Die Federalist Papers (1788)

America is a unique country, founded on individual liberty. The Federalist Papers are a conglomeration of newspaper editorials written by three of our founding fathers- Alexander Hamilton, John Jay, and James Madison— explaining the constitution to lay people. Hamilton wrote a majority of the articles, mostly deconstructing arguments against the constitution. These articles illustrate liberty, from the ancient Greeks to Great Britain. The w the positives from each prior democracy and explain how America will overcome weaknesses. ( )

I'm reading an earlier vital text on American democracy "The Federalist Papers" at a relaxed pace and I find I am drawn again and again to the ideals of the early US founders and this preposterous joke of a President supported by the Trumptards, breaking all the protocols. It’s quite a sad read, all these impassioned arguments and the basis for checks and balances in the face of a system that has been 25% violated by Donnie The Chump and his Republican enablers. Tocqueville's “Democracy in America” makes much of the wisdom and social equality of the Pilgrims and of the vast uncultivated wilderness being the founding conditions for the democratic success of the US (incidentally, I'm not quite satisfied with Tocqueville's distinction between the uncultivated northern part of the continent and the cultivated southern part upon the arrival of Europeans as an explanation for the different courses of freedom and tyranny in the two hemispheres; it's one of the rare cases where he doesn't really buttress an assertion.) Would you agree that these founding conditions nurtured certain expansive traits in the American character which fed democracy for 200 years but are now depleting it?

Tocqueville cites “The Federalist Papers” extensively in “Democracy in America”. The rationality and foresight that exudes from the quotes is deeply refreshing. In my analysis of what Tocqueville says about the laws of the US, I can't see that Trump has been able to exploit any weakness. The federal constitution, with its amendments, seems to be doing its job admirably well. Arguably the 2/3 majority requirement in the Senate for impeachment might be seen as an error, but that provision was presumably intended (perhaps others can confirm this?) as a bulwark against populist sways of opinion. As ever, the Founding Fathers could provide against many contingencies, but not against the Senate being filled with fruitcakes who can't tell a conspiracy from a fact, or a principle from a bucket of pigswill.

The reality, it seems to me, is almost diametrically opposite to this: the Constitutional balance of power between the legislative, executive, and judicial branches of the federal government, balanced in the course of each checking power accumulators in the other two, and each two, in the other one, depends absolutely on actual people doing the checking-and-balancing.

McConnell and Barr (and Roberts), for example, would have to provide checks against Trump cronies ignoring lawful subpoenas. (I use their names both literally and representatively (of their party, the Republicans).)

I'm not saying that Kremlin Don is exploiting the natural "weakness" of laws, a nation of laws, ultimately depending on people to attach those laws to real circumstances, real behavior. (He couldn't exploit three four-of-a-kinds in a row at a poker table; his living as though he were a 'winner' has nothing to do with even talents for public relations or crime, and everything to do with appearing at the right time to appeal to a catastrophically susceptible not-minority-enough — and, of course, to having had a successfully crooked father go senile and to having pretended to operate a laughably transparent money Laundromat for Russian gangsters.)

The weakness, in my view, is ineradicable among human societies and cultures: no political-economic, legal, and social geodesic has such great "tensegrity" as to survive corruption in—especially—it’s most load-bearing human components. (At the moment, the best illustration of that is McConnell—but there are many other instances.)

I don't think Trump has the skilz or, in fact, the spine, to take over; to me, a greater worry is someone capable of spotting a ruling vacuum and getting, eventually, a REAL majority behind him. ( )

Yes, separation of powers, but why read all 85 papers? Several reasons. First, you get an excellent introduction to the U.S. Constitution as the authors explain and defend each of its provisions against the concerns raised by critics. Second, you learn about the goals and policies, as well as the assessment of human nature, that underlay the Constitution. Third, the papers put forth the political philosophy enshrined in the Constitution within the context of historical examples of other ancient and modern republics, democracies and confederations, the constitutional history of Great Britain and the experience of the Confederation and the individual thirteen States. They also quote influential political philosophers like Montesquieu and Hume (strangely, however, not a peep from Locke). Fourth, all of the above put one in a better position to evaluate our current political and legal struggles in the light of the Constitution, including comparing and contrasting the concerns raised in these papers about the proposed Constitution in 1787 to those we have in our own time concerning the operation of the Constitution.

Because each “paper” was published as an op-ed in a newspaper, most of them are fairly short, just four or five pages. Thus, they are relatively easy to digest; two or three at a setting works just fine. Their relative brevity generally ensures that the authors keep their rhetorical flourishes to a minimum and do not overdo the analysis of their subjects. The writing style of some of Alexander Hamilton’s initial papers seemed a little stilted to me, by contrast to the greater lucidity of the James Madison series (37-58). However, the remaining Hamilton papers then seemed to read much better.

The papers portray the Constitution as seeking a balance between security and stability on the one hand and liberty on the other. The initial series, Nos. 1-30 (mostly Hamilton and some Madison and Jay), focused on the necessity for a strong Union in light of the demonstrated weaknesses of the Confederation including the need for adequate powers at the national level for military security, regulation of commerce, and taxation. They also denied charges that the federal government would encroach too much on the states. Then in several papers, Nos. 37-58, Madison made his basic case for both the powers and the organizational structure of the national government (including separation of powers). Then Hamilton returns and discusses the three branches of government: legislative (Nos 59-66), executive (Nos. 67-77) and judicial (Nos. 78-83). There is no discussion of the Bill of Rights, other than the case made by Hamilton in No. 84 that no Bill of Rights is necessary.

