SOURCE: Dry, Murray. “Anti-Federalism in The Federalist: A Founding Dialogue on the Constitution, Republican Government, and Federalism.” In Saving the Revolution: The Federalist Papers and the American Founding, edited by Charles R. Kesler, pp. 40-60. New York: The Free Press, 1987.

[In the following essay, Dry analyzes The Federalist Papers as a response to particular Anti-Federalist arguments. Quoting from the Anti-Federalist tracts “Letters of Brutus” and “Letters of the Federal Farmer,” Dry highlights passages in The Federalist Papers that respond to them directly, focusing on issues of the definition of federalism, and limitations on Congressional powers of taxation and war.]

The Federalist is usually studied standing alone, as the definitive account of the Constitution. After all, Alexander Hamilton and James Madison, the two major authors, were both members of the Federal Convention, and Madison is generally regarded as the “Father of the Constitution.” Moreover, The Federalist's full explanation of the Constitution's provisions, as well as its argument for a strong government, remain impressive and instructive today.

Both the form and the substance of the work, however, suggest that it can best be studied in conjunction with the Anti-Federalist opposition. Not only was most of The Federalist first published in the form of newspaper essays supporting the Constitution's ratification, but much of the text is directed against the opponents' arguments. Indeed, Publius promises “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.”¹ One might not discern this, however, from The Federalist's scant seven references to Anti-Federalists by name—all occurring in the last eighteen essays on the executive and judicial branches. In Number 67, Publius devotes the entire essay to critizing Cato's mistaken notion that the president's power to make temporary appointments, while the Senate is in recess, extends to senators as well. In Number 68, he refers to Federal Farmer's approval of the election of the president. In Number 69, he disagrees with Tamony on the source of the English king's prerogative. In Number 73, he mentions Abraham Yates as an opponent who first opposed the executive's veto but later supported it. In Number 78, while supporting judicial independence as a way of guarding the Constitution and the rights of individuals, he professes his attachment to the people's right to alter or abolish their government. Here he chides the Pennsylvania Minority and Luther Martin for allegedly opposing that right. The last two references, in Number 83, criticize the Constitution as then drafted for failing to secure trial by jury. Only here do Publius's specific references to the Anti-Federalists—in this case to the reports of the Pennsylvania Minority and the Massachusetts Convention—involve a serious objection.²

I am not sure why these items were selected for attribution to the Anti-Federalists, since virtually every important objection that was made to the Constitution is taken up in The Federalist. For example, the argument of the famous tenth Federalist is directed against the common view, pressed by the Anti-Federalists, that republics can exist only within a small territory having a small population. The argument for the complex version of separation of powers embodied in the Constitution, in Numbers 47-51, replies to distinct Anti-Federalist challenges to that arrangement. And the case for judicial review, as it is made in Number 78, takes issue with the Anti-Federalist Brutus's very fine argument against it. Finally, the most fundamental Anti-Federalist critique concerns federalism, and, as we shall see, Publius engages in a virtual dialogue with Brutus and Federal Farmer on both the definition of federalism (Numbers 9 and 39) and on the extent of the legislative powers, especially the tax and war powers (Numbers 23-36). In general, one imagines that Publius did not consider it rhetorically effective to give recognition to his opponents, especially where they had a strong case; although on the question of the jury trial, Publius may have concluded that his opponents had been making headway and that a response showing the limitations of their own proposals could be useful.

This essay examines the parts of the ratification debate that preoccupied Publius—republican government and federalism. In the first place, this is necessary because the Federalists were often responding to the Anti-Federalists, and so the opponents' arguments must be made clear in order to understand the argument for Constitution. A second point concerns the Anti-Federalists' own contribution. Herbert Storing, whose authoritative edition of the Anti-Federalist writings facilitates our full understanding of this debate, has argued that the Anti-Federalists “played an indispensable if subordinate part in the founding process.”³ Storing saw the Anti-Federalists as expressing sound moral reservations about the possibility that republican self-government could prosper by relying so fundamentally on “enlightened self-interest” and ambition checking ambition. The argument of this essay, while in agreement with Storing, will concern itself with the constitutional alternatives offered by the Anti-Federalists.

I have chosen the two best Anti-Federalist writings as the counterpart to The Federalist: the “Letters of Brutus” and the “Letters of the Federal Farmer.” The eighteenth-century practice of writing under pseudonyms was intended to highlight the importance of reasoned argument. Unfortunately for the Anti-Federalists' claims to fame, their identification remains uncertain even today. For example, the essays of Brutus were attributed by Paul Leicester Ford to Robert Yates of New York, but on little evidence. Yet Brutus is surely more open to the proposed Constitution than was Yates, on the basis of the latter's opposition to the Virginia Plan in the Federal Convention and his subsequent brief “Reasons of Dissent,” co-authored by John Lansing, his Convention colleague. The Federal Farmer has been identified as Richard Henry Lee, but the only evidence is one contemporary reference. Storing, William Winslow Crosskey, and Gordon Wood all came to doubt this identification, partly because Lee's public letter of opposition does not emphasize the same argument that Federal Farmer does, and partly because if Lee had been the author of these well-known and highly regarded Letters, it is surprising that he never acknowledged authorship. Nor did Lee's grandson and early biographer attribute the “Letters of the Federal Farmer” to Lee.⁴

These Anti-Federalist writings were published in New York newspapers during the publication of The Federalist, and in many cases it is clear that Publius is replying directly to Brutus or to Federal Farmer.⁵ To place this “debate” on republican government and federalism in its proper context, I shall begin with three related points of departure: how each side understood the issue facing the country; how each side viewed the other; and what each thought about foundings in general and the Convention's compromises in particular.

I. STARTING POINTS FOR THE TWO PARTIES

Publius begins Federalist 1 by linking the fate of the new Constitution with the existence of the Union and “the fate of an empire, in many respects the most interesting in the world.” He concludes by saying that “we already hear it whispered in the private circles of those who oppose the new constitution,” that the country is too large for “any general system,” and that resort must be had to separate confederacies (p. 36). This charge, which Publius repeats at the beginning of Federalist 2 (p. 37), was not true of Brutus, Federal Farmer, or even Patrick Henry. Moreover, aside from a statement of Luther Martin's in the Federal Convention that he would favor dissolution of the Union if equality of the states was abandoned, there seems to be no evidence that the Anti-Federalists favored separate confederacies.

