The Federalist

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America's most significant political treatise, The Federalist Papers have assumed a special place in legal scholarship. Originally written as eighty‐five essays under the pseudonym “Publius,” the essays were published in New York City newspapers between 27 October 1787 and 28 May 1788. The early essays were reprinted widely in newspapers and the entire series was published in two volumes in March and May 1788. Alexander Hamilton and James Madison were the principal authors, while John Jay wrote five essays.

The Federalist was published to persuade the people of New York to elect delegates who would ratify the proposed Constitution in the forthcoming state convention. Publius attempted to clarify and justify various provisions of the Constitution and to explain why other provisions, such as a bill of rights, had been omitted. Americans, Publius argued, had a rare opportunity to create their own form of government through reason and choice rather than relying on chance or force, which had dictated previous constitutions. Demonstrating the necessity of union and the insufficiency of the Articles of Confederation, Publius showed that the Constitution created a republican form of government that was strong, but that was restrained by checks and balances. This government would safeguard liberty and property and restore respect for America abroad.

Though two‐thirds of the delegates elected to the New York convention opposed an unamended Constitution, Publius provided the raw material from which other political writers and orators drew. While responding to specific Antifederalist arguments, The Federalist also offered a unified conceptualization of the principles upon which the new Constitution rested. This philosophical underpinning, based on history, recent experience, and reason, demonstrated why this republican government could survive, where so many others had failed.

Refuting the strongly held belief, often attributed to Montesquieu, that republics could survive only in small territories occupied by homogeneous populations, Madison in number 10 argued that republics could thrive best in large territories where many diverse factions continually vied with each other. Occasionally factions would unite in favor of specific policies, but these coalitions would be short‐lived. Through the persistent struggles of these factions, the liberty of both majorities and minorities would be maintained. The enlarged republic would also provide better leadership by enlarging the pool of qualified individuals from which each representative would be chosen.

The three branches of the federal government were to be separate, each serving as a check upon the other. Although not totally separate, the viability of each branch was guaranteed by giving it sufficient power to defend itself against the actions of the other branches. Furthermore, when any branch overstepped its constitutionally defined role, the other branches could act to check the abuse.

Publius also contended that the new Constitution safeguarded liberty by allocating power between the central and state governments. This new American federalism established spheres of power and some concurrent powers for each level of government. Publius maintained that the Constitution created a central government with limited powers. The powers of Congress and the president were specified. All other powers were implicitly left to the states or to the people. If representatives violated their mandate, the people could replace them through the frequent and free elections guaranteed by the Constitution. If the president or the federal judiciary violated their trust, Congress could impeach and, upon conviction, remove them from office.

Since its first appearance, The Federalist has assumed an honored place in American jurisprudence. Scholars, lawyers, and jurists have cited it as an authority. Too often, however, Publius has been taken at face value without an understanding of the context of the original debate over the ratification of the Constitution. Knowledge of this contemporary debate reveals that Publius was sometimes bested by his opponents; that the views espoused by Publius sometimes differed from the arguments made by Hamilton and Madison in the Constitutional Convention; and that a large portion of the American people and the delegates to the state ratifying conventions did not agree with The Federalist. Nevertheless, from the beginning of government under the Constitution, Americans have relied on The Federalist as the most authoritative source for understanding the intent of the framers (see Original Intent).

See also Federalism; Separation of Powers.

Bibliography

• Jacob E. Cooke, ed., The Federalist (1961).
• John P. Kaminski and Richard Leffler, eds., The Response to The Federalist (1990)

— John P. Kaminski

A series of newspaper articles appearing over the pseudonym Publius in New York city newspapers between 2 October 1787 and 16 August 1788. Most of these 85 articles were written by either Alexander Hamilton or James Madison, with a handful by John Jay. The purpose of these writings was to make the case for the ratification of the United States Constitution that had been formulated during the summer of 1787. The Federalist Papers remains a volume of great significance constantly cited by lawyers, scholars, and commentators seeking to comprehend the meaning of the various clauses of the Constitution. The papers address some of the key problems that arise from attempting to establish liberal democratic government in a vast and diverse society. Topics covered include the nature of representative government, the separation of powers, federalism, pluralism, and judicial review. Among the more important papers can be included numbers 10, 51, 70, and 78.

— David Mervin

The Federalist, a collection of 85 papers, or essays, was written to explain and support ratification of the Constitution of 1787. Seventy-seven essays were first printed in New York City newspapers between October 27, 1787, and April 2, 1788. The complete set of 85 essays was published in May 1788 by McLean and Company of New York City.

Alexander Hamilton, the major author of The Federalist, wrote 51 of the 85 papers (Nos. 1, 6–9,11–13, 15–17, 21–36, 59–61, and 65–85). James Madison wrote 29 essays (Nos. 10, 14, 18–20, 37–58, and 62–63). Illness forced John Jay to withdraw from the project, and he wrote only five essays (Nos. 2–5 and 64). Each paper was signed with the pseudonym Publius, after Publius Valerius Publicola, a great defender of the Roman Republic of ancient times.

The first objective of The Federalist was to persuade the people of New York to ratify the Constitution; each paper was addressed “To the People of the State of New York” and published first in a New York newspaper. A second objective was to influence Americans in all 13 states to approve the Constitution.

The authors submerged their political differences in the overall pursuit of a common goal—ratification of the Constitution. Madison and Jay agreed with Hamilton that the Constitution was “a compromise of… many dissimilar interests and inclinations.” It did not exactly reflect the ideas on government of any one of the coauthors, but they agreed that it was the best frame of government achievable under the circumstances and far superior to the Articles of Confederation under which the country had functioned since 1781.

