Criticism: Overviews And General Studies

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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.]

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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 light of the modern critiques: “The necessity of unanimity in public bodies, or of something approaching towards it,” he writes, “has been founded upon a supposition that it would contribute to security.” “But,” he continues,

its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasures, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action. The public business must in some way or other go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority in order that something may be done must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.

To this he is quick to add that sometimes even such compromises are impossible when there is no room for “accommodation” or when, as is “often” the case, the majority is simply incapable of “obtaining the concurrence of the necessary number of votes” for positive action. In any event, he concludes, such a system is inherently weak, sometimes bordering “upon anarchy” (22:146-48).

Beyond any question, there is a wide discrepancy between what Publius writes in The Federalist and what his friends and critics, alike, maintain he is up to. Of course, as some of his critics would have it, these discrepancies can be explained away because Publius was out to put one over on the ordinary reader. But in trying to interpret The Federalist, such an explanation puts us in the difficult, if not impossible, position of judging which of its arguments or positions are to be taken at face value and which are not—a difficulty which Publius's critics have not faced, much less resolved. Or, by way of explanation, we might say—contrary to what most of his modern-day students hold—that he was simply unaware of what the principles of the proposed Constitution, taken as a whole, amounted to: that he did not see or comprehend the extent to which the underlying constitutional principles—e.g., separation of powers, federalism—were incompatible with republicanism or how they would operate to thwart effective and positive majority rule. But clearly, these and similar explanations are uncharitable because they bring either his intellectual honesty or capacities into serious question.

The fact is, to go no further, that these conservative-liberal interpretations simply do not present us with a coherent account of The Federalist's teachings. Not only are crucial aspects of these interpretations frequently at odds with one another, they cannot explain why—assuming that Publius was bent upon achieving the goals and conditions which they attribute to him—he proceeds as he does. For instance, to turn to an obvious difficulty, it is clear that Publius and the Founders wanted a more energetic government. So much is admitted on all sides to be among their chief goals. Why, then, do we find Publius defending those principles and institutions which, according to his liberal critics, serve to render the government virtually inert? How is it, for example, that he can maintain that separation of powers is indispensably necessary while, at the same time, stressing the need for a far more energetic government? Or, to illustrate how his teachings seem to be at variance with the goals ascribed to him, if he believed that the Supreme Court was designed to play a vital role in protecting the social and economic elites by thwarting proletarian majorities, why is it that he does not describe the Court as the institution particularly well suited to invalidate legislation contrary to the spirit of the Constitution? Why, instead, does he picture the Court's role in relatively narrow terms? And, perhaps most telling, why does he oppose a bill of rights, which could and has served to expand the authority of the courts? Why does he do so, moreover, using a line of argument that not only questions the efficacy of a bill of rights, but its compatibility with popular government as well?

There are other major aspects of Publius's teachings and commentary that run counter to what has become accepted wisdom in some quarters. Conservatives, for instance, who have come to regard federalism as one of the main pillars of our freedoms will find little support for this notion in The Federalist. Nor will those liberals who believe that Publius wanted a system that would allow vested economic interests a free reign. But these and related concerns are best discussed later in another and broader context.

REASONS FOR MISUNDERSTANDINGS

What accounts for these interpretations, which, despite Publius's repeated professions to the contrary, render him hostile to republicanism? While there can be no definitive answer to this question, we can mark out certain of the more plausible ones, which also have a bearing on our concern with and approach to The Federalist.

Certainly a major reason might be termed “perspectives of the times.” In this regard it is generally agreed that the origins of the modern critiques of our constitutional system and the Founders, the general outlines of which we have set forth above, are to be found in the writings of the populists and progressives during the first two decades of this century. Significantly, they came after an extended period during which the national government had assumed a laissez-faire posture toward the economy and business, particularly in those areas where progressive and populists had championed the cause of change and reform. In retrospect it is understandable how those whose interests were ill served by this laissez-faire policy could come to believe that its roots were to be found in the constitutional design, the more so as the Supreme Court—the presumed bastion of unfettered property rights—gave birth to and perpetuated such a view for a considerable period. The unresponsiveness of the system, in other words, could readily be attributed to the inherently “undemocratic” character of the Constitution. From this position, it was but a small step to the proposition—still very much with us—that the Framers abandoned the democratic principles and ideals of the Declaration of Independence.