On the contrary, both Federal Farmer and Brutus begin by acknowledging the country's critical period, demonstrating that the assessment was not the creation of later Federalist historians.⁶ Federal Farmer even admits “that our federal system is defective, and that some of the state governments are not well administered.” Both emphasize the importance of full deliberation, however, because “when the people once part with power, they can seldom or never resume it again but by force,” and hasty and blind changes will wear down the better part of the community and cause it to accept despotism.⁷ For these writers, the question is not union versus separation, but confederation versus consolidation—or more precisely, whether the proposed Constitution is compatible with confederation, and hence with republican government. They feared that it was not, at least in its present form. “The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of thirteen republics, under a federal head, it is clearly designed to be one consolidated government.”⁸

Publius obviously prefers to begin The Federalist with a discussion of the utility of union rather than with the question of federalism versus consolidation. It would have been difficult for him to do that if he had conceded that the opponents accepted the importance of union.

Both sides agree that the times are critical, that something must be done, and that disinterested, public-spirited deliberation is in order. They disagree over which side benefits most from interested parties. Publius refers to attachments to state governments (No. 1, p. 34), while Federal Farmer refers to “those who expect employment under the new constitution” as well as “those weak and ardent men who always expect to be gainers by revolutions.”⁹ Publius pretends to be unaware of such motives when he argues that the crisis excuses the “predetermined patron” but the predetermined opponent “must be culpable” (No. 37, p. 225).

Moving from interested parties to his true addresses, Publius, again in the first essay, gives an excellent description of the two sides' principles (especially from his perspective) and the manner in which they are misrepresented.

An enlightened zeal for the energy and efficiency of government will be stigmatized, as the off-spring 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 the heart, will be represented as mere pretense and artifice; the bait for popularity at the expense of public good.

[Federalist 1, p. 35]

The first position, with which Publius soon expresses agreement, is sound, since “the vigour of government is essential to the security of liberity.” The Anti-Federalist position, however, is misguided, if well intentioned, and dangerous, since “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” (No. 1, p. 35).

I have not found a comparable Anti-Federalist description of the principles of both parties. In light of the following statement of Federal Farmer, I think he might adopt Publius's formulation—as it relates to energy and efficiency versus republican jealousy—but draw a different conclusion.

In viewing the various governments instituted by mankind, we see their whole force reducible to two principles—the important springs which alone move the machines, and give them their intended influence and control, are force and persuasion: by the former men are compelled, by the latter they are drawn. … Our true object is to give full efficacy to one principle, to arm persuasion on every side, and to render force as little necessary as possible.¹⁰

Our final preliminary topic concerns foundings and the work of the Federal Convention. Brutus urges caution, since “when the people once part with power, they can seldom or never resume it again but by force.” He also identifies a full declaration of rights with “forming a government on its true principles.”¹¹ Publius, on the other hand, in Federalist 37 and 38, argues against rejecting the Constitution in the name of a perfect but impracticable solution. He introduces theoretical speculations concerning nature, man, and speech to explain why political boundaries cannot be drawn precisely. Then, reflecting on all the divisions in the Federal Convention, Publius notes that the “man of candor” must experience “astonishment” that they were surmounted, while “the man of pious reflection … perceive[s] in [the Convention's unanimity], a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution” (No. 37, pp. 230-231). Since Madison saw many of his important proposals rejected in the Convention—e.g., the national negative, the council of revision, proportional representation in the Senate—we may conclude that Publius's candor does not prevent him from appealing to the faithful on their own terms. Publius goes on, in Federalist 38, to compare the Federal Convention's work favorably to ancient foundings, to attribute whatever errors may be found to lack of experience, and to charge the opponents of the Constitution with an inability to agree on any other plan (No. 37, pp. 234-237).

The framers dealt with the major divisions in the country so successfully that those divisions were not prominent in the ratification debate. In addition to the “Great Compromise” between the large and the small states, the Convention had to deal with the sectional division in the country. This was taken up in the apportionment rule for the lower house, which also affected the election of the executive; and in a compromise over navigation acts and slave importation. By the first, the infamous “three-fifths” clause aimed at giving the South rough parity in representation; by the second, the South allowed the North a right to pass tariffs, without requiring a special majority for this act of commercial regulation, in exchange for a twenty-year guarantee of slave importation.¹² While Brutus briefly objected to counting slaves in the apportionment,¹³ the sectional compromises generated little opposition.

Furthermore, since they conceded the need for a stronger government, Brutus and Federal Farmer did not emphasize the legal objections to ratification. Those who did—Luther Martin was the most prominent—could point not only to the limited authorization from Congress to make proposals “for the sole and express purpose of revising the Articles of Confederation,” but also to the requirement, in the thirteenth article of that constitution, that amendments pass Congress and every state legislature.¹⁴ Federal Farmer expresses regret over “the non-attendance of eight or nine men who were appointed,” but he also acknowledges that the plan is one “of accommodation, and that it is in this way only, and by giving up a part of our opinions, that we can ever expect to obtain a government founded in freedom and compact.”¹⁵

Both sides, then, promise a candid discussion of the Constitution, and the most thoughtful Anti-Federalists concede the need for a strengthening of the federal Constitution. Brutus and Federal Farmer even agree that the proposed Constitution provides a better starting point than the Articles of Confederation. But the Anti-Federalist focus on federalism and the threat of a consolidation of all power in the national government—in contrast to Publius's emphasis on the needs of union—highlights the major division. Before we turn to the debate on federalism, however, it will be useful to examine what lies behind that debate: two different views of republican government.

II. REPUBLICAN GOVERNMENT

Brutus begins his discussion of republican government shortly after asking whether the United States “should be reduced to one great republic,” which is the meaning of “consolidation,” or “whether they should continue thirteen confederated republics.”¹⁶ He quotes the following passage from Montesquieu's Spirit of the Laws:

It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic, there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses are of less extent, and of course are less protected.¹⁷

In Montesquieu's republic—as opposed to monarchy, which is another form of free government—the public good takes precedence over individual liberty. Both equality and frugality support it, and the small size facilitates citizen oversight. In addition, a certain homogeneity is important. “In a republic,” Brutus writes, “the manners, sentiments, and interests of the people should be similar.”¹⁸ In that connection, Federal Farmer questioned the Constitution's liberal qualifications for election to office, which included only age, residency, and citizenship for a certain number of years. “It can be no objection to the elected, that they are Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not. Hence, many men may be elected who cannot be electors.”¹⁹

The Anti-Federalists depart from Montesquieu's account of republican government in two ways, however. First, Montesquieu makes no reference to representation in his discussion of republics, and, with one notable exception—Maryland Farmer, who advocated direct citizen voting analogous to the Swiss cantons—the Anti-Federalist “small republic” argument is joined to an argument for substantial representation. Second, the Anti-Federalists, in agreement with the Federalists, start with liberty, not virtue (as Montesquieu does) as the principle of republican government.²⁰ However, the Anti-Federalists embrace a view of liberty that gives greater emphasis to mild government and to citizen participation than Publius does.