After ratification of the Constitution and formation of the federal government, Madison joined Thomas Jefferson in political clashes with Hamilton that led to the establishment of rival political parties: Federalist (Hamilton) versus Democratic-Republican (Jefferson/Madison). These conflicts, however, lay ahead. In 1787–88, Madison and Hamilton were a formidable team in defense of the Constitution.

Hamilton, Madison, and Jay readily agreed on the name of their projected series of essays, The Federalist. With this name, they scored a public relations victory against their opponents, who accepted by default the name of Anti-Federalists. This negative label connoted only opposition, with no constructive ideas to improve the government.

The authors of The Federalist agreed on certain fundamental principles of constitutional government: republicanism, federalism, separation of powers, and free government.

A republican government is one “in which the scheme of representation takes place” (The Federalist No. 10). It is based on the consent of the governed because power is delegated to a small number of citizens who are elected by the rest of the citizens.

In a federal republic, power is divided between a general (federal) government and several state governments. Two levels of government, each supreme in its own sphere, can exercise powers separately and directly on the people. But state governments can neither ignore nor contradict federal statutes that conform to the supreme law, the Constitution. This conception of federalism departed from traditional forms of government, known today as confederations, in which states retained full sovereignty over their internal affairs.

Publius proclaims in The Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” So the Constitution provides for a separation of governmental powers among three branches, according to function. But this separation of powers is not complete. Each branch has various constitutional means to participate in the affairs of the other branches, to check and balance their powers, and to prevent one branch of the government from dominating the others.

Republicanism, federalism, and separation of powers are all characteristics of free government. According to The Federalist, free government is popular government, limited by the supreme law of the Constitution, established to protect the security, liberty, and property of individuals. A free government is powerful enough to provide protection against external and internal threats and limited enough to prevent tyranny in any form. In particular, free government is designed to guard against the most insidious danger of government by the people—the tyranny of the majority over minorities. This principle applies equally to constitutional protection of religious, ethnic, racial, or other minority groups.

Since its publication in 1788, The Federalist has been viewed as an extraordinary work about the principles and practice of constitutional government. The Federalist is “the best commentary on the principles of government which ever was written,” wrote Thomas Jefferson to James Madison (Nov. 18, 1788). Chief Justice John Marshall agreed in this instance with Jefferson, his longtime political opponent. In Mc-Culloch v. Maryland (1819), John Marshall wrote that The Federalist was “entitled to great respect [by courts] expounding the Constitution.” Moreover, he wrote in Cohens v. Virginia (1821): “[The Federalist] is a complete commentary on our Constitution, and it is appealed to by all parties in the questions to which that instrument gave birth.” Ever since the founding period, lawyers, judges, politicians, and scholars have used The Federalist to guide their decisions about issues of constitutional government.

See also Constitutional democracy; Constitutionalism; Federalism; Republicanism; Separation of powers

Sources

• George Carey, The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989).
• Alexander Hamilton, James Madison, and John Jay, The Federalist, edited by Jacob E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961)

On 27 October 1787, the first essay of The Federalist, written under the pen name Publius, appeared in a New York City newspaper. Its author was Alexander Hamilton, who conceived the project of publishing an extended series of essays to support the ratification of the newly proposed Federal Constitution. Hamilton recruited two other prominent leaders as his co-authors: John Jay and James Madison. Together, they published seventy-seven newspaper essays by April 1788, and another eight appeared in the second volume of the first book edition. Hamilton is credited with writing fifty-one essays, Madison twenty-nine, and Jay, weakened by illness, just five. All three authors drew upon their extensive experience in national politics and the military and diplomatic struggle for independence. The two main authors also played critical roles in the maneuvers leading to the Federal Convention and the drafting of the Constitution, and they also founded the rival schools of constitutional interpretation that developed after it took effect. As a result, The Federalist has long been regarded as the most authoritative exposition of the original meaning of the Constitution, and the leading American contribution to Western political thought.

The division of assignments allowed the authors to tap their particular strengths. Hamilton, the more ardent nationalist, had seven years of service in the Continental Army, mostly as aide-de-camp to General Washington; he was also a close student of public finance and a successful attorney. It was therefore fitting that he wrote the essays emphasizing the necessity for an effective national union with adequate powers over national defense and revenue, as well as those examining the executive and judiciary. Madison's experience was primarily legislative; he was more engaged with basic questions of political theory, and more concerned than Hamilton with balancing the authority of the Union and the states. It was equally fitting, then, that he wrote the leading essays on Congress and federalism, as well as addressing anti-Federalist objections that the Constitution violated fundamental maxims of free government.

Two of those maxims were closely associated with one of the most celebrated works of eighteenth-century political science, Montesquieu's The Spirit of the Laws. One of these maxims argued that republican government could safely operate only in small, homogeneous societies where the citizens shared similar interests and the virtue to subordinate private interest to public good. The other held that liberty depended upon a rigid separation of both the functions and personnel of the different departments of government. Madison challenged these propositions in two famous essays. "Federalist 10" argued that liberty would be more secure in a large, diverse republic, where "factious majorities" would find it more difficult to gain control of the government. "Federalist 51" concluded a series of essays on the separation of powers by arguing that the task of maintaining equilibrium among the departments required giving the members of each branch the incentives and means to protect their constitutional powers. Hamilton's best-known essay is "Federalist 78," which offered an early defense of the theory of judicial review, enabling courts to measure legislative and executive acts against constitutional standards.

Bibliography

Adair, Douglass. "The Tenth Federalist Revisited." William and Mary Quarterly, 3d ser., 8 (1951): 48–67.

———. "'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist." Huntington Library Quarterly, 20 (1957): 343–360.

Cooke, Jacob, ed. The Federalist. Middletown, Conn.: Wesleyan University Press, 1961.

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, N.Y.: Cornell University Press, 1984.