Moreover, for one so disposed, The Federalist can be read—albeit in a highly selective manner—to support these views. Publius, simply put, was far from being an uncritical admirer of republicanism. The history of republics, he informs us at one point, can scarcely be encouraging for the patrons of free government and civil liberty because of their demonstrated incapacity to control the violence of faction. He evidences alarm at the situation within the states where the very conditions that had doomed earlier republics were beginning to manifest themselves. In this connection, he writes of the “prevailing and increasing distrust of public engagements and alarm for the private rights which are echoed from one end of the continent to the other” (10:77-78). He even goes so far as to content that “pure democracies” can never be anything other than “spectacles of turbulence and contention” (10:81).

In addition, underlying Publius's concern about popular government was, as we might expect, an equally hardheaded appraisal of human nature, one cast largely in terms of human motivation.13 Men, he tells us, have a pronounced propensity to pursue their immediate self-interest even at the expense of the long-term common good. So strong is this propensity, according to Publius, that majorities formed around the immediate self-interest of their members will often pursue their ends, no matter how unjust or wicked they might be, even in the face of religious or moral appeals. Nor does he believe that the rulers, without adequate precautions, can be trusted; they, too, will use their authority and power to advance their interests and those of their family and friends at the expense of the ruled. Consequently, when impulse and opportunity coincided, Publius did not look primarily to reason, virtue, morality, or religion to stay the hands of either the majorities or of the rulers from acting oppressively in the pursuit of their immediate self-interest.

In holding to and expressing such beliefs, Publius can be viewed as providing the theoretical linkage between the Constitution and the behavior of the institutions it creates—the linkage which, as both the populists and more recent critics of the system are wont to contend, reveals the real motives of the Framers. But, as we have already intimated, drawing this connection relies upon selectively extracting quotes from The Federalist without regard to Publius's broader perspective or the assumptions upon which he operates. For instance, to take perhaps the most basic issue, we cannot justifiably consider his observations concerning republican government or his related assumptions concerning the nature of man as presumptive evidence of hostility on his part toward popular government. On the contrary, his critical remarks follow directly from what he regards as givens. Revealing in this respect are his comments on the proposition, advanced by some opponents of the proposed Constitution, that if the union were to break up into smaller parts there would be little cause for concern because “commercial republics” would not be “disposed to waste themselves in ruinous contentions with each other” (6:56). While he maintains that experience does not bear out this proposition, his more fundamental point is that this is but another of “those idle theories which have amused us with promises of an exemption from the imperfection, the weaknesses, and the evils incident to society in every shape.” He asks rhetorically, “Is it not time to awake from the deceitful dream of a golden age and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?” (6:59). In short, his remarks about republicanism are conditioned by an assumption that republics will not be free from vices and wickedness, the lot of imperfect man. For him, the imperfections of man are a reality which the proponents of republican government, himself included, must recognize and make due allowance for. Viewed in this light, Publius—by recognizing the weaknesses inherent in republican government and by pointing to factors that promise to mitigate these weaknesses—emerges as a true friend of popular government.

The critics' failure to view the problems associated with the realization of republican government from Publius's perspective is only a manifestation of a more profound difficulty: Publius and his critics are, so to speak, proceeding on two different tracks or levels that are of such a qualitatively different nature that the concerns and principles of one are frequently meaningless or irrelevant for the other. Concretely, Publius is obliged to confront reality by taking into account givens of the nature of man and republics alluded to above. In contrast, however, his critics have been more preoccupied with abstract or theoretical concerns, the most significant of which have, either implicitly or explicitly, turned out to be the standards or requirements of a model democracy.14

Those models that have formed the basis for the critiques of The Federalist, as well as of the Founders and their handiwork, are similar in certain salient respects. They seek, above all, to maximize political equality, the underlying value for the principle of majority rule. Moreover, they embody the requirement of the “pure” or classical conception of democracy wherein these majorities are to be vested with the capacity and means to translate their preferences immediately into laws.15 Consequently, the majority-rule principle in this sense becomes a critical standard against which Publius's teachings are measured.

