Criticism: Overviews And General Studies
SOURCE: Carey, George W. Introduction to The Federalist: Design for a Constitutional Republic, pp. xi-xxiii. Urbana: University of Illinois Press, 1989.
[In the following excerpt, Carey provides an overview of The Federalist Papers, examining their inconsistencies and exploring modern critiques, interpretations, and misunderstandings of the text.]
The Federalist comprises eighty-five essays written by Alexander Hamilton, James Madison, and John Jay between October, 1787, and May, 1788, under the pseudonym “Publius” to help secure ratification of the proposed Constitution in New York state.1
But its status today as one of the three or four basic documents of our founding period—the others by common consent being the Declaration of Independence, the Constitution, and the Bill of Rights—derives from considerations that far transcend the immediate purpose of its authors.2 Indeed, some have gone so far as to rank it among the great classics of political thought because of its realistic analysis of and approach to the perennial problems associated with popular self-government.3 What is beyond question, however, is its place in the American political tradition as the single most authoritative source for understanding the character of our constitutional system.
The reasons for its lofty status in our political tradition are multiple and interrelated. Clearly the prestige of its authors, their prominence during the founding era, and especially the fact that one of them, James Madison, has come to be regarded as the father of the Constitution, have lent both respectability and authenticity to this work. Quite apart from the stature of its authors, however, its prominent position among our founding documents would still be secure. It is, to begin with, the most systematic and comprehensive treatment of this era that we have concerning the proposed Constitution. To be sure, it is an avowedly sympathetic treatment, one that puts the best possible light on the Framers' handiwork. But for this reason it is all the more invaluable. Precisely because Publius is obliged to acknowledge and refute the principal objections posed by the critics of the new system, he must go well beyond simply explaining the provisions of the proposed Constitution and their interrelationship. He is also obliged to delve into the whys and wherefores of its main features; to articulate and defend in the strongest terms possible the principles upon which they rest. What is more, in this enterprise he cannot avoid presenting us with a hierarchy of values and sense of priorities relative to its goals and operations which are not readily comprehended, if at all, from reading the Constitution with an innocent eye.
The Federalist, we may go so far as to say, provides us with what can appropriately be termed a “constitutional morality” which, of course, represents another reason for its centrality in our political tradition. That is, concomitant with its effort to render the proposed Constitution a coherent whole, it urges upon the rulers and ruled alike standards of behavior conducive to maintaining and perpetuating this coherence—e.g., the public's tranquility ought not be disturbed and its confidence in the regime undermined by unnecessarily submitting constitutional questions to it for resolution; the people should not tolerate representatives who exempt themselves from the operations of the laws they pass; the courts should exercise “judgment,” not “will,” which is the prerogative of the legislature. Sometimes this morality is presented more obliquely in the form of assumptions or presumptions central to key aspects of Publius's argument—e.g., that given the opportunity, the people's votes will center on “fit” characters; that sympathetic bonds between representatives and their constituents will serve to deter the representatives from betraying the public trust.
Because it does provide us with a constitutional morality, we have come to look upon The Federalist, with exceptions here or there, as revealing the intentions and motives of the Founding Fathers. It is not uncommon to find justices of the Supreme Court appealing to its authority in disputes over constitutional questions ranging from the prerogatives and responsibilities of the respective departments of government to the proper relationship between national and state authorities.4 Such is clearly the case, too, among students of the American political tradition, who have, since the turn of the twentieth century, increasingly come to look upon it as the most authoritative source for understanding the theory and “spirit” behind our constitutional order—a theory and spirit which many, if not most, would contend still prevails in the operations of the system.
MAJOR PROBLEM AREAS
While there is no gainsaying the central role of The Federalist for an understanding of the American political tradition, serious differences do arise over the character and substance of its teachings—differences so basic and substantial as to raise the question of whether we can ever understand our political tradition, much less the nature of the regime that the Founders sought to establish. This concern may be put as follows: In recent decades, The Federalist has come to be viewed by students of the American political tradition as embracing mutually inconsistent positions and values. These inconsistencies, it is further contended, not only reveal a good deal about Publius's real motives and ends, but those of the Founding Fathers as well. From their perspective, more concretely, The Federalist represents an ambitious but futile effort to wrap the mantle of republicanism around a regime designed to protect minorities of various descriptions of wealth and status from the leveling demands of popular majorities.5
In their earliest and crudest form, the essential outlines of the picture most frequently drawn by these critics ran roughly as follows: contrary to what he writes at various places in The Federalist, Publius shared the Framers' conviction that the democratic and egalitarian impulses fed by the rhetoric of the Declaration and unleashed by the Revolution had to be restrained.6 His positions reveal that he shared the Founders' distrust of the people and their low estimate of man's inherent nature. So much, it is contended, is evident from his defense of the separation of powers, which would allow the Senate and president, both elected through processes designed to insure their allegiance to the privileged classes, to block the democratic impulses of the House of Representatives. What is more, so this line of attack runs, if these institutions should fail, or if, perchance, they were to join the House in common cause, the Supreme Court, whose members are selected through a process that virtually insures a “conservative” outlook and loyalty to entrenched interests, with its power of judicial review would pose the final and impassable barricade to truly popular government.