Kesler, Charles R. ed. Saving the Revolution: The Federalist Papers and the American Founding. New York: Free Press, 1987.

—Jack Rakove

A collection of eighty-five essays by Alexander Hamilton (1755-1804), James Madison (1751-1836), and John Jay (1745-1829) that explain the philosophy and defend the advantages of the U.S. Constitution.

The essays that constitute The Federalist Papers were published in various New York newspapers between October 27, 1787, and August 16, 1788, and appeared in book form in March and May 1788. They remain important statements of U.S. political and legal philosophy as well as a key source for understanding the U.S. Constitution.

The Federalist Papers originated in a contentious debate over ratification of the U.S. Constitution. After its completion by the Constitutional Convention on September 17, 1787, the Constitution required ratification by nine states before it could become effective. A group known as the Federalists favored passage of the Constitution, and the Anti-Federalists opposed it.

To secure its ratification in New York State, Federalists Hamilton, Madison, and Jay published the Federalist essays under the pseudonym Publius, a name taken from Publius Valerius Poplicola, a leading politician of the ancient Roman republic. Their purpose was to clarify and explain the provisions of the Constitution, expounding its benefits over the existing system of government under the Articles of Confederation.

Hamilton, a New Yorker who served as treasury secretary under President George Washington from 1789 to 1795, was the principal architect of The Federalist Papers. Hamilton conceived the idea for the book and enlisted the aid of Madison and Jay. He is thought to have written fifty-one of the essays: numbers 1, 6-9, 11-13, 15-17, 21-36, 59-61, and 65-85. Madison, who served two terms as the president of the United States, from 1809 to 1817, probably authored twenty-six of the papers: 10, 14, 37-58, and 62-63. Madison and Hamilton probably wrote papers 18-20 together. Jay, who sat as the first chief justice of the U.S. Supreme Court, from 1789 to 1795, wrote five essays: 2-5 and 64.

The essays presented a number of arguments with great importance for the founding of the U.S. government. They forcefully made the case for a strong union between the states (numbers 1-14); the ineffectiveness of the Articles of Confederation (15-22); the advantages of a strong, or "energetic," central government (23-36); and a republican government's ability to provide political stability as well as liberty (35-51). The later essays examined the roles of the three branches of government — the legislative (52-66), the executive (67-77), and the judicial (78-83) — as well as the issue of a bill of rights (84). The last essay consists of a closing summary (85). In making their arguments, the authors also discussed the benefits of federalism, under which the state and federal governments would each have a distinct sphere of power.

Several of the essays have been especially influential in U.S. political history and philosophy. The most famous, Federalist, no. 10, by Madison, concerns the dangers and remedies of factionalism for a republican government. Madison, seeking a "republican remedy for the diseases most incident to republican government," argued that a large republic of the kind envisioned by the Constitution will be less likely to fall victim to disputes between different factions than will a small republic. Here and in essay 51, Madison claimed that the diversity, or "plurality," of interests that exist in a large commercial republic will prevent any one faction from uniting to deprive the rights of a smaller faction.

The essays on the role of the federal judiciary have had a lasting influence on U.S. law. Essay 78 contains an important defense of the principle of judicial review, the power that allows the U.S. Supreme Court to strike down laws passed by Congress. In number 80, Hamilton argued for the establishment of a system of federal courts separate from state courts, an idea that was realized several years later.

See: Constitution of the United States.

by Alexander Hamilton and James Madison, 1787-1788

Between October 1787 and August 1788, Alexander Hamilton, John Jay, and James Madison wrote a series of essays that appeared in various New York newspapers under the pseudonym "Publius."The Federalist, as the combined essays are called, was written to combat anti-federalism. Hoping to persuade the public of the necessity for the Constitution, Publius gave excellent arguments for adopting it and discarding the Articles. The Federalist stresses the urgent need for an adequate central government and the ease with which the republican form of government would be adapted to the large expanse of territory and widely divergent interests found in the United States. It was immediately recognized as the most powerful defense of the new Constitution and hailed as a classic in constitutional theory. Jefferson called The Federalist "the best commentary on the principles of government which ever was written." Of the eighty-five essays, John Jay definitely wrote five, Madison twenty-six, and Hamilton fifty-one. The authorship of the other three is in doubt. The following selection includes essays by Hamilton and Madison.

THE FEDERALIST NO. 1 (HAMILTON)

After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, 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. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions, and prejudices little favorable to the discovery of truth.

Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the state establishments; and the perverted ambition of another class of men who will either hope to aggrandize themselves by the confusions of their country or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable - the honest errors of minds led astray by preconceived jealousies and fears.

So numerous, indeed, and so powerful are the causes which serve to give a false bias to the judgment that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.

And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty.

An overscrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have over-turned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.

In the course of the preceding observations, I have had an eye, my fellow citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.

I propose, in a series of papers, to discuss the following interesting particulars: the utility of the Union to your political prosperity; the insufficiency of the present Confederation to preserve that Union; the necessity of a government at least equally energetic with the one proposed, to the attainment of this object; the conformity of the proposed Constitution to the true principles of republican government; its analogy to your own state constitution; and, lastly, the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.

In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections, which shall have made their appearance, that may seem to have any claim to your attention.

It may perhaps be thought superfluous to offer arguments to prove the utility of the Union, a point, no doubt, deeply engraved on the hearts of the great body of the people in every state, and one which, it may be imagined, has no adversaries. But the fact is that we already hear it whispered in the private circles of those who oppose the new Constitution that the thirteen states are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole. This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union.

THE FEDERALIST NO. 10 (MADISON)

Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.

The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true.

It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand 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.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. 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. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment of different leaders ambitiously contending for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities that, where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property.

Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors and those who are debtors fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment and, not improbably, corrupt his integrity. With equal, nay, with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party or, in other words, the most powerful faction must be expected to prevail.

Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? [These] are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. 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 the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or 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. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

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. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit and the most diffusive and established character.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect: the great and aggregate interests being referred to the national, the local and particular to the state legislatures.

The other point of difference is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. Besides other impediments it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears that the same advantage which a republic has over a democracy, in controlling the effects of factions, is enjoyed by a large over a small republic - is enjoyed by the Union over the states composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union increase this security? Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

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. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.

In the extent, and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

THE FEDERALIST NO. 14 (MADISON)

We have seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of a prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find.

The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is that, in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.

To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and, among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.

Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government by the simple agency of which the will of the largest political body may be concentrated, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.

As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the center which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years the representatives of the states have been almost continually assembled, and that the members from the most distant states are not chargeable with greater intermissions of attendance than those from the states in the neighborhood of Congress.

That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of 31°, on the west the Mississippi, and on the north an irregular line running in some instances beyond 45°, in others falling as low as 42°. The southern shore of Lake Erie lies below that latitude. Computing the distance between 31° and 45°, it amounts to 973 common miles; computing it from 31° to 42°, to 764 ¹/₂ miles. Taking the mean for the distance, the amount will be 868 ³/₄ miles. The mean distance from the Atlantic to the Mississippi does not probably exceed 750 miles.

On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union.

THE FEDERALIST NO. 39 (MADISON)

The last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking.

The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers to the constitutions of different states, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised in the most absolute manner by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with a hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, 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 a limited period, or during good behavior. 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; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic. 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; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

According to the constitution of every state in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the coordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.

On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress and the senate of Maryland, derives its appointment indirectly from the people. The president is indirectly derived from the choice of the people, according to the example in most of the states. Even the judges, with all other officers of the Union, will, as in the several states, be the choice, though a remote choice, of the people themselves.

The duration of the appointments is equally conformable to the republican standard and to the model of state constitutions. The House of Representatives is periodically elective, as in all the states; and for the period of two years as in the state of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the senate of Maryland, and but two more than that of the senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware the chief magistrate is elected for three years, and in South Carolina for two years. In the other states the election is annual.

In several of the states, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case and the example of the state constitutions.

Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments; and in its express guaranty of the republican form to each of the latter.

"But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states; instead of which, they have framed a national government, which regards the Union as a consolidation of the states." And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision.

Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and, thirdly, how far the duty they owed to their country could supply any defect of regular authority.

First, in order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state - the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union nor from that of a majority of the states. It must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves.

Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the states as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.

The next relation is to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the states, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the states in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations from so many distinct and coequal bodies politic. From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features.

The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government.

But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it not only an authority over the individual citizens but an indefinite supremacy over all persons and things so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them within its own sphere. In this relation, then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.

It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each state in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances toward the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal and partakes of the national character.

The proposed Constitution, therefore, 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 the 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.

THE FEDERALIST NO. 49 (MADISON)

The author [Jefferson] of the Notes on the State of Virginia, quoted in the last paper, has subjoined to that valuable work the draft of a constitution which had been prepared in order to be laid before a convention expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like everything from the same pen, marks a turn of thinking original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own and, as it immediately relates to the subject of our present inquiry, ought not to be overlooked.

His proposition is: "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two-thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose."

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commission, can alone declare its true meaning, and enforce its observance?

There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.

In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one-third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle than against the principle itself.

In the next place, it may be considered as an objection inherent in the principle that, as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.

If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.

The danger of disturbing the public tranquillity by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made or the abuses to be reformed could mingle its leaven in the operation. The future situations in which we must expect to be usually placed do not present any equivalent security against the danger which is apprehended.

But the greatest objection of all is that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations.

The members of the executive and judiciary departments are few in number and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.

But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters on whom everything depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.

It might, however, sometimes happen that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of preexisting parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. 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.

THE FEDERALIST NO. 78 (HAMILTON)

We proceed now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it and to its extent. To these points, therefore, our observations shall be confined.

The manner of constituting it seems to embrace these several objects: first, the mode of appointing the judges; second, the tenure by which they are to hold their places; third, the partition of the judiciary authority between different courts, and their relations to each other.

First, as to the mode of appointing the judges: this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the last two numbers that nothing can be said here which would not be useless repetition.

Second, as to the tenure by which the judges are to hold their places: this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility.

According to the plan of the Convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the state constitutions, and among the rest, to that of this state. Its propriety having been drawn into question by the adversaries of that plan is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that, though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive.

For I agree that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution and, in a great measure, as the citadel of the public justice and the public security.

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; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact - and must be regarded by the judges as - a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute; the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion in determining between two contradictory laws is exemplified in a familiar instance. It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable that, between the interfering acts of an equal authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, 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.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove anything, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government and serious oppressions of the minor party in the community.

Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of the majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body.

Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where the legislative invasions of it had been instigated by the major voice of the community.

But it is not with a view to infractions of the Constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.

The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice by which he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of the public and private confidence, and to introduce in its stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. 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; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.

Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

THE FEDERALIST NO. 84 (HAMILTON)

The most considerable of the remaining objections is that the plan of the Convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this state, who profess an unlimited admiration for its Constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favor of particular privileges and rights, which, in substance, amount to the same thing; the other is that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

To the first, I answer that the Constitution proposed by the Convention contains, as well as the constitution of this state, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article I, Section 3, clause 7 - "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9 of the same article, clause 2 - "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3 - "No bill of attainder or ex post facto law shall be passed." Clause 7 - "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state." Article III, Section 2, clause 3 - "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." Section 3 of the same article - "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3 of the same section - "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."

It may well be a question whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this state. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of titles of nobility, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone in reference to the latter are well worthy of recital: "To bereave a man of life or by violence to confiscate his estate, without accusation or trial would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and, therefore, a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the bulwark of the British Constitution."