These aspects of the critics' models are alone sufficient to indicate the wide gulf that separates them from Publius's approach and the realm in which he necessarily had to operate. To begin with, Publius's conception of republicanism, particularly as it relates to the proper role of the people and the functions of the representatives, differs in salient respects from that of his critics. Perhaps the most important of these is that Publius did not evaluate republican institutions and processes by the degree to which they would enable the people to translate their particular policy preferences directly into law through electoral processes. On the contrary, we have every reason to believe that he would have found serious fault with this brand of republicanism.

Beyond this, of course, Publius had to deal with a variety of concerns about which the modern models are largely silent or whose principles yield little by way of instruction. Chief among these would be how to structure the machinery of government—e.g., what does republicanism require in establishing the judicial branch and fixing its role? What provisions, consonant with republicanism, can be taken to insure that judges will possess the requisite knowledge and experience for their responsibilities? Nor do the models address other obvious problems of another, but equally important, order. For instance, it seems evident that stability and order are prerequisites for decent and effective popular government. But, again, the models can tell us nothing about what institutions or procedures are necessary for this stability and order, much less how they are to be rendered compatible with republican principles. Nor, at another level, are such models suited to realistically appraising the prospect that representatives might betray the people's trust and thereby endanger the very existence of the regime. In sum, to put this somewhat differently, models are models: they are limited in their relevance and applicability to the real world by what their builders put into them.

We need not dwell on the inherent limitations of the models by which Publius's republicanism has been measured and found wanting to see their inappropriateness for this purpose. In sum, they are both limited and rigid, incapable of recognizing, much less of placing in proper context, the values and concerns uppermost in Publius's mind. However, it is the effort to squeeze Publius's thoughts into these narrow parameters that has served to distort his commitment to popular government. For without recognizing the purposes or concerns which stand behind the principles Publius advances, it is all too easy to conclude that he wanted to pose unnecessary obstacles to popular control of government. Such, as we shall see later, is clearly the case with respect to the prevailing view concerning the purpose of the separation of powers—a view which, as we have remarked, is crucial to both the liberal and conservative conceptions of our constitutional order.

These observations, we believe, bring us to what is the most basic reason of all for the general misunderstanding that surrounds Publius's teachings: a propensity on the part of his critics to take a truncated or partial view of The Federalist, to concentrate on one or a few aspects of the work without an overall view of Publius's concerns or approach. Thus, it is hardly surprising to find that certain elements of his thought have been isolated and emphasized without regard to their contextual relationship with other significant principles of his teachings. Nor, lacking an overall conception of his task, is it difficult to see why The Federalist has been unfairly judged by inappropriate standards or principles. …

Notes

  1. For a thorough treatment of when and where the essays first appeared see Jacob E. Cooke's Introduction to The Federalist (Middletown, Conn.: Wesleyan University Press, 1961). Bibliographic appendices to The Federalist Papers (2d Ed: Baltimore: John Hopkins University Press, 1981), selected and edited by Roy P. Fairchild, provide a listing of the various editions of The Federalist that have appeared.

  2. To this point Clinton Rossiter writes: “It would not be stretching the truth more than a few inches to say that The Federalist stands third only to the Declaration of Independence and the Constitution itself among the sacred writings of American political history.” Introduction to The Federalist Papers (New York: New American Library, 1961), p. vii. Jacob E. Cooke is even more emphatic: “The United States has produced three historic documents of major importance: The Declaration of Independence, the Constitution, and The Federalist,The Federalist Papers, p. ix.