Federal Farmer, for example, describes “the essential parts of a free and good government” as “a full and equal representation of the people in the legislature, and the jury trial in the vicinage in the administration of justice.” And in his next letter, he writes

The great object of a free people must be so to form their government and laws, and so to administer them, as to create a confidence in, and respect for the laws; and thereby induce the sensible and virtuous part of the community to declare in favor of the laws, and to support them without an expensive military force.²¹

Substantial representation and jury trial, in civil as well as criminal cases, and on issues of law as well as fact, “are the means by which the people are let into the knowledge of public affairs—are enabled to stand as the guardians of each others' rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them.”²² Federal Farmer could have gone further in his advocacy of jury trial, since, while a substantial representation gives more citizens experience in government than a smaller representation does, every citizen can expect to serve on a jury from time to time. Hence every citizen learns about government by sharing in public deliberation and decision making.

Now let us turn to Publius's account of republican government. Noting that “no other form would be reconcilable with the genius of the people of America,” he offers this definition in Federalist 39:

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 portion, 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; 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.

[No. 39, pp. 240-241]

In his recent book on The Federalist, David Epstein notes that this definition would encompass Hamilton's plan in the Federal Convention (with its governor and senate for good behavior). He also points out that Publius presents a narrower statement, in Federalist 37, according to which “‘the genius of republican liberty,’ … seemed to require short terms and a large number of officers.”²³ While Epstein is apparently satisfied with Publius's main definition, the Anti-Federalists are not. I think the reason for this is that Epstein agrees with Publius on the importance of ambition for political life.²⁴ The constitutional arrangement that is expounded and defended so ably in The Federalist assumes the legitimacy of interest and ambition, and constructs a system of elective offices that channels interests and ambitions into public service. A brief review of some of the major Federalist arguments illustrates this point.

The argument of Federalist 10 is based on two principles that reveal a different approach to republican government from the Anti-Federalists'. First, the protection of diverse faculties among men, specifically, “different and unequal faculties of acquiring property,” “is the first object of government” (No. 10, p. 78). Second, the republican principle, which is majority rule, is so established in America that constitution makers must focus on restraining its abuses in order to secure the other objects of good government, “the rights of other citizens and the permanent and aggregate interests of the community” (No. 10, p. 78). These principles form the basis for an argument for the “large republic,” which shifts the locus of power from the states to the national government, and, within that government, from the legislature as a whole to the senate and the executive branches, and, one should add, to an independent judiciary. Moreover, the argument stands on its own, without any reference to the exigencies of union; that is, unlike the discussions (considered below) of the need for adequate powers for the national defense, this argument claims that nothing will be lost and everything will be gained, in terms of republican government, by the larger sphere.

By drawing on diversity as it does, Publius's argument assumes and even fosters inequality and a separation of the people from the government. For example, when Publius defines republic in terms of representation, in contrast to democracy (we would say, direct democracy), he notes that the resulting refinement of a republic—that the people do not govern directly but through others—can have good or ill effects. But will the effects be better in the small or the large republic? He answers that it will be better in the latter case, since there will be greater competition for the proportionally fewer places, assuming that the people will choose the fit characters and not be deceived by capable demogogues. To this answer there are two noteworthy Anti-Federalist responses. First, assuming Publius is right about the people's capacity to judge, in the few cases where a demagogue succeeds on the national level, he will do greater damage than at the state level. Second, even if the refinement works as predicted, it may well establish a permanent division between the governors and the governed. This will be so if the effect of a large population and extended territory is that only a certain class is capable of winning. To have the right to vote for one's governors is not the same as governing; nor does it guarantee confidence in government, and hence a mild government, if the people are not familiar with the individuals elected and if the elected are not substantially like the people.

Publius's first reply to the Anti-Federalist argument is to deny that what they wanted is possible, meaning consistent with popular elections. “The idea of an actual representation of all classes of the people by persons of each class is altogether visionary. Unless it were expressly provided in the Constitution that each different occupation should send one or more members the thing would never take place in practice” (No. 35, p. 214). Publius proceeds to sketch out a tripartite “trickle down” theory of representation: mechanics and manufacturers will be represented by merchants, who uphold the commercial interest; small landholders will be represented by large landholders, with whom they share a common interest vis-à-vis objects of taxation; and the lawyers and other men of the learned professions will act as arbitrators (No. 35, p. 216).

There is an element of deference in this prescription that is not likely to overcome the Anti-Federalist suspicion of a conflict between the few in government, or the few who influence it, and the many, who are outside it and without influence. This is especially true when one considers that large landholders' interests will often diverge from small landholders' interests, and that the former may be better clients for the lawyers than the latter.

Publius returns to this subject in Federalist 57, where he responds to the charge that those elected “will be out of sympathy with the mass of the people” and likely to “sacrifice … the many to the aggrandizement of the few.” Publius describes this as “the most extraordinary” objection to the Constitution. While it “is leveled against a pretended oligarchy, the principle of it strikes at the very root of republican government” (No. 57, p. 350). Since Publius was aware of the more restricted definition of republic, and since he knew that his extended sphere argument departed from the traditional assumptions about republican government, his expression of shock must be taken with a grain of salt. Publius begins by reminding his readers that the Constitution establishes no special class or standards for electors or elected—other than age, citizenship, and residency, in the latter case, or what the states set for themselves, in the former. After discussing duty, gratitude, interest, and ambition as cords that bind the representative to his constituents, Publius remarks that the difference between federal and state districts is roughly the difference between five to six thousand and as many hundred constituents. “Will it be pretended that this difference is sufficient to justify an attachment to the State Governments and an abhorrence to the Federal Government?” He replies to his own question that with so many to choose from, “a fit representative would be most likely to be found.” This is part of the argument of Federalist 10. The Anti-Federalist reply is that skillfulness in elections may go together with dishonesty or a lack of sympathy for the common citizen. After appealing to the British experience with representation in the House of Commons (the Anti-Federalists could distinguish this case, by referring to the class-based character of British bicameralism), Publius cites examples of states—including New York—where the same number of voters are found in state and federal districts. The reason is that these states have multimember districts. When Publius gets around to mentioning this fact, which seems to go against him, he turns it around, arguing that surely one good representative can be found if the states can find four or five (No. 57, p. 355). Publius closes by arguing that in the most refined statewide elections, i.e., for senators and executives, there has not been the abuse of authority that opponents fear. But now he has moved away from the most popular branch of government, the one charged with representing the people.

Publius's arguments may not be convincing, but they do point to a certain indeterminateness in the Anti-Federalist position as presented so far. How many classes or orders in society are there, and how are they to be represented consistent with popular elections? Federal Farmer answers these questions in his VIIth letter, where he aggregates the different occupations into two major classes, the natural aristocracy and the natural democracy.²⁵ Farmer identifies the political and professional elite of the country (he offers the number “four or five thousand men”) as the natural aristocracy, and he distinguishes them from the more moderate merchants, traders, and landholders, whom he calls the natural democracy.