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the cornerstone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people.

To the second - that is, to the pretended establishment of the common and statute law by the Constitution - I answer that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and, of course, have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688 and afterward thrown into the form of an act of Parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations.

"We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal 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.

But a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the Convention on this score are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish to men disposed to usurp a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two. In the first place, I observe, that there is not a syllable concerning it in the constitution of this state; in the next, I contend that whatever has been said about it in that of any other state amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved?" What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its constitution, and, conversely, the constitution of each state is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the Convention; comprehending various precautions for the public security which are not to be found in any of the state constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan.

Adverting, therefore, to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the Convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can, with no propriety, be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper [say the objectors] to confer such large powers as are proposed upon the national government, because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent of the conduct of the representative body." This argument, if it proves anything, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union cannot be safely entrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination.

What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the state legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must, therefore, depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create will be overbalanced by the effects of the vigilance of the state governments. The executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives than they can be by any means they now possess of that of their state representatives.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common sense, so it is also an established doctrine of political law, that "states neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."

The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.

The great bulk of the citizens of America are with reason convinced that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government - a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased, but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated is the multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present government are the same which will be required under the new. There are now a secretary of war, a secretary of foreign affairs, a secretary for domestic affairs, a Board of Treasury, consisting of three persons, a treasurer, assistants, clerks, etc. These officers are indispensable under any system and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of state for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The states individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the state or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.

Where, then, are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if anything, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.

Let us now see what there is to counter-balance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.

But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the state legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several states amount to 2,000 and upward, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or a fifth of that number. The Congress, under the proposed government, will do all the business of the United States themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the state legislatures will be clear gain and will alone form an article of saving which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.

The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that, while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.

The Federalist Papers were a series of articles written under the pen name of Publius by Alexander Hamilton, James Madison, and John Jay. Their purpose was to gain popular support for the yet to be written Constitution.

A series of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay in the late 1780s to persuade the voters of New York to adopt the Constitution. The essays are considered a classic defense of the American system of government, as well as a classic practical application of political principles.

Title page of the first printing of the Federalist Papers (1788).

The Federalist Papers are a series of 85 articles advocating the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788. A compilation of these and eight others, called The Federalist; or, The New Constitution, was published in two volumes in 1788 by J. and A. McLean.^[1] The series's correct title is The Federalist; the title The Federalist Papers did not emerge until the twentieth century.

The Federalist remains a primary source for interpretation of the U.S. Constitution, as the essays outline a lucid and compelling version of the philosophy and motivation of the proposed system of government.^[2] The authors of The Federalist wanted both to influence the vote in favor of ratification and to shape future interpretations of the Constitution. According to historian Richard B. Morris, they are an "incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer."^[3]

At the time of publication, the authorship of the articles was a closely-guarded secret, though astute observers guessed that Hamilton, Madison, and Jay were the likely authors. Following Hamilton's death in 1804, a list that he drew up became public; it claimed fully two-thirds of the essays for Hamilton, including some that seemed more likely the work of Madison (Nos. 49-58, 62, and 63). The scholarly detective work of Douglass Adair in 1944 postulated the following assignments of authorship, confirmed in 1964 by a computer analysis of the text:

• Alexander Hamilton (51 articles: nos. 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85)
• James Madison (29 articles: nos. 10, 14, 37–58, and 62–63), and
• John Jay (5 articles: 2–5 and 64).
• Nos. 18–20 were the result of a collaboration between Madison and Hamilton.^[1]

The authors used the pseudonym "Publius," in honor of Roman consul Publius Valerius Publicola.^[4] Madison, whom posterity generally credits as the father of the Constitution despite his repeated rejection of the honor during his lifetime, became a leading member of the U.S. House of Representatives from Virginia (1789-1797), Secretary of State (1801-1809), and ultimately the fourth President of the United States.^[5] Hamilton, who had been a leading advocate of national constitutional reform throughout the 1780s and represented New York at the Constitutional Convention, in 1789 became the first Secretary of the Treasury, a post he held till his resignation in 1795. John Jay, who had been secretary for foreign affairs under the Articles of Confederation from 1784 through their expiration in 1789, became the first Chief Justice of the United States in 1789, stepping down in 1795 to accept election as governor of New York, a post he held for two terms, retiring in 1801.

There are many highlights among the essays comprising The Federalist. Federalist No. 10, in which Madison discusses the means of preventing rule by majority faction and advocates an extended republic, is generally regarded as the most important of the 85 articles from a philosophical perspective; it is complemented by Federalist No. 14, in which Madison takes the measure of the United States, declares it appropriate for an extended republic, and concludes with a memorable defense of the constitutional and political creativity of the Federal Convention.^[6] In Federalist No. 84, Hamilton makes the case that there is no need to amend the Constitution by adding a Bill of Rights, insisting that the various provisions in the proposed Constitution protecting liberty amount to a bill of rights. Federalist No. 78, also written by Hamilton, lays the groundwork for the doctrine of judicial review by federal courts of federal legislation or executive acts. Federalist No. 70 presents Hamilton's case for a one-man chief executive. In Federalist No. 39, Madison presents the clearest exposition of what has come to be called "Federalism." In Federalist No. 51, Madison distills arguments for checks and balances in a memorable essay often quoted for its justification of government as "the greatest of all reflections on human nature."