  3. Jefferson went so far as to describe it as “the best commentary on the principles of government ever written.” Letter to Madison, 18 Nov. 1788, in Julian F. Boyd, ed., The Papers of Thomas Jefferson (Princeton: Princeton University Press, 1958), XIV, 188. Charles A. Beard, interestingly enough in light of his economic interpretations of the Founders' motives, was lavish in his praise of The Federalist, ranking it “first in the world's literature of political science.” The Enduring Federalist (New York: Doubleday, 1948), p. 10. For the laudatory comments of others such as John Marshall, Chancellor Kent, John Quincy Adams, and Woodrow Wilson see Gottfried Dietze, The Federalist (Baltimore: John Hopkins University Press, 1960), chap. 1. See also Fairfield's Introduction to The Federalist Papers.

  4. James G. Wilson, “The Most Sacred Text: The Supreme Court's Use of The Federalist Papers,” Brigham Young University Law Review 1 (1985).

  5. Robert Dahl in his Preface to Democratic Theory (Chicago: University of Chicago Press, 1956) writes that “the Madisonian style of thinking has led to a rather tortuous political theory” (p. 30), that “as political science rather than as ideology the Madisonian system is clearly inadequate” (p. 31). What Madison had sought, according to Dahl, was to provide “a satisfying, persuasive, and protective ideology for the minorities of wealth, status, and power who distrusted and feared their bitter enemies—the artisans and farmers of inferior wealth, status, and power, who they [the Framers] thought constituted the ‘popular majority’” (p. 30). Because this ideology appeals to Americans, most of whom are members of one minority or another that could potentially be threatened by majorities, Dahl believes it is “the most prevalent and deeply rooted of all the styles of thought that might properly be labeled ‘American’” (pp. 30-31).

  6. The first of the modern critiques is generally acknowledged to be James Allen Smith's The Spirit of American Government (New York: Macmillan, 1907). Cushing Strout in his Introduction to the Harvard University Press edition (1975) writes: “In the first decade of the twentieth century a generation of reformers began to question [the heritage of the Founders]. The Founding Fathers had become the idols of the established powers in business and politics, and the reformers began to seek elsewhere for the democratic wisdom to deal with the corruption, monopoly, and exploitation which characterized urban and industrial life. Perhaps the saving wisdom had somehow been lost—lost ever since it had first been glimpsed by the American rebels of 1776. It might even be that the Founding Fathers and their Constitution were themselves at the root of the evils. This twist of thought in a country whose people and heroes had long venerated the framers of the Constitution was a somersault of perspective that enthralled a powerful group of Progressive reformers and still survives in the writings of some influential historians.” And Strout continues: “The original prophet of this new political vision was James Allen Smith,” whose work “illustrated the reversal of perspective in 1907” (pp. xiiv-xiv).

    There are numerous works, significant in their own right, written from the same or very similar perspectives that expand on or emphasize one or more of Smith's charges against the Framers and the constitutional system. Among these would be Charles A. Beard, An Economic Interpretation of the Constitution (New York: Macmillan, 1913); Vernon L. Parrington, Main Currents in American Thought, 3 vols. (New York: Harcourt Brace, 1927-30); Richard Hofstadter, The American Political Tradition (New York: Vintage Books, 1948); E. E. Schattschneider, Party Government (New York: Farrar and Rhinehart, 1942) and The Semisovereign People (New York: Holt, Rinehart and Winston, 1960); James McGregor Burns, The Deadlock of Democracy (Englewood Cliffs, N.J.: Prentice-Hall, 1963) and Uncommon Sense (New York: Harper and Row, 1972); and Robert Dahl's Preface, which Gary Wills in his Explaining America (Garden City, N.Y.: Doubleday, 1981) regards as the “most important and devastating” critique of the principles underlying the Constitution produced in modern times.

    The basic elements of the modern critique are manifest in historical works dealing with the founding era. For instance, those who hold that the Constitution represents a “reaction” to the democratic ideals of the Declaration echo, in various and subtle ways, Smith's original charge along these lines. Among others, see Gordon S. Wood, The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1969); Merrill Jensen, The Articles of Confederation (Madison: University of Wisconsin Press, 1940) and The New Nation (New York: Alfred A. Knopf, 1950); and J. Franklin Jameson, The American Revolution Considered as a Social Movement (Princeton: Princeton University Press, 1923). Douglass Adair indicates the widespread acceptance of this view regarding the relationship between the Declaration and the Constitution in his “The Tenth Federalist Revisited,” in Trevor Colbourn, ed., Fame and the Founding Fathers (New York: W. W. Norton, 1974).

