federalist 83 : A further view of the judicial department, in relation to the trial by jury, Alexander Hamilton
  • Federalist 84 : Concerning several miscellaneous objections, Alexander Hamilton

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Part VII | Analogy to State Governments and Added Security to Republicanism

  • Federalis t 85 : Conclusion, Alexander Hamilton

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The federalist no. 56, [16 february 1788], the federalist no. 56 1 by james madison or alexander hamilton.

[New York, February 16, 1788]

To the People of the State of New-York.

THE second charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents.

As this objection evidently proceeds from a comparison of the proposed number of representatives, with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it, will be a brief explanation of these peculiarities.

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no farther than to those circumstances and interests, to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.

What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia.

A proper regulation of commerce requires much information, as has been elsewhere remarked; 2 but as far as this information relates to the laws and local situation of each individual state, a very few representatives would be very 3 sufficient vehicles of it to the federal councils.

Taxation will consist, in great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the state may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men diffusively elected within the state. Divide the largest state into ten or twelve districts, and it will be found that there will be no peculiar local interest in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the state framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every state there have been made, and must continue to be made, regulations on this subject, which will in many cases leave little more to be done by the federal legislature, than to review the different laws, and reduce them into one general act. A skilful individual in his closet, with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information; and it may be expected, that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the states, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation, by the assistance of the state codes, we need only suppose for a moment, that this or any other state were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labour would be found in the several volumes of their proceedings, which would very much shorten the labours of the general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each state will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts; but will probably in all cases have been members, and may even at the very time be members of the state legislature, where all the local information and interests of the state are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States.

The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different states; They are the same throughout each particular state; and depend on circumstances which can differ but little in different parts of the same state. 4

The attentive reader will discern that the reasoning here used to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. 5 This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single state; but of those among different states. Taking each state by itself, its laws are the same, and its interests but little diversified. A few men therefore will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual state, perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole state might be competently represented, by a single member taken from any part of it. On a comparison of the different states together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives therefore from each state may bring with them a due knowledge of their own state, every representative will have much information to acquire concerning all the other states. The changes of time, as was formerly remarked, 6 on the comparative situation of the different states, will have an assimilating effect. 7 The effect of time on the internal affairs of the states taken singly, will be just the contrary. At present some of the states are little more than a society of husbandmen. Few of them have made much progress in those branches of industry, which give a variety and complexity to the affairs of a nation. These however will in all of them be the fruits of a more advanced population; and will require on the part of each state a fuller representation. The foresight of the Convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government.

The experience of Great Britain which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these enquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland, cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons, amount to five hundred fifty eight. Of this number one ninth are elected by three hundred and sixty four persons, and one half by five thousand seven hundred and twenty three persons. * It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government; or to the knowledge of their circumstances and interests, in the legislative councils. On the contrary it is notorious that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore with great propriety be considered as something more than a mere deduction from the real representatives of the nation. We will however consider them, in this light alone, and will not extend the deduction, to a considerable number of others, who do not reside among their constituents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions two hundred and seventy nine persons only will be the depository of the safety, interest and happiness of eight millions; that is to say: There will be one representative only to maintain the rights and explain the situation of twenty eight thousand six hundred and seventy constituents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it: And comparing it with that of the House of Representatives as above explained, it seems to give the fullest assurance that a representative for every thirty thousand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it.

The [New York] Independent Journal: or, the General Advertiser , February 16, 1788. This essay appeared in New-York Packet on February 19. In the McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition this essay is numbered 56, in the newspapers it is numbered 55.

1 .  For background to this document, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

Essay 56 is one of those disputed essays the authorship of which cannot be assigned on the basis of internal evidence to either Madison or H. Edward G. Bourne (“The Authorship of the Federalist,” The American Historical Review , II [April, 1897], 453) gives the following example to demonstrate Madison’s authorship:

Bourne argues that because the Constitution assigned Virginia ten representatives and New York six, Madison would be more likely than H to use the figure ten as an example. He further states that some months later in the New York Ratifying Convention H in illustrating the adequacy of the representation provided by the Constitution spoke of a state as being divided into six districts. The argument is not convincing because the author of essay 56 spoke of “ten or twelve districts” which might mean, using the same kind of logic employed by Bourne, that H, unlike Madison, did not remember the exact number of districts into which Virginia was divided; also, in the same paragraph in essay 56 it is stated, “suppose … that this or any other state were divided into a number of parts …,” a statement which suggests that the author arbitrarily had selected his figures. Bourne also adduces as evidence of Madison’s authorship the fact that in the closing paragraph of this essay the word “monitory … almost a favorite word with Madison,” is used. For an example of H’s use of the same word, see note 36 to “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

J. C. Hamilton ( The Federalist , I, cxxviii), also using internal evidence, gives the following example to prove that essay 56 was written by H:

One might give as further evidence of H’s authorship the fact that in revising the essays for publication by McLean he deleted paragraph seven and substituted another paragraph for it. Although in the McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition H occasionally altered or changed a word in Madison’s essays, in no other instance did he make a major change. Had he not believed that he was the author of the essay, one might argue, it is unlikely he would have made the substitution.

As suggested by the research of Bourne and J. C. Hamilton, however, the evidence is contradictory. One could, for example, indicate passages that are remarkably similar to statements made by H in essay 36; one could, on the other hand, point out statements which are almost the same as statements made by Madison in essay 53. An example of these similarities follows:

Examples might be multiplied, but they would all lead to the same question: Did Madison borrow from essay 36, or did H borrow from essay 53? The question, it seems, is not susceptible of an answer. Both Bourne and Douglass Adair (“The Authorship of the Disputed Federalist Papers,” Part II, The William and Mary Quarterly , I [July, 1944], 260) give as evidence for Madison’s authorship a reference to James Burgh’s Political Disquisitions . They argue that because the Virginian took notes from Burgh in his “Additional Memorandum for the Convention of Virginia” ( Madison, Letters description begins James Madison, Letters and Other Writings of James Madison (Philadelphia, 1867). description ends , I, 393, note), and because no reference to Burgh can be found in the writings of H, Madison must have written essay 56. The argument is based on the erroneous assumption that because H did not again refer to Burgh in other writings he could not have read him. In the first place, there is no positive evidence that H had not read Burgh and, in the second place, H referred in The Federalist to many authors who are not mentioned in his other writings. For example, in essay 70 , definitely written by H, there is a reference to “the celebrated Junius,” the famous English letter writer of the eighteenth century. So far as can be determined, H made no other reference to Junius.

Since one can demonstrate the authorship of either man by carefully looking for parallels in his other writings, it is obvious that internal evidence cannot decide the problem of authorship. For the reasons why Madison’s claim to the authorship of this essay outweighs (but does not necessarily obviate) that of H, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

2 .  See essay 53 .

3 .  “very” omitted in Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends .

4 .  The following was substituted in McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends and Hopkins for this paragraph:

“With regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said to be necessary. The general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. The art of war teaches general principles of organization, movement, and discipline, which apply universally.”

5 .  See essay 53 .

6 .  See essay 53 .

7 .  “tendency” substituted for “effect” in Hopkins.

8 .  The reference is to James Burgh, Political Disquisitions: Or, an Enquiry into public Errors, Defects, and Abuses … (London, 1774), I, 45, 48.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

*   Burgh’s polit. disquis. 8

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