Contents 1 History 1.1 Origins 1.2 Publication 1.3 Disputed essays 1.4 Influence on the ratification debates 2 Structure and content 2.1 Opposition to the Bill of Rights 3 Modern approaches and interpretations 3.1 Judicial use 4 See also 5 References 6 Notes 7 Further reading 8 External links 8.1 Text of the Federalist Papers

History

Origins

Alexander Hamilton, author of the majority of the Federalist Papers

The Federal Convention sent the proposed Constitution to the Confederation Congress, which at the end of September 1787 submitted it to the states for ratification. Immediately, the Constitution became the target of many articles and public letters written by opponents of the Constitution. For instance, the important Anti-Federalist authors "Cato" and "Brutus" debuted in New York papers on September 27 and October 18, 1787, respectively.^[7] Hamilton decided to launch a measured and extensive defense and explanation of the proposed Constitution as a response to the opponents of ratification, addressing the people of the state of New York. He wrote in Federalist No. 1 that the series would "endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention."^[8]

Hamilton recruited collaborators for the project. He enlisted John Jay, who after four strong essays (Federalist Nos. 2, 3, 4, and 5), fell ill and contributed only one more essay, Federalist No. 64, to the series; though he wrote a pamphlet in the spring of 1788, An Address to the People of the State of New-York, that made his distilled case for the Constitution (Hamilton cited it approvingly in Federalist No. 85). James Madison, present in New York as a Virginia delegate to the Confederation Congress, was recruited by Hamilton and Jay and became Hamilton's major collaborator. Gouverneur Morris and William Duer were also apparently considered; Morris turned down the invitation and Hamilton rejected three essays written by Duer.^[9] Duer later wrote in support of the three Federalist authors under the name "Philo-Publius," or "Friend of Publius."

Hamilton chose "Publius" as the pseudonym under which the series would be written. While many other pieces representing both sides of the constitutional debate were written under Roman names, Albert Furtwangler contends that "'Publius' was a cut above 'Caesar' or 'Brutus' or even 'Cato.' Publius Valerius was not a late defender of the republic but one of its founders. His more famous name, Publicola, meant 'friend of the people.'"^[4] It was not the first time Hamilton had used this pseudonym: in 1778, he had applied it to three letters attacking Samuel Chase.

Publication

An advertisement for The Federalist.

The Federalist Papers appeared in three New York newspapers: the Independent Journal, the New-York Packet, and the Daily Advertiser, beginning on October 27, 1787. Between them, Hamilton, Madison and Jay kept up a rapid pace, with at times three or four new essays by Publius appearing in the papers in a week. Garry Wills observes that the pace of production "overwhelmed" any possible response: "Who, given ample time could have answered such a battery of arguments? And no time was given."^[10] Hamilton also encouraged the reprinting of the essay in newspapers outside New York state, and indeed they were published in several other states where the ratification debate was taking place. However, they were only irregularly published outside New York, and in other parts of the country they were often overshadowed by local writers.^[11]

James Madison, Hamilton's major collaborator, later President of the United States and "Father of the Constitution"

The high demand for the essays led to their publication in a more permanent form. On January 1, 1788, the New York publishing firm J. & A. McLean announced that they would publish the first thirty-six essays as a bound volume; that volume was released on March 2 and was titled The Federalist. New essays continued to appear in the newspapers; Federalist No. 77 was the last number to appear first in that form, on April 2. A second bound volume containing the last forty-nine essays was released on May 28. The remaining eight papers were later published in the newspapers as well.^[12]

A number of later publications are worth noting. A 1792 French edition ended the collective anonymity of Publius, announcing that the work had been written by "MM Hamilton, Maddisson E Gay," citizens of the State of New York. In 1802, George Hopkins published an American edition that similarly named the authors. Hopkins wished as well that "the name of the writer should be prefixed to each number," but at this point Hamilton insisted that this was not to be, and the division of the essays between the three authors remained a secret.^[13]

The first publication to divide the papers in such a way was an 1810 edition that used a list left by Hamilton to associate the authors with their numbers; this edition appeared as two volumes of the compiled "Works of Hamilton." In 1818, Jacob Gideon published a new edition with a new listing of authors, based on a list provided by Madison. The difference between Hamilton's list and Madison's formed the basis for a dispute over the authorship of a dozen of the essays.^[14]

Both Hopkins's and Gideon's editions incorporated significant edits to the text of the papers themselves, generally with the approval of the authors. In 1863, Henry Dawson published an edition containing the original text of the papers, arguing that they should be preserved as they were written in that particular historical moment, not as edited by the authors years later.^[15]

Modern scholars generally use the text prepared by Jacob E. Cooke for his 1961 edition of The Federalist; this edition used the newspaper texts for essays nos. 1-76 and the McLean edition for essays nos. 77-85.^[16]

Disputed essays

See also: List of Federalist Papers

The authorship of seventy-three of the Federalist essays is fairly certain. Twelve of these essays are disputed over by some scholars, though the modern consensus is that Madison wrote essays Nos. 49-58, with Nos. 18-20 being products of a collaboration between him and Hamilton; No. 64 was by John Jay. Some newer evidence suggests James Madison as the author. The first open designation of which essay belonged to whom was provided by Hamilton, who in the days before his ultimately fatal gun duel with Aaron Burr provided his lawyer with a list detailing the author of each number. This list credited Hamilton with a full sixty-three of the essays (three of those being jointly written with Madison), almost three quarters of the whole, and was used as the basis for an 1810 printing that was the first to make specific attribution for the essays.^[17]

Madison did not immediately dispute Hamilton's list, but provided his own list for the 1818 Gideon edition of The Federalist. Madison claimed twenty-nine numbers for himself, and he suggested that the difference between the two lists was "owing doubtless to the hurry in which [Hamilton's] memorandum was made out." A known error in Hamilton's list—Hamilton incorrectly ascribed No. 54 to John Jay, when in fact Jay wrote No. 64—has provided some evidence for Madison's suggestion.^[18]