Men of the first class associate more extensively, have a high sense of honor, possess abilities, ambition, and general knowledge; men of the second class are not so much used to combining great objects; they possess less ambition, and a larger share of honesty; their dependence is principally on middling and small estates, industrious pursuits, and hard labour, while that of the former is principally on the emoluments of large estates, and of the chief offices of government.²⁶

Federal Farmer sees a qualitative difference in state versus federal representation, whereas Publius sees merely 500 versus 5,000 constituents. It follows that representation of the democratic or middling class will always be found to a greater extent in the state governments than in the federal government. Furthermore, Federal Farmer implies, and Melancton Smith, who makes the same argument in the New York Convention, makes clear, that the yeoman middling class, the natural democracy, is the most important class for republican government. For that reason, Federal Farmer, who argues that the federal representation needs to be increased, would continue to insist on limitations on federal powers over armies and taxes.

The difference between the Anti-Federalist “small republic” and the Federalist “large republic” is also relevant to each side's discussion of the Constitution's separation of powers. Here too, as with representation, the distinction is between “reflection” and “refinement,” or, to use Publius's terms, between the republican form on the one hand, and energy and stability, on the other (No. 37, p. 226). The version of separation of powers that Publius defends in Federalist 47-51 uses the following means to weaken the more popular branch at the expense of the others: the legislature is divided, the executive is given a participation in the legislative power, and the Senate is given a share, with the executive, of two important powers—treaty-making and appointments—in which arguably the entire legislature should participate. After all, these are not clearly executive functions, unless, of course, one identifies executive functions with the prerogatives of the British monarch. Publius argues that “ambition must be made to counteract ambition,” but such checks are always aimed either at weakening the more popular branch (No. 48, p. 309) or removing the people, in their collective capacity, from government altogether (No. 63, p. 387). Publius makes this last argument when he defends the Senate's six-year term. The Anti-Federalists criticized the term as too long, and many, including Federal Farmer, proposed instead a three- or four-year term, along with rotation and recall, which they argued would make the Senate more responsible.²⁷

Publius reverses the ordinary meaning of responsibility in order to befend the long term. Instead of answerability, it becomes capability: institutions must permit their members enough time to do their tasks. Since some tasks of government take time, an institution such as the proposed Senate is necessary (No. 63, pp. 383-384). And the case for the reeligibility of the unitary executive is made on the basis of the need to support inducements to good behavior with the prospect of reward (No. 71, pp. 437-438). Federal Farmer did not object to a unitary executive, although he favored a council of appointment, or the executive's qualified veto, but he and most Anti-Federalists objected to the president's reeligibility.²⁸ Finally, Publius argues for the good behavior tenure of federal judges to gain the benefits of “integrity and moderation [in] the judiciary,” as well as the learning necessary to have legal precedents understood and followed (No. 78, pp. 470-471). Brutus agreed with the tenure provision, but he objected to the provision in Article III that implied judicial review. If the judicial power did not extend “to all cases, in law and equity, arising under this Constitution,” then the legislature would have the final say on the meaning of the Constitution and the courts would be limited to interpreting the laws.²⁹

To the Anti-Federalists, then, the high-toned separation of powers only accentuated the basic problem, that under the proposed Constitution the powers of government were separated from the substantial representation of the people, which could only be found in the states. For that reason, the debate over federalism, to which we now turn, is more than merely terminological or legal.

III. FEDERALISM

Our examination of federalism involves two related topics. The first concerns definition: the question is whether the Constitution is consistent with federalism. The second concerns the scope of the legislative powers, particularly the powers to tax and raise armies.

A. FEDERALISM DEFINED AND REDEFINED

The federalism issue was complicated by an ambiguity in usage during the Confederation period, and then by the work of the Federal Convention. Herbert Storing explained the ambiguity by showing how “federal” referred at first to measures designed to strengthen the federal authority, as opposed to state authority, but at the same time presupposed state supremacy.³⁰ That is, the proponents of “federal measures” took the Articles of Confederation for granted as the constitutional framework; without disturbing state equality and state sovereignty, they proposed to give Congress a limited power to tax imports. The standard means of raising taxes and armies was for Congress to vote for them, with nine states necessary to pass such measures; and then the state governments were responsible for raising their proportional share. These measures were called requisitions, and it was the view of most of the framers that such measures had failed. In the Federal Convention, therefore, the “federal” principle referred to congressional reliance on requisitions, in contrast to the national principle of direct governmental authority over individuals.³¹ Since the Constitution eliminated requisitions and departed from state equality in the House of Representatives, it went beyond the federal principle, according to the Anti-Federalists. Hence, the Anti-Federalists claimed to be the true federalists.³²

Hamilton provides the first discussion of this subject in Federalist 9.³³ He attempts to use the Anti-Federalist authority on this topic, Montesquieu, in support of his contention that the distinction between confederacy and consolidation is “more subtle than accurate.” According to Montesquieu, men form an assemblage of societies or confederacy for the sake of security. “As this government is composed of small republics, it enjoys the internal happiness of each, and with respect to its external situation it is possessed, by means of the association, of all the advantages of large monarchies.”³⁴

Hamilton constructs a three-part definition of confederacy drawn from his opponents' statements. His intention is to demonstrate, with reference again to Montesquieu, that the definition does not hold up and therefore must be rejected.

The essential characteristic of [a confederacy] is said to be the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government.

[Federalist 9, p. 75]

Hamilton then cites Montesquieu's discussion of the Lycian confederacy: each city did not have an equal vote, and the common council appointed all the judges and magistrates of the several cities—yet Montesquieu called it a model confederacy. Hamilton ignores the matter of requisitions, or the federal authority's reliance on the governmental parts for arms and money. In Federalist 15, Hamilton argues that “the great and radical vice in the existing Confederation is the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist” (No. 15, p. 108). If we put the two passages together, we have Hamilton asserting that the great vice of the existing Articles of Confederation is also the essential feature of confederacies, and yet the distinction between confederacy and consolidation is “more subtle than accurate.”

Federal Farmer presents a more candid account of federalism and consolidation in his first letter. He distinguishes “three different forms of free government under which the United States may exist as one nation.” They include: (1) “Distinct republics connected under a federal head,” or a federal plan; (2) a complete consolidation, which involves the elimination of the state governments; or (3) a partial consolidation, which means “consolidat[ing] the states as to certain national objects, and leav[ing] them severally distinct independent republics, as to internal policy generally.”³⁵ Of the federal plan, Federal Farmer writes, “I do not think much can be said in its favor: The sovereignty of the nation, without coercive and efficient powers to collect the strength of it, cannot always be depended on to answer the purposes of government.” Of the two remaining, he “once had some general ideas that the second plan was practicable,” but after “long attention” concluded that the third plan, partial consolidation, “is the only one we can with safety and propriety proceed upon.”³⁶

When he began his “Additional Letters,” however, Farmer decided to claim the name federalism for his preferred middle position.