The more modern and sophisticated versions of this theme take the form of arguing that Publius, more clearly than even the Framers, could see that the government of an extended union such as that envisioned under the proposed system would be relatively inert and largely immune to majority pressures. At the very least, the extensiveness of the union, coupled with the multiplicity and variety of interests it embraces, would render the formation of ruling majority coalitions very difficult. Moreover, even if such coalitions were to form, the separation of powers would afford opposing interests or coalitions ample opportunity to block the will of the majority. By this account, then, Publius's legacy is a system which, to a great extent, incorporates Calhoun's “concurrent majority” or “concurrent consent” principle,7 wherein, on any given measure, powerful groups can exercise a veto over laws affecting their interests or, short of this, can secure important modifications and changes in such laws to make them more palatable. As a consequence, so this critique runs, our national government is not only most attentive to the better organized and more affluent interests (which belies its presumably republican character), it is also frequently paralyzed by these interests. This paralysis, in turn, renders it incapable of comprehensively meeting and dealing with the long-term and deep-seated social and economic problems confronting the nation8—a deplorable and dangerous state of affairs exacerbated by the federal character of the system which further disperses authority and power.9
This, in brief, constitutes the essentials of the modern liberal critique of The Federalist, which, since the turn of the twentieth century, has gained currency in academic circles. But, astonishingly enough, many conservative commentators have come to accept Publius's legacy in similar terms, albeit with one highly significant difference: they look upon these presumed undemocratic features with an approving eye.10The Federalist, in their view, articulates the Framers' belief in the sanctity of the rights of private property, rights which constitute the foundation for securing and perpetuating a truly free society. They see the separation of powers as designed to curb the democratic excesses, particularly the insatiable demand for greater equality, which would adversely affect these rights. Thus, in their view, one of the chief functions of the Senate and the president is to temporize or thwart these destructive and egalitarian impulses that might find expression in the popularly elected House. But if these institutions should prove unequal to the task, the conservatives conceive the Supreme Court as specially designed or constructed to thwart infringements on inviolable property rights.11
Nor, unlike their liberal counterparts, are modern conservatives particularly concerned about the dispersion of authority inherent in the constitutional design. On the whole they consider federalism a vital principle, not only for preventing a dangerous concentration of powers in the hands of the national government, but also for reinforcing and perpetuating the traditions of self-government by allowing for meaningful grass roots political participation at the state and local levels. Consequently, of special concern to conservatives in recent decades has been the nationalization of the Bill of Rights by the Supreme Court—a process wherein, they hold, the Court has abandoned its intended role as an impartial arbiter between the state and national governments by intruding upon the sovereign prerogatives of the states.
Leaving to one side the normative dimensions of the conservative-liberal perspectives and their views concerning the changes that have occurred, we see that both share very similar views relative to the nature of the Constitution and its intended functions. Moreover, as we have said, in no small measure their views are derived from their readings of The Federalist. Yet what cannot help but strike even a casual reader of The Federalist is that it conveys an almost entirely different picture of the character of the Constitution and its place in our tradition. For instance, the clear message of the appeal in the last paragraph of Federalist 14 is that the movement toward the new system represents a progression quite in keeping with the spirit and principles of the Revolution, as well as with the political developments that followed in its wake. “They [the American people] accomplished a revolution, which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate” (104-5).12 And, in this regard, as Publius makes clear at various junctures in The Federalist, the proposed system is designed to correct the potentially fatal defects of the Articles. From his perspective, at least, the proposed Constitution is an effort to improve and perpetuate the union that grew out of the Revolution.
Indeed, the very first paragraph of The Federalist poses the question of whether the abiding principles of the Declaration of Independence can be realized in practice. That is, in raising the concern of whether “societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force” (33), Publius is also asking, in effect, whether the people are really capable of exercising in practice that fundamental right proclaimed in the Declaration, namely, “to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.” Moreover, like the Declaration, Publius's enterprise is predicated on the proposition that there is an obligation to show the reasons and need for change: that fundamental changes in the constitutional order are not to be undertaken for “light and transient causes.” In other words, there is no incompatibility between Publius's overriding purpose and the basic values of the Declaration. On the contrary, his goal and mode of procedure are precisely those we should expect from one who has accepted the fundamental principles of the Declaration.
But it is not only with regard to the relationship of the Constitution to the Declaration that we find a discrepancy between what Publius writes and the conservative-liberal interpretation. Publius, as we shall see, has no doubts that the deliberate sense of the community will prevail under the forms of the proposed Constitution (e.g., 63:384). While he is concerned about rule by unjust majorities (majority factions), he sees the futility of providing against “this evil … by creating a will in the community independent of the majority” (51:323). The solution to this problem provided by the proposed system he regards as faithful to “the spirit and the form of popular government” (10:80). In fact, he boldly asserts that “a republican remedy for the diseases [majority factions] most incident to republican government” is to be found “in the extent and proper structure of the Union” (10:84).
Equally important, he seems to pride himself on the fact that the proposed system is an “unmixed” republic, i.e., one whose foundations are “wholly popular” (14:100-101). There are, he writes, “no qualifications of wealth, of birth, of religious faith, or of civil profession” for elective office under the proposed system. The path to elective office, as he puts it, is open to “every citizen whose merit may recommend him to the esteem and confidence of his country.” Likewise, the electorate for members of the House, as he sees it, is to be “the great body of the people of the United States” comprised of those who are eligible to vote for members of the lower chambers in the states—“not the rich, more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune” (57:351).
Nor is it fair to say that Publius rationalizes a system built upon the Calhounian “concurrent majority” principle. On the contrary, he is critical of the rules governing the voting in the Congress of the Articles for reasons that go beyond the equal suffrage of the states—a provision which, we cannot help but note in passing, he regarded as contrary to “that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” What seemed to bother him more, however, was the requirement of an extra-majority—two-thirds of the states—for passing laws, a requirement which, due to the “non-attendance of a few States,” he remarks, has “frequently” put the Congress “in the situation of a Polish diet, where a single veto has been sufficient to put a stop to all their movements.” And his comments that follow in this context are most revealing in...
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