  7. As Dahl puts this in his analysis of The Federalist: “The concept of ‘minority veto’ or ‘concurrent majorities’ is not, strictly speaking, of Madison's creation. This view associated with the name of John C. Calhoun nevertheless seems to have become a fundamental element in the American ideology, and it is frequently defended in essentially Madisonian language.” Preface, p. 29.

  8. As James McGregor Burns writes: “It [the political system] discriminates cruelly against the unorganized or ill-represented masses of people. It is always too late; hence social malaise breeds and proliferates for years before action is taken. And the system makes for crisis, which serves only as a temporary catharsis; conditions fester until there is a dramatic breakdown, national attention rivets on the crisis … a solution becomes, for a time, the first priority for all concerned; actions are piecemeal, with little attention to long term need or effects; the crisis seems to be resolved; the brokers turn back to business as usual—and the underlying ills persist.” Uncommon Sense, p. 118. In this vein, a customary defense of a form of judicial activism which embraces legislative action by the courts stresses the presumed failure of political institutions to take “needed” action.

  9. Herbert Croly, in many ways the intellectual father of the New Deal, was among the first of the early critics to see that federalism was an obstacle to centralized, national planning necessary for the realization of “progressive” goals. Croly's views stand apart from the earlier critiques of the system because he praises Hamilton for at least seeing the need for a stronger union. And, on these grounds, he finds fault with Jefferson. See his The Promise of American Life (New York: Macmillan, 1911).

  10. For a discussion and analysis of this point see Martin Diamond, “Conservatives, Liberals, and the Constitution,” in Left, Right, and Center, Robert A. Goldwin, ed. (Chicago: Rand McNally, 1966). Diamond notes that “the more liberal or conservative the writer, the likelier and fuller the agreement” between them regarding “the original intention of the Constitution and the nature of the original institutions it established.” As he remarks, “one tends to deplore and the other to applaud” the principles of the Constitution such as the separation of powers (pp. 60-61).

  11. Dietze's The Federalist is the locus classicus for this position. “From among those values [those embodied in the Constitution], the freedom of the individual is considered to be of paramount importance. As a matter of fact, Hamilton's exposition of the doctrine of judicial review in the seventy-eighth essay amounts largely to an advocacy of the preservation of individual freedom from the progressivism of popular majorities and their infringements upon life, liberty, and property. The protection of these rights is in good hands because the judges, due to the nature of their profession, are likely to be conservatives” (p. 278).

  12. All citations to The Federalist in the text are to The Federalist Papers, Clinton Rossiter, ed. (New York: New American Library, 1961). When the number of the essay is apparent from the text, the numbers in parentheses will be only to the page numbers. Otherwise the citations will be to the essay number followed by the page numbers.

  13. For an examination of Publius's conception of human nature from this perspective see James P. Scanlan, “The Federalist and Human Nature,” Review of Politics 21 (Oct., 1959).

  14. Perhaps the best known and most sophisticated of these models in Dahl's “polyarchy,” which is recognizably a refinement of the majoritarian model set forth by Austin Ranney and Willmoore Kendall in their Democracy and the American Party System (New York: Harcourt Brace, 1956). The conditions of Dahl's polyarchy are set forth and discussed in chap. 3 of his Preface.

  15. For example, many works in the political science literature that advocate responsible, disciplined, and programmatic political parties as a means of overcoming the “undemocratic” character of the Constitution also accept the major premises of the modern critique. Moreover, the advocates of party reform share the vision of the classical model of democracy and seek to provide the means through which majorities can enact their preferences into law. Yet little thought has been given to the consequences that might flow from such a “reform” in terms of other cherished values embodied in our system. On this matter see Evron M. Kirkpatrick, “Toward a More Responsible Two-Party System: Political Science, Policy Science, or Pseudo-science?” American Political Science Review 65 (Dec., 1971).

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Criticism: Influences And Origins