Some of the advocates [of the Constitution] are only pretended federalists; in fact they wish for an abolition of the state governments. Some of them I believe to be honest federalists, who wish to preserve substantially the state governments united under an efficient federal head; and many of them are blind tools without any object. Some of the opposers also are only pretended federalists, who want no federal government or one merely advisory. Some of them are the true federalists, their object, perhaps, more clearly seen, is the same with that of the honest federalists; and some of them, probably have no distinct object. We might as well call the advocates and opposers tories and whigs, or any thing else, as federalists and anti-federalists. To be for or against the constitution, as it stands, is not much evidence of a federal disposition; if any names are applicable to the parties, on account of their general politics, they are those of republicans and anti-republicans.³⁷

What Farmer previously had described as federalism and criticized, he now identifies with opponents of the Constitution who are only “pretended federalists,” because they want no federal government “or one merely advisory.” The position previously described as partial consolidation is now identified with federalism.

In his XVIIth letter, Farmer tries to justify the shift in definition by emphasizing each state's retention of control over its internal affairs. Requisitions on the states remain a characteristic of federalism in that sphere at least.³⁸ Thus the Federal Farmer has already accepted the necessity of moving away from a traditional federal arrangement. He and Brutus both agree with Hamilton's criticism of the Articles of Confederation. But they both remain committed to state control of internal affairs.

Unlike Hamilton, Madison does not attempt to describe the Constitution as wholly federal. Rather, in Federalist 39, he presents an elaborate five-part examination of the Constitution to prove that it is “partly federal and partly national.” Thus Madison adopts the position of the “moderate” nationalists, or compromisers, in the Federal Convention, whom he had opposed when they had advanced that slogan to argue for state equality in the Senate. At the time, he argued that the proposed government was entirely national, since it would act directly on the people and not on them through the states.³⁹ Now, Madison makes use of the compromise that was forced upon him and he introduces four additional criteria, besides the one he had used in the Federal Convention, to demonstrate the Constitution's mixed character. The five criteria are: (1) “the foundation on which [the government] is to be established”; (2) “the sources from which its ordinary powers are to be drawn”; (3) “the operation of those powers”; (4) “the extent of them”; and (5) “the authority by which future changes in the government are to be introduced” (No. 39, p. 243). In his examination of the Constitution in terms of these criteria, Madison's unstated assumption is that any recognition of the states as states is a sign of federalism. This is the original “new federalism.”⁴⁰

As for the Constitution's ratification, Madison calls it “a federal act,” because the people ratify in the states (No. 39, p. 243). But this argument ignores the two, perhaps three, essential departures from the existing constitution's amending provision: unanimity was dropped; popular conventions in the states, not the legislatures, were to vote on the Constitution; and the existing Congress was not asked to approve it, but only to pass it on to the states. Recourse to ratification conventions, whose mode of selection the states were free to choose (and about half were popularly elected), had been defended by Madison in the Convention as essential to establish the legal supremacy of the Constitution over the states.⁴¹ Madison goes on to note that each state must give its own consent before it is bound, but he fails to acknowledge that the choice of nine states as the number necessary for ratification offered a better chance that all the states would ratify than would either a simply majority or unanimity. When ratification is considered in light of the preamble's reference to “We the People,” (rather than Patrick Henry's “We the States,”)⁴² it seems more accurate to call the government's foundation primarily, if not wholly, national.

Madison identifies the sources of authority, his next criterion, with mode of election, thus permitting him to conclude that the sources are mixed, both federal and national. But in light of the preamble, again, and the supremacy clause, it seems odd to describe the government's powers as emanating even partly from the states. Furthermore, a truly federal senate would have voted by state delegation, and the state legislatures would have retained their right of recall, as they did under the Articles of Confederation.

Madison concedes that the operation of the government is national, as he had argued in the Convention, but he argues that the extent of the powers is federal, because of the enumeration of legislative power.

Finally, Madison argues that the amending power, since it requires an extraordinary majority but not unanimity, is partly federal, partly national.

Both sides, then, shifted their definitions of federalism away from state supremacy and the exclusive reliance on requisitions. This was true for Brutus and Federal Farmer because they recognized that the proposed Constitution was a better basis for discussion then the existing Articles. What the Anti-Federalists insisted on was a partial recognition of the federal principle of requisitions in the sphere of internal affairs. This brings us to the debate on the powers of government.

B. THE EXTENT OF THE POWERS

The powers of government are discussed in Federalist 23-36 (Hamilton) and 41-44 (Madison). During the same time that Hamilton's essays were published in the New York papers, Brutus published his letters V-X.⁴³ Both writers examine the enumeration of powers in general, and the power to raise armies, control the militia, and tax, in particular. Hamilton's treatment begins with a general argument about how the powers are to be granted (Federalist 23), and proceeds to a discussion of the war powers (24-29) and the tax powers (30-36). The latter discussion includes a treatment of the necessary and proper clause (33). Brutus begins with the most general clauses, such as the preamble, taxing and spending for the general welfare, and the necessary and proper clause; and then he proposes alternatives, more limited than the Constitution's grants, for the tax power (V-VII), the power to borrow money (VIII), and the war power (VIII-X). Except for his discussion of the necessary and proper clause, Madison does not add much to Hamilton's discussion of the key powers.

The debate on the powers of government may be viewed under two headings: a disagreement about the scope of the powers vested in Congress; and Brutus's argument for limited grants of power over armies and money, followed by a defense, by Hamilton, of the Constitution's full grant of power.

In both his first and his fifth letters, Brutus argues that the necessary and proper clause, combined with the taxing and spending power, the supremacy clause, and the preamble, gives Congress a virtually unlimited grant of legislative power. “All that is reserved for the individual states must very soon be annihiliated, except so far as they are barely necessary to the organization of the general government.”⁴⁴ He argues later on that this power will be brought home to the people “through the medium of the judicial power.”⁴⁵

There are two Federalist replies to this argument, and neither one settles the matter. According to Hamilton, “it is expressly to execute these [enumerated] powers, that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws” (No. 33, p. 203). And Madison, perfecting an argument he first made in the Federal Convention in favor of an enumeration so long as it was not unduly confining, argues against reliance on any definitive listing, be it of powers or prohibitions. This meant rejecting the qualifier “expressly,” which had been used in the Articles of Confederation (Article II). Madison contends that silence would have conveyed the same power: “wherever a general power to do a thing is given, every particular power necessary for doing it, is included” (No. 44, p. 285). But what is the meaning of necessary? Is it “convenient and useful,” or “without which the enumerated power is nugatory?”⁴⁶ Suffice it to say that the Constitution's enumeration of powers is not presented by either Hamilton or Madison as describing a clearly delimited amount of power. The Anti-Federalists wanted such limitations, in the name of federalism.