Statistical analysis has been undertaken on several occasions to try to decide the authorship question based on word frequencies and writing styles. Nearly all of the statistical studies show that the disputed papers were written by Madison.^[19][20]

Influence on the ratification debates

The Federalist was written to support the ratification of the Constitution, specifically in New York. Whether they succeeded in this mission is questionable. Separate ratification proceedings took place in each state, and the essays were not reliably reprinted outside of New York; furthermore, by the time the series was well underway, a number of important states had already ratified it, for instance Pennsylvania on December 12. New York held out until July 26; certainly The Federalist was more important there than anywhere else, but Furtwangler argues that it "could hardly rival other major forces in the ratification contests"--specifically, these forces included the personal influence of well-known Federalists, for instance Hamilton and Jay, and Anti-Federalists, including Governor George Clinton.^[21] Further, by the time New York came to a vote, ten states had already ratified the Constitution and it had thus already passed — only nine states had to ratify it for the new government to be established among them; the ratification by Virginia, the tenth state, placed pressure on New York to ratify. In light of that, Furtwangler observes, "New York's refusal would make that state an odd outsider."^[22]

As for Virginia, which only ratified the Constitution at its convention on June 25, Hamilton writes in a letter to Madison that the collected edition of The Federalist had been sent to Virginia; Furtwangler presumes that it was to act as a "debater's handbook for the convention there," though he claims that this indirect influence would be a "dubious distinction."^[23] Probably of greater importance to the Virginia debate, in any case, were George Washington's support for the proposed Constitution and the presence of Madison and Edmund Randolph, the governor, at the convention arguing for ratification.

Another purpose that The Federalist was supposed to serve was as a debater's handbook during the ratification controversy, and indeed advocates for the Constitution in the conventions in New York and Virginia used the essays for precisely that purpose.

Structure and content

In Federalist No. 1, which served as the introduction to the series, Hamilton listed six topics to be covered in the subsequent articles:

1. "The utility of the UNION to your political prosperity" – covered in No. 2 through No. 14
2. "The insufficiency of the present Confederation to preserve that Union"—covered in No. 15 through No. 22
3. "The necessity of a government at least equally energetic with the one proposed to the attainment of this object"—covered in No. 23 through No. 36
4. "The conformity of the proposed constitution to the true principles of republican government"—covered in No. 37 through No. 84
5. "Its analogy to your own state constitution"—covered in No. 85
6. "The additional security which its adoption will afford to the preservation of that species of government, to liberty and to prosperity"—covered in No. 85.^[24]

Furtwangler notes that as the series grew, this plan was somewhat changed. The fourth topic expanded into detailed coverage of the individual articles of the Constitution and the institutions it mandated, while the two last topics were merely touched on in the last essay.

The papers can be broken down by author as well as by topic. At the start of the series, all three authors were contributing; the first twenty papers are broken down as eleven by Hamilton, five by Madison and four by Jay. The rest of the series, however, is dominated by three long segments by a single writer: No. 21 through No. 36 by Hamilton, No. 36 through 58 by Madison, written while Hamilton was in Albany, and No. 65 through the end by Hamilton, published after Madison had left for Virginia.^[25]

Opposition to the Bill of Rights

The Federalist Papers (specifically Federalist No. 84) are notable for their opposition to what later became the United States Bill of Rights. The idea of adding a bill of rights to the constitution was originally controversial because the constitution, as written, did not specifically enumerate or protect the rights of the people, rather it listed the powers of the government and left all that remained to the states and the people. Alexander Hamilton, the author of Federalist No. 84, feared that such an enumeration, once written down explicitly, would later be interpreted as a list of the only rights that people had.

However, Hamilton's opposition to a Bill of Rights was far from universal. Robert Yates, writing under the pseudonym Brutus, articulated this view point in the so-called Anti-Federalist No. 84, asserting that a government unrestrained by such a bill could easily devolve into tyranny. Other supporters of the Bill argued that a list of rights would not and should not be interpreted as exhaustive; i.e., that these rights were examples of important rights that people had, but that people had other rights as well. People in this school of thought were confident that the judiciary would interpret these rights in an expansive fashion. The matter was further clarified by the Ninth Amendment.

Modern approaches and interpretations

John Jay, author of five of the Federalist Papers, later became the first Chief Justice of the Supreme Court

Judicial use

Federal judges, when interpreting the Constitution, frequently use the Federalist Papers as a contemporary account of the intentions of the framers and ratifiers.^[26] They have been applied on issues ranging from the power of the federal government in foreign affairs (in Hines v. Davidowitz) to the validity of ex post facto laws (in the 1798 decision Calder v. Bull, apparently the first decision to mention The Federalist).^[27] By 2000^[update], The Federalist had been quoted 291 times in Supreme Court decisions.^[28]

The amount of deference that should be given to the Federalist Papers in constitutional interpretation has always been somewhat controversial. As early as 1819, Chief Justice John Marshall noted in the famous case McCulloch v. Maryland, that "the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained."^[29] Madison himself believed not only that The Federalist Papers were not a direct expression of the ideas of the Founders, but that those ideas themselves, and the "debates and incidental decisions of the Convention," should not be viewed as having any "authoritative character." In short, "the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses."^[30][31]

See also

• American philosophy

References

• Adair, Douglass. Fame and the Founding Fathers. Indianapolis: Liberty Fund, 1974. A collection of essays; that used here is "The Disputed Federalist Papers."
• Frederick Mosteller and David L. Wallace. Inference and Disputed Authorship: The Federalist. Addison-Wesley, Reading, Mass., 1964.
• Furtwangler, Albert. The Authority of Publius: A Reading of the Federalist Papers. Ithaca, New York: Cornell University Press, 1984.
• Wills, Gary. Explaining America: The Federalist, Garden City, NJ: 1981.