One of the main concerns in the papers was that the Congress would encroach upon the executive and the judicial branches, and thus both Hamilton and Madison defended the limitations on the legislature intended to avoid this, such as its bicameral structure and the limited presidential veto. They seemed less concerned that the President would encroach upon the other branches, possibly because the President’s powers were less extensive than those of the King of Great Britain. (See No. 69.) (In this regard, Madison states that in a republic, the legislature is a greater threat to the other branches than is the executive. No. 46.) Interestingly, in the final paragraph of the concluding paper, No. 85, Hamilton notes among other dangers “the military despotism of a victorious demagogue.” And in No. 8, he stated that war leads to a stronger executive at the expense of the legislature. Madison notes that the House of Representatives has that ultimate check of legislatures over the executive: the power of the purse. Of course, the powers of the President become a focus of contemporary concern with the growth of the imperial presidency in the 20th century and may now be reaching a culmination with the present occupant of the White House.

In the Introduction, Clinton Rossiter notes that, like the convention, the papers are a compromise, between Hamilton’s support for nationalism and an energetic executive and Madison’s emphasis on the federal and limited nature of government. Madison defines “republic” as a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for limited period, or during good behavior.” No. 39. Some of the contrast between Hamilton and Madison can be shown by their views of “good government.” In No. 68, Hamilton states that “the true test of a good government is its aptitude and tendency to produce a good administration.” Madison states that “[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.” No. 62.

In No. 5, John Jay notes the “slaughter of innocent Indians” by the States, and in No. 24, in the discussion of the need for a strong national government, Hamilton notes the need for garrisons on the Western frontier and that “[s]avage tribes in our Western frontier ought to be regarded as our natural enemies, because they have most to fear from us” (and the most to hope from the support of Great Britain and Spain, the foes of America).

In No. 54, Madison addresses the compromise on slavery, using the voice of an anonymous southern speaker. The Constitution provides for the counting of “inhabitants” of each State for purposes of determining the allocation of representatives in Congress. Under the compromise, slaves count as 3/5 of a person. This compromise reflects the “mixed character” and “peculiar case” of the slaves: under the laws they partake of the qualities of property and personhood. To the extent they are treated as property, they are included in the calculation of property for taxation purposes. To the extent they are inhabitants of the States, they should also be included in the census. Although States do not include slaves in the calculation of representation in State legislatures, the Constitutional compromise permits them to be counted to a limited extent for representation in the House of Representatives. Thus, they are regarded “as inhabitants, but as debased by servitude below the equal level of free inhabitants, [the Constitution] regards the slave as divested of 2/5 of the man.”

The Constitution also prohibits the importation of slaves as of a date (1808) set 20 years after the ratification of the Constitution. It also provides that this provision may not be amended. Madison notes that this provision is an advance on the Confederation Constitution which had set no time limits on the importation of slaves. (No. 38).

In No. 10, Madison discusses the famous topic of factions. He concludes they cannot (and should not) be prohibited, but their negative effects can be controlled. Madison defines “faction” as “a number of citizens … 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.” “The most common and durable source of factions has been the various and unequal distribution of property.“ He says the best protection against faction, including the tyranny of the majority over the minority, is to have a large republic with a large population and diverse groups and interests so that it is difficult to impose a single view.

Madison also makes the case for the separation of powers as the guarantee of liberty. In No.47, he declares the “accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, or few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Therefore, not only each branch of government must be separate, but each branch must have practical security against invasion by the others, i.e., the “balances and checks” that are referenced by Hamilton (No. 9) and the “checks” referenced by Madison (No. 50). Government must be structured so that its “several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (No. 51)

In No. 65, Hamilton discusses the judicial role of the Senate in the trial of impeachments. His commentary has a contemporary ring. Because impeachment is used for crimes of a political nature, e.g., violation of the public trust, the process divides a community into “parties” more or less friendly to the accused. “In many cases [the impeachment] will connect itself with the pre-existing factions, and will enlist all their animosities … on one side or the other…. In such cases there will always be the danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of guilt or innocence.” But he then states that the Senate is the best choice for the trial of an impeachment: “What other body would be likely to feel confident enough in its own situation to preserve, unawed and influenced, the necessary impartiality between individuals accused and the representatives of the people [the House of Representatives], his accusers?“

In its original text, the Constitution provided that the President would be picked by electors selected by the States but did not provide for the people to vote directly for the President. In No. 68, Hamilton states that this process “affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.“

In one interesting aside demonstrating his knowledge of legal matters, Hamilton makes a reference to Japan, which was not to be “opened” to the world by Commodore Perry until 1853 (66 years in the future), in connection with a discussion of choice of law. In No. 82, he states that “[t}he judiciary power from every government looks beyond its own local or municipal laws … and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion in our courts.”

Like other great works of political philosophy, the Federalist Papers justify and adumbrate a vision of the organization of political affairs growing out of the context of the specific issues and circumstances of the time. In this case, those circumstances involved the compromises that had to be made to bring together thirteen states in a unanimous compact addressing their varied interests but also assuring both union and liberty. ( )

Modern Library college editions ( )

Volume II