But the argument that produced the most instructive debate concerns the scope of the powers actually given. In Federalist 23, Hamilton argues that a Constitution “at least equally energetic with the one proposed” is required for the preservation of the union. This follows from an application of the maxim that the means must be proportional to the ends, i.e., to the principal purposes of union: “Shall the union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary for this purpose? The government of the union must be empowered to pass all laws, and to make all regulations which have relation to them” (No. 23, p. 155). Since “the powers are not too extensive for the objects of Federal administration,” a choice must be made: adopt this Constitution, in order to preserve the union, or separate.

For the absurdity must continually stare us in the face of confiding to a government, the direction of the most essential national interests, without daring to trust it with the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.

[No. 23, p. 157]

This is the most difficult challenge for the Anti-Federalists, and Storing thought that they were unable to meet it. This may be so, especially since the Anti-Federalists disagreed among themselves. Still, the proposals of Brutus and Federal Farmer merit consideration. They are the strongest alternatives; and notwithstanding the Constitution's ratification, subsequent practice stayed close to them for some time.

Brutus argues that the national government's unlimited taxing power could deprive the states of an independent source of revenue.⁴⁷ Hamilton replies, in Federalist 32, by discussing concurrent taxation, but Brutus is concerned about how the states will make out if both governments tax the same commodity. He thinks the Constitution “should have marked the line in which the general government should have raised money, and set bounds over which they should not pass, leaving to the separate states other means to raise supplies for their own governments, and to discharge their respective debts.”⁴⁸ Drawing on the former colonies' controversy with England, Brutus proposes “the distinction between external and internal taxes.” The former refers to “impost duties on all imported goods,” and it can be collected “in few places and from few hands with certainty and expedition.” The latter refers to excise taxes within the country and direct, i.e. head, taxes. Brutus also thought that a limited duty on exports could be levied, if necessary.⁴⁹

Restricting the federal tax power to external taxes was an important and common Anti-Federalist proposal. It was offered as a constitutional amendment by six state ratification conventions, including New York.⁵⁰ Federal Farmer's version of the proposal was to require the use of requisitions, if it became necessary for the federal government to levy internal taxes.⁵¹ In defense of his proposal along these lines, Brutus replies to Hamilton's argument about the means being proportional to the end, objecting that the government's end is not simply “the common defense and general welfare of the union.” For “besides this, the state governments are to be supported, and provision made for the managing of such of their internal concerns as are allotted to them.”⁵²

Hamilton replies to Brutus in Federalist 30. He repeats his axiom, now called a “fundamental maxim of good sense and sound policy,” “that every POWER ought to be proportioned to its object,” and argues, further, that “in the usual progress of things, the necessities of a nation in every stage of its existence will be found at least equal to its resources” (No. 30, p. 190; emphasis in the original). As for the suggestion that deficiencies could be provided by requisitions on the states (which Federal Farmer proposed after publication of this essay, but Luther Martin had proposed in the Federal Convention), Hamilton dismisses it as proposing to rely on what was an admitted failure.

We turn now to the war power.⁵³ Both Brutus and Federal Farmer objected to the legislative power to raise and support armies, subject to new appropriations every two years, on the grounds that standing armies in times of peace are dangerous. In addition, Federal Farmer expressed concern about federal control of the militia; he wondered why there was no reliance on a posse commitatus.⁵⁴

Brutus begins his discussion as follows. “I take it for granted, as an axiom in politics, that the people should never authorize their rulers to do any thing, which if done, would operate to their injury.”⁵⁵ He seems opposed to standing armies, even if they are maintained in the states, and he and Hamilton disagree on precisely what the practice was in the states and for Congress under the Articles. Brutus argues that the Confederation itself prohibited the states from keeping standing armies, aside from what was needed to protect forts; and while the legal position with respect to Congress's power was unclear, the states exercised ultimate control anyway.⁵⁶

In reply to this objection, Hamilton asks about the need to defend against Indians (No. 24, p. 161) and about the extent of the prohibition—does “keeping them up” also include “raising” armies (No. 25, pp. 164-165)? The first question is easier for Brutus to answer; the garrisoning of forts and frontiers is a permissible exception. On the second point, Hamilton argues that once you concede the need to prepare for emergencies, Congress must judge what is to be done; and it is very difficult to distinguish peaceful times that do require raising an army, and hence having it “standing,” from those which do not. Brutus acknowledges the argument, but he maintains the distinction between the “exigencies” of impending war, and peace, or between a limited and an unlimited discretion.⁵⁷ Brutus therefore proposes that “since standing armies are dangerous to liberty, and have often been the means of overturning the best constitutions of government,” they shall not be raised, except in the cases noted (guards for arsenals, garrisons to posts on frontiers), unless two-thirds of both houses concur.⁵⁸

Hamilton's reply to this is implicit in the above discussion. If Brutus's key distinction breaks down, one is left with the choice of violating the provision to defend the country, or prohibiting even the raising of armies in time of peace. Hamilton calls this latter prospect “the most extraordinary spectacle, which the world has yet seen—that of a nation incapacitated by its constitution to prepare for defense, before it was actually invaded” (No. 25, p. 165). As for the militia, Hamilton notes that “the steady operations of war against a regular and disciplined army, can only be successfully conducted by a force of the same kind” (No. 25, p. 166).

Finally, Federal Farmer argues against a select militia, which he thought would be composed of “the young and ardent part of the community, possessed of but little or no property,” and who could become a threat to the rest. For this reason, he favors a posse commitatus “for executing the laws of the union.”⁵⁹ Hamilton responds directly to Federal Farmer in Federalist 29. His argument is twofold: first, nothing in the Constitution prevents the calling of a posse commitatus; and second, a select militia is more economical than complete reliance on the people at large, and it will “lessen the call for military establishments” and stand as the best security against government oppression (No. 29, p. 185).

