Federalist 39: James Madison's Confusing Sales Job

Read all entries in my series on The Federalist Papers here.

Well. No wonder we're so confused.

My writing partner Ben Boychuk and I had the pleasure of interviewing author Ron Chernow this week. He wrote the acclaimed new biography of George Washington, along with an earlier bio of Alexander Hamilton -- he knows something, in other words, about the founding of this country. In our discussion, Chernow repeated his assertion (first made in a New York Times op-ed) that today's Tea Partiers are wrong to claim an exclusive ideological heritage descended from the Founders. In truth, Chernow said, the Constitution was a compromise between competing visions of government -- powerful or limited? Instead of actually settling the question, the Founders fudged it a bit, so that the arguments of the 21st century aren't so different from the 18th.

Nowhere is that tension more evident, perhaps, than in James Madison's authorship of Federalist 39. Madison's intent here is to fend off criticism of the proposed new government as insufficiently federal -- that is, he's arguing against the proposition that the Constitution takes away too much power away from the states and deposits it in the national government.

Wait: That's kind of what the Constitution was created to do. The Articles of Confederation, which gave pride of power to the states, had already proved unworkable as a means of national government. But yesterday's antifederalists, like today's Tea Partiers, wanted to see more power left to the states -- and they were ruthless in suggesting that advocates of the Constitution were lying in their efforts to convince Americans that states still retained considerable power. Here's "A Farmer" writing in Antifederalist No. 3:

There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution. This abuse of language does not help the cause; every degree of imposition serves only to irritate, but can never convince. They are national men, and their opponents, or at least a great majority of them, are federal, in the only true and strict sense of the word.

Madison has tricky political ground to cover here, then, and he treads cautiously and confusingly. Let's jump to the final paragraph of 39 for a picture of the ambiguity.

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Got that?

Now it's true that something can be partly one thing and partly another. But this paragraph -- and the whole paper -- makes me wonder if the effort to sell the Constitution as a document of "limited" government is more a political sales job than a substantive description.

The new government, after all, will have unlimited power of taxation. It will be the arbiter of disputes between the states. It alone has the power to raise a standing army. The one power the states seem to retain over the national government at this stage is whether or not to opt-in to the system. After that, they can shape it somewhat -- through electoral votes and appointments to the Senate -- but there are no real veto points once the national government has made up its mind about a course of action. The states can give legitimacy to the national government; there's no real mechanism for them to withdraw it.

That's not to say the national government has unlimited power overall. It has its spheres of influence, and the states have theirs.

In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

But the national government's spheres of action are biggies. That's why the antifederalists fought the Constitution.

I'm not arguing for all this as a brief for unlimited central government, incidentally. I'm rather haphazardly trying to make sense of this as a pitch at the time, and looking at it in light of what actually happened in America's history. And what I'm seeing here is this: James Madison, whether he wanted to or not, left the door open to a bigger government than what today's Tea Partiers want -- or perhaps he himself envisioned.

How wide? I suspect we'll find that out in the coming papers.

Federalist 14: Something old, something new

The entire live-blog of "The Federalist Papers" can be found here.

My friend Ben is fond of distinguishing American conservatism from its European forebears; American conservatives, he has told me on several occasions, are conserving a revolutionary heritage. I thought about his statement quite a bit while reading James Madison in Federalist 14.

This chapter is, ostensibly, about whether the United States is too big to be governed effectively. (Madison's answer: If we were a pure democracy, with every man given a direct voice in governing, sure. But since we're a republic -- with representatives sent from the 13 states to the heart of the union -- we'll do fine. And hey, we managed to pull off a revolution together!)

But as we near the end of 14, it's apparent that Madison has another topic on his mind: Whether the type of government embodied in the proposed Constitution is so new, so radical, so unfamiliar that its very novelty increases the risks of failure. Madison's answer, of course, is "no." The Constitution might look like a new animal, he suggests, but it's really a hybrid of the best parts of governments found elsewhere in the world, and throughout history. At the same time, though, Madison offers a defense of the spirit of experimentation:

Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

(Snip)

Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They 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.

I noted at the outset that conservatives tend to cite "The Federalist Papers" more often than liberals and progressives, and I still think that's true. But it's here that I start to see signs that progressives can also claim a heritage from the Founding Fathers. Today's conservatives, I think, want to bind us to the vision of the Founders in a way that, perhaps, the Founders would've found alien. A reason I hear for that, often, is that human nature hasn't changed so much in 200 years. And that's right. But I don't imagine it had changed all that much, frankly, in the 200 years before the Constitution was written, either. The Founders, in other words, were not the last wise men to walk this earth.