Notes

1. ^ ^{a b} Jackson, Kenneth T. The Encyclopedia of New York City: The New York Historical Society; Yale University Press; 1995. p. 194.
2. ^ Furtwangler, 17.
3. ^ Richard B. Morris, The Forging of the Union: 1781-1789 (1987) p. 309
4. ^ ^{a b} Furtwangler, 51.
5. ^ See, e.g. Ralph Ketcham, James Madison. New York: Macmillan, 1971; reprint ed., Charlottesville: University Press of Virginia, 1998. See also Irving N. Brant, James Madison: Father of the Constitution, 1787-1800. Indianapolis: Bobbs-Merrill, 1950.
6. ^ Wills, x.
7. ^ Furtwangler, 48-49.
8. ^ Gunn, Giles B. (1994). Early American Writing. Penguin Classics. pp. 540. ISBN 0140390871. http://books.google.com/books?id=OlphD37HAY4C&. 
9. ^ Furtwangler, 51-56.
10. ^ Wills, xii.
11. ^ Furtwangler, 20.
12. ^ The Federalist timeline at www.sparknotes.com.
13. ^ Adair, 40-41.
14. ^ Adair, 44-46.
15. ^ Henry Cabot Lodge, ed (1902). The Federalist, a Commentary on the Constitution of the United States. Putnam. pp. xxxviii–xliii. http://books.google.com/books?id=9S-HAAAAMAAJ. Retrieved 2009-02-16. 
16. ^ Alexander Hamilton, John Jay, and James Madison (Jacob E. Cooke, ed., The Federalist (Middletown, CT: Wesleyan University Press, 1961 and later reprintings). ISBN 978-0819560773.
17. ^ Adair, 46-48.
18. ^ Adair, 48.
19. ^ Mosteller and Wallace.
20. ^ Fung, Glenn, The disputed federalist papers: SVM feature selection via concave minimization, New York City, ACM Press, 2003. (9 pg pdf file)
21. ^ Furtwangler, 21.
22. ^ Furtwangler, 22.
23. ^ Furtwangler, 23.
24. ^ This scheme of division is adapted from Charles K. Kesler's introduction to The Federalist Papers (New York: Signet Classic, 1999) pp. 15-17. A similar division is indicated by Furtwangler, 57-58.
25. ^ Wills, 274.
26. ^ Lupu, Ira C.; "The Most-Cited Federalist Papers." Constitutional Commentary (1998) pp 403+; using Supreme Court citations, the five most cited were Federalist No. 42 (Madison) (33 decisions), Federalist No. 78 (Hamilton) (30 decisions), Federalist No. 81 (Hamilton) (27 decisions), Federalist No. 51 (Madison) (26 decisions), Federalist No. 32 (Hamilton) (25 decisions).
27. ^ See, among others, a very early exploration of the judicial use of The Federalist in Charles W. Pierson, "The Federalist in the Supreme Court," The Yale Law Journal, Vol. 33, No. 7. (May, 1924), pp. 728-735.
28. ^ Chernow, Ron. "Alexander Hamilton." Penguin Books, 2004. (p. 260)
29. ^ Arthur, John (1995). Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory. Westview Press. pp. 41. ISBN 0813323495. http://books.google.com/books?id=UZu-fuHdnNwC. 
30. ^ Madison to Thomas Ritchie, September 15, 1821. Quoted in Furtwangler, 36.
31. ^ Max Farrand, ed. (1911), The Records of the Federal Convention of 1787, Yale University Press, pp. 446–447, http://books.google.com/books?id=4VQSAAAAYAAJ&dq=%22the+legitimate+meaning+of+the+Instrument+must+be+derived+from+the+text+itself%22&source=gbs_summary_s&cad=0 

Further reading

• Dietze, Gottfried. The Federalist: A Classic on Federalism and Free Government, Baltimore: The Johns Hopkins Press, 1960.
• Epstein, David F. The Political Theory of the Federalist, Chicago: The University of Chicago Press, 1984.
• Gray, Leslie, and Wynell Burroughs. "Teaching With Documents: Ratification of the Constitution," Social Education, 51 (1987): 322-324.
• Kesler, Charles R. Saving the Revolution: The Federalist Papers and the American Founding, New York: 1987.
• Patrick, John J., and Clair W. Keller. Lessons on the Federalist Papers: Supplements to High School Courses in American History, Government and Civics, Bloomington, IN: Organization of American Historians in association with ERIC/ChESS, 1987. ED 280 764.
• Schechter, Stephen L. Teaching about American Federal Democracy, Philadelphia: Center for the Study of Federalism at Temple University, 1984. ED 248 161.
• Sunstein, Cass R. The Enlarged Republic--Then and Now, New York Review of Books, (March 26, 2009): Volume LVI, Number 5, 45. http://www.nybooks.com/articles/22453
• Webster, Mary E. The Federalist Papers: In Modern Language Indexed for Today's Political Issues. Bellevue, WA.: Merril Press, 1999.
• White, Morton. Philosophy, The Federalist, and the Constitution, New York: 1987.
• Yarbrough, Jean. "The Federalist". This Constitution: A Bicentennial Chronicle, 16 (1987): 4-9. SO 018 489.
• Zebra Edition. The Federalist Papers: (Or, How Government is Supposed to Work), Edited for Readability. Oakesdale, WA: Lucky Zebra Press, 2007.

External links

Wikisource has original text related to this article: The Federalist Papers

• Federalist Papers on the Bill of Rights
• Teaching the Federalist Papers

Text of the Federalist Papers

• Fully Linkable version of The Federalist Papers
• The Avalon Project at Yale Law School: The Federalist Papers
• The Federalist Papers at the Library of Congress
• The Federalist Papers etext from Project Gutenberg
• The Federalist Papers audio narration at Americana Phonic

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