This concludes our examination of federalism. If the Anti-Federalists had the better of the argument on definition, inasmuch as they remained faithful to the states, the Federalists had the better argument on the powers, certainly on the war power. Put another way, Publius would risk the states for union and the other side would risk union for the states. We have seen that the Anti-Federalist conception of republican government gives the states an importance that they do not have in the Federalist formulation. It is true that there are occasional references in The Federalist to the people's affections siding with the states and to the “few and defined” delegated powers (No. 17, p. 119; No. 45, p. 292). But if the first argument is read in conjunction with Publius's later statement about the people ultimately being won over by the government that is best administered, which he clearly thought would be the federal government (Federalist 27 and 16), and if the second argument is read in conjunction with his characteristically liberal interpretation of the powers of government (Federalist 23, 30, and 31), I think it is fair to conclude that the federalism of The Federalist was predominantly nationalism.⁶⁰

IV. CONCLUSION

The Anti-Federalist conception of republican government emphasized the need for a substantive link between the great body of the people and their government. The authors of The Federalist stood on what they regarded as the solid ground of election, which directly or indirectly linked the people to their governors. Where the opponents feared oppression from an elective aristocracy in a government that could not represent the middling class, Publius emphasized energy and stability and the need to secure individual rights. And each argument on republican government was connected to federalism. The Federalists emphasized the needs of union, and thus the importance of granting powers liberally. The states were secured because they were established as part of the structure of government. The Anti-Federalists wanted the states to remain more than mere administrative units of the federal government. Hence they argued for a line-drawing approach to the key powers of government, raising armies and money.

The Anti-Federalist demands for amendments to the Constitution—which led to a Federalist promise on the subject, later fulfilled under Madison's leadership in the First Congress—are best viewed in light of this debate over federalism. The Anti-Federalists wanted a Bill of Rights to curb governmental power. When the Federalists denied the necessity of a federal bill of rights on the grounds that whatever power was not enumerated in the Constitution could not be claimed by the government it established, the Anti-Federalists pointed to the Constitution's supremacy and to the extensiveness of its enumerated powers. Paradoxically, however, this argument resulted in the passage of a Bill of Rights that confirmed the new federalism, with its extended republic. The Anti-Federalist proposals to institute rotation and recall for the senate, rotation for the president, and a special council of appointments, were not accepted. Nor were their proposals to restrict the taxation and war powers or the “necessary and proper” clause (by adding “expressly” to what became the Tenth Amendment).⁶¹

The ratification of the Constitution did not end this founding debate on either republican government or federalism. It simply shifted the argument to different interpretations of the new fundamental law. Partisans of both sides should appreciate this fact, since however strong the Anti-Federalist reservations were, and still might be, concerning this new form of republican government, their own proposals respecting the key powers were unlikely to provide for the purposes of union—particularly the common defense, the common welfare, and the blessings of liberty. To find elements of the Anti-Federalist view of republican government today, one could look to the opposition to “big government,” particularly to a strong presidency and an extensive administrative state. In addition, the Anti-Federalist interest in homogeneity and civic responsibility, as reflected in their concerns about qualifications for office, jury trial, the militia, and the posse commitatus, bears some relation to the contemporary interest in referenda and the “communitarian” critique of our traditional emphasis on individual rights.⁶²

The most important Anti-Federalist legacy concerns federalism. One obvious explanation for this lies in the text of the Constitution itself. The states are guaranteed some form of political existence, and, notwithstanding the expectations of Publius,⁶³ they can try to retain the attachments of the people. And while Brutus seems to have seen clearly how some future Supreme Court Justice was going to interpret the necessary and proper clause, the enumeration of powers permits, and has produced, a variety of interpretations of the limits of the federal government's authority.

Another reason why the debate did not end with the Constitution's ratification concerns the sectional compromises, which temporarily muted the deepest division in the country. There is more than a hint of the tensions between a heterogeneous commercial society and a homogeneous landed society in the Federalist and Anti-Federalist discussions about republican government and representation. Since that division was bound up with slavery, however, it was not fully explored. Perhaps the sectional aspect of the commerce question explains Madison's shift to strict construction in 1790, when Secretary of Treasury Hamilton proposed a national bank. It is difficult to imagine the major arguments of The Federalist supporting anything but a strong government to regulate the “various and interfering interests” (No. 10, p. 79). Perhaps the sectional division also explains why, notwithstanding The Federalist's candid and powerful arguments for unlimited powers of taxation, the federal government relied on imposts, or at least excise taxes, for a hundred years. And then it needed a constitutional amendment to facilitate the collection of an income tax, since otherwise the government would have had to collect the money by state quotas. As for the war power, the first conscription act appears to have been in 1863; before then, the government relied on the militia and volunteers.⁶⁴

Today, our constitutional federalism resembles the Federalist formulation more than the Anti-Federalist. Given the requirements of modern government, it is hard to imagine it otherwise. Still, since 1976, we have seen a revival of interest in the tenth amendment as a source of constitutional, and hence judicial, protection of state's rights, and for nearly one hundred years the Supreme Court has interpreted the eleventh amendment as a source for the states' claim to sovereign immunity from otherwise valid law suits by individuals in federal courts.⁶⁵ The constitutional history of American federalism may therefore be described as a continuation of the founding debate, only within the bounds of the Constitution.

Notes

1. Federalist 1, p. 36. For a discussion of Publius's publication strategy and the importance of the form of The Federalist, see Albert Furtwangler, The Authority of Publius: A Reading of the Federalist Papers (Ithaca: Cornell University Press, 1984), chapter 2. For the publication history of the work, see Jacob Cooke's introduction to his edition of The Federalist (Cleveland and New York: Meridian Books, 1961).

2. Federalist 67, pp. 408, 411; No. 69, p. 418; No. 73, p. 446; No. 78, p. 469; No. 83, pp. 503, 506.

3. Herbert J. Storing, ed., The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981). Volume I of that work contains Storing's essay on the political thought of the Anti-Federalists, which has also been separately published in a paperback entitled What the Anti-Federalists Were FOR (Chicago: University of Chicago Press, 1981). The passage quoted above comes from page 3 of that edition. Storing's edition of the Anti-Federalists is also available in a one-volume abridgement entitled The Anti-Federalist, ed. Murray Dry (Chicago: University of Chicago Press, 1985). All citations to the Anti-Federalists will be to The Complete Anti-Federalist. In addition to citing the particular Anti-Federalist who is writing, and (where relevant) identifying the letter by its Roman numeral, a three-part number will be used to identify the volume, entry in the volume, and paragraph or group of paragraphs.

4. See Storing's introductory sketches and citations to both writings, at 2.8.intro and 2.9.intro.

5. The seventeen “Letters of Brutus” were published in the New York Journal from October 18, 1787 through April 10, 1788. The Federalist papers were published in different New York papers, mainly the New York Independent Journal, from October 27, 1787 through May 28, 1788. The “Letters of the Federal Farmer” were published and widely circulated in pamphlet form (a first series of five letters, followed by an additional thirteen), but they were also published in the (NY) Poughkeepsie County Journal. See Storing, introduction to Federal Farmer, 2.8.