Still, the Founders might've been experimenters and progressives, but they were rationalists and empiricists as well. They didn't build the Constitution out of a sense of pure novelty, but sought foundations in history and experience for what they were trying. And they expected, as Madison notes, that their successors would both "improve and perpetuate" what they built. If we are to conserve a revolutionary heritage, then, perhaps it was intended from the beginning that we preserve both the revolution and the heritage.

Federalist No. 6 - Federalist No. 10: Let's not fight with each other

I said last time that the shadow of the Civil War would loom heavily over my reading of "The Federalist Papers" -- and starting in Federalist No. 6, it really, really does. Because it's here that Alexander Hamilton starts to make the case that a strong union won't just protect the individual states from wars with external powers -- it'll also keep the states from making war on each other.

So, ummm ... how did that work out for you?

No. Wait. Snark is a little too easy here. Truth is, Hamilton's got history on his side -- but he's going to take his time getting to the most useful parts of it. Instead, he tells us in No. 6 that the problem with leaving the states to proceed forward as autonomous nations is that each small state will be more likely to see the rise of a leader who makes war on neighboring states for his own vainglorious reasons.

Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification.

He goes on at length about this, citing examples from Pericles and Henry VIII, and well, he's right. That's absolutely a danger -- but it's not the ONLY danger, and sometimes it's not even the most important one. (And in any case, both large nations and small ones are subject to the danger.) The Civil War came about not because (say) Robert E. Lee dreamed of a thousand monuments to his name, but because there were very real moral (slavery) and philosophical (the role of the federal government) differences between the Northern and Southern states.

To be fair, Hamilton acknowledges as much in No. 7, listing out a series of reasons individual states might make violence upon each other: territorial disputes, including claims to territories in the west; "the competitions of commerce;" the settling of debts already owed by the Union (mostly leftover from the Revolutionary War); differing approaches to settling contracts; that kind of thing.* It's notable, though, that Hamilton speaks here in generalities -- because there's a specific notable omission: SLAVERY! WHAT ABOUT SLAVERY?!?!

*I don't want to spend too much time on a tangent here, but there's been a theory advanced among (for lack of a better word) neoconservatives in recent years that America preserves its security by establishing democracies in other countries because democracies don't tend to make war on each other. After reading Federalists No. 6 and 7, I think it's safe to say that Alexander Hamilton, drawing from history, might pooh-pooh that notion.

The result of all these potential sources of conflict, Hamilton says in No. 8, would be that each state and/or small confederacy would probably end up more militarized -- and thus more injurious to personal liberties -- than if they stuck together under the proposed Constitution. This is kind of a sly argument: One of the main concerns of the Antifederalists, I gather, is that the new Constitution would allow a central government to form a standing Army. Well, Hamilton says, the raising of a standing army can only be inferred from the words of the Constitution -- but it's a dead certainty if the states go their own way. They'll be so likely to come in conflict with each other -- and here Hamilton drops a number of examples from Europe -- that they'll have to raise their guard against each other.

In making this case, he says a few words about the militarization of a society that seem to be worth considering in 21st century America.

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors.

This kind of society, of course, is what the new Constitution is meant to protect against. And that's the promise Hamilton makes.

But if we should be disunited, and the integral parts should either remain separated, or, which is most probably, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe -- our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

Or, as he says more succinctly at the outset of No. 9:

A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.

It is in Federalist No. 10 that James Madison (finally!) makes an appearance and starts to explain why a union under the proposed Constitution will be able to tamp down -- though never eliminate -- factionalism between the states. Basically, the proposed form of government -- a republic -- will allow for democracy but not too much democracy; populist passions will be cooled by the filtration of a small group of elected men, who will thus be able to keep the passions of the day balanced against each other. Maybe one state could come under the sway of crazy men with crazy ideas, he says, but certainly not all of them at the same time. A republican form of government will "refine and enlarge the public views," he says,

by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Which brings us back around to the Civil War. If the Constitution was supposed to tamp down conflicts between the states and temper their passions ... well, why didn't it?

Maybe it did. I've been reading the Federalists with the idea that the Civil War disproved some of the assertions made about the effects of unity, but maybe I'm wrong. Maybe the Civil War is just a huge, glaring, bloody exception to the rules that Madison, Hamilton and Jay are setting forth here. And it would be 70 years or so before the divisions between North and South turned bloody. We have stuck together -- despite some turbulent times -- since then. So who knows?

In any case, these first 10 Federalists have felt -- to this reader at least -- like so much throat-clearing. There's been a lot of talks about the benefits of unity and the dangers of splitting up into separate states or confederacies. There's been precious little talk about the proposed Constitution itself, as well as the deficiencies of the Articles of Confederation. We've got a few more chapters to go discussing the benefits of union, but just over the horizon we're about to get some answers to our main questions: Why do the Articles suck? And why is the Constitution so awesome?