6. 2.8.1; 2.9.2. For an example of the view that the “critical period” thesis was a fabrication, see Charles Beard, An Economic Interpretation of the Constitution of the United States (New York: The Free Press, 1935), p. 48, and Merrill Jensen, The New Nation (New York: Vintage, 1950), pp. xiii, 348-349. Each is a critique of John Fiske, The Critical Period of American History, 1783-1789 (Boston: Houghton Mifflin, 1888).

7. Brutus, I, 2.9.3; Federal Farmer, I, 2.8.1.

8. Federal Farmer I, 2.8.4; see also Brutus, I, 2.9.4.

9. Federal Farmer, I, 2.8.3.

10. Federal Farmer, VII, 2.8.93.

11. Brutus, I, 2.9.3; Brutus, II, 2.9.24.

12. See Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (New Haven: Yale University Press, 1966), vol. 2, pp. 449-455 (August 29).

13. Brutus, III, 2.9.38.

14. For Publius's discussion of the language of the congressional authorization and his defense of the nine-state ratification requirement, see Federalist 40 and 43.

15. Federal Farmer, I, 2.8.8.

16. Brutus, I, 2.9.4.

17. Brutus, I, 2.9.11 quoting from Montesquieu's Spirit of the Laws, book VIII, chapter 16.

18. Brutus, I, 2.9.16.

19. Federal Farmer, III, 2.8.25-26.

20. Montesquieu discusses representation and separation of powers in connection with the English Constitution, whose principle is political liberty (book XI). Publius could have argued that Montesquieu regarded England as “a republic disguised under the form of monarchy” (book V, chapter 11), and that the proposed Constitution was a thoroughly republican, i.e., elective, version of English government. But that might have sounded like Publius was advocating an elective monarchy.

21. Federal Farmer, II, 2.8.15; III, 2.8.24.

22. Federal Farmer, XVI, 2.8.190.

23. David Epstein, The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984), p. 120; from Federalist 37, p. 227.

24. See Epstein, Political Theory, pp. 193-197.

25. While Federal Farmer is responding to a Federalist objection that his earlier account was “chemerical,” as Storing points out, it cannot be to Federalist 35, since that was published after Farmer's VIIth letter. See Federal Farmer, VII, 2.8.97, note 62.

26. Federal Farmer, VII, 2.8.97.

27. Federal Farmer, XI, 2.8.147.

28. Federal Farmer, XIV, 2.8.178-182.

29. Brutus, XI, 2.9.135-138; Brutus, XV, 2.9.187-193.

30. Storing, What the Anti-Federalists Were FOR, pp. 9-10.

31. See the statements of Gouverneur Morris and George Mason in the Convention, in Farrand, Federal Convention, vol. 1, pp. 33-34, 37.

32. See Smith, 6.12.5 and Impartial Examiner, 5.14.26.

33. In this discussion of federalism, I shall refer to Hamilton's and Madison's views individually, rather than to the collective “Publius.” I do so because their approaches to the definition of federalism vary, and while each covers similar ground in the discussion of the powers of government, it is worth keeping the two men's views separate here, in light of their subsequent disagreement, in 1791, over the bank bill and the enumeration of powers generally.

34. Federalist 9, p. 75, quoting from Montesquieu, Spirit of the Laws, book IX, chapter 1.

35. Federal Farmer, I, 2.8.10.

36. Federal Farmer, I, 2.8.11,13.

37. Federal Farmer, VI, 2.8.72.

38. Federal Farmer, XVII, 2.8.205.

39. See Madison's speech of July 14, 1787, in Farrand, Federal Convention, vol. 2, pp. 8-9.

40. See Martin Diamond, “The Federalist's View of Federalism,” in George C. S. Benson, ed., Essays in Federalism (Claremont: Institute for Studies in Federalism, 1962), pp. 21-64.

41. See his speeches of June 5 and 19, in Farrand, Federal Convention, vol. 1, pp. 122-123; 317.

42. For Henry's argument about the preamble, see 5.16.1.

43. The dates are December 19, 1787, through January 9, 1788, for The Federalist, and December 13, 1787, through January 24, 1788, for Brutus.

44. Brutus, I, 2.9; see also Brutus, V, 2.9.57-58.

45. Brutus, XI, 2.9.130.

46. This describes the original debate over loose, or liberal, versus strict construction. It took place in 1791, first in the House, where Madison urged strict construction and lost, and then in the executive branch, where Jefferson urged strict construction and lost to Hamilton, who argued, to President Washington's satisfaction, for liberal construction. Chief Justice John Marshall later established liberal construction in our constitutional law, in McCulloch v. Maryland 4 Wheat. 316 (1819).

47. Brutus, V, 2.9.62.

48. Brutus, V, 2.9.63.

49. Brutus, V, 2.9.63.

50. See Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 5 vols. (Philadelphia: J. P. Lippincott, 1891), vol. 1, pp. 318-337.

51. Federal Farmer, XVII, 2.8.209.

52. Brutus, VI, 2.9.80.

53. Just before taking up the war power, Brutus suggests that the Constitution should have required a two-thirds vote of both Houses for the borrowing of money (VIII, 2.9.95). I find no explicit reply to this in The Federalist, although I assume Hamilton may be said to have covered it with the argument we just examined.

54. Brutus, VIII, 2.9.97; Federal Farmer III, 2.8.39. Black's Law Dictionary defines posse commitatus as a “group of people acting under authority of police or sheriff and engaged in searching for a criminal or in making an arrest.”

55. Brutus, VIII, 2.9.98.

56. See Federalist 24, pp. 159-60, and Brutus, IX, 2.9.112-114.

57. Brutus, X, 2.9.124.

58. Brutus, X, 2.9.126.

59. Federal Farmer, III, 2.8.39.

60. See Storing, What the Anti-Federalists Were FOR, pp. 34-37.

61. See Elliot, Debates on the Adoption of the Federal Constitution, note 50.

62. See Michael Sandel's introduction to a collection which he edited, entitled Liberalism and its Critics (New York: New York University Press, 1984).

63. See Federalist 27.

64. See Chief Justice White's opinion of the court in the 1918 Selective Services Cases (245 U.S. 366), which identifies the Civil War Act of March 3, 1863 as a national draft (p. 386).

65. The most important tenth amendment cases are National League of Cities v. Usery 426 U.S. 833 (1976), which overturned the application of federal minimum wage and overtime regulations to state and local employees, and Garcia v. San Antonio Metropolitan Transit Authority 53 U.S. Law Week 4135 (1985), which overturned Usery and reinstated the extension of the federal law to state employees. Both were 5-4 decisions. The current minority position is closer to the Anti-Federalist position than the Federalist position. The Supreme Court has also interpreted the eleventh amendment to incorporate the doctrine of sovereign immunity for state governments in federal courts. See Hans v. Louisiana 134 U.S. 1 (1890) and, most recently, Atascadero State Hospital v. Scanlon 53 U.S. Law Week 4985 (1985).