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The Federalist Papers: a lobby supporting the embrace of US Constitution

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The Federalist Papers

Alexander Hamilton, John Jay and James Madison wrote a series of essays, 85 in all, between October 1787 and the following May. The three wanted to convince New Yorkers to replace the Articles of Confederation with the new U.S. Constitution. Each essay (or “paper”) discusses some point in support of a federal government.

In Federalist Paper No. 9, Alexander Hamilton argues that a strong central government is the surest safeguard a people has against “domestic faction and insurrection.” He cites as examples Greece and Italy, both of which were comprised of small city-states, and both of which suffered continuous unrest and upheaval. He then quotes Montesquieu’s description of the advantages of a centralized government to bolster his own argument: “It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.” He finishes by assuring the states that the establishment of a central federal government does not mean the abolition of government at the state level.

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In Federalist Paper No. 10, James Madison continues the argument begun by Hamilton in No. 9, but he places more emphasis on the idea of factions and factionalism. He states that the distrust of government and the instability and unrest sweeping the young nation is due largely to factionalism: “These [problems] must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.” He suggests that in order to curb the evils of factionalism (factionalism is the division of people into groups with common interests, which then wrangle with one another: Democrats vs. Republicans for example) one can either remove its causes or curb its effects.

Madison says there are two ways to remove the causes of factionalism: destroy the liberty in which it flourishes, or make sure that everyone thinks exactly the same way. Neither is a viable option. Instead, he seeks to limit the effects of factionalism by establishing a republican form of government. (Republican with a small “r”). This is not a democracy, in which everyone has an equal voice, but a representative government, in which a smaller number of people represent the whole, working together for reasonable compromise. In short, he advocates the system that we have today.

In Federalist Paper No. 49, written either by Hamilton or Madison, the author investigates an argument that the way to harness the power of one governmental department that is attempting to gain ascendancy over the others is by an appeal to the people in the form of a convention to change the Constitution. He concludes that this would be a futile effort, because the department most likely to be at fault is the legislative; it is larger and more powerful than the executive and judicial, and any convention would likely be made up of a disproportionately large number of men from this branch. They would be deciding issues related to their own department, which they would no doubt uphold. The author dismisses the suggestion of direct popular appeal as a means of controlling departmental abuses.

In Federalist Paper No. 51, written either by Hamilton or Madison, the author explores the idea that no one branch of the government can be allowed to become unduly influential or powerful; taking over completely and destroying the government. The author doesn’t go into great detail here, but gives some basic ideas, such as each department should “have a will of its own”, and departmental members should have as little say as possible in the appointment of officials to the other branches (in theory, he wants the people to have the final say on who serves in the government). Perhaps the most important statement in the Paper is this: “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” He further suggests that the ability to resist attack should be proportional to the actual danger of attack; that ambition should counter ambition; and that man’s self-interest must be made to coincide with the “constitutional rights of the place.” In short, he is discussing ways to establish the checks-and-balances system that keeps one part of the government from taking over the others and becoming a dictatorship.

In Federalist Paper No. 80, Alexander Hamilton considers what powers the judicial branch should have, and what its “proper objects” are. He lists five types of cases that are suitable for consideration by the judiciary: cases arising out of laws of the United States; cases which concern the execution of provisions in the articles of Union; cases to which the United States itself is a party; cases involving the “peace of the Confederacy”, whether the threat to peace is from foreign nations or from the states themselves; and maritime cases. These, Hamilton says, are the matters over which the judicial branch should have jurisdiction. (The following three Papers further discuss the judicial branch.)

In Federalist Paper No. 81,Hamilton argues the proposition that “the judicial power of the United States” should be “invested in one Supreme Court” with other, lower courts created as needed, is a sound one. He says that the only real decision to be made about the court is whether or not it is to be an independent body, or branch of the legislature. Those who want to subsume the Court into the legislature fear that Court decisions will be made “according to the spirit of the Constitution” and not in accordance with the law.

Hamilton directly opposes this objection, saying, first, that there is no evidence to suggest that the Court would be guided by anything but a strict adherence to law. Even more importantly, he opposes the idea of making the Court subordinate to the legislature because the justices would, in that case, have their legal opinions “second-guessed” (my term, not Hamilton’s) by men who had no legal training. Finally, Hamilton fears that factionalism will corrupt the Court if it is part of the legislative branch.

In Federalist Paper No. 82, Hamilton continues his examination of the judicial system. In this essay, he addresses the matter of jurisdiction, including the question of whether cases that go to the Supreme Court will be heard there exclusively, or if lower courts will have concurrent jurisdiction. If lower courts do have such jurisdiction, how will they stand in relation to the “national tribunals”?

Hamilton reassures his readers that “States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases…” These three exceptions are where an “exclusive authority is granted to the Union”; where a particular authority is given to the Union and prohibited to the States; and where authority is granted to the Union that makes no sense when granted to the States. The States’ judicial systems will thus retain their present authority, with these three exceptions.

Finally, Federalist Paper No. 83 is another consideration of the legal system, this time with respect to trial by jury. Here Hamilton is answering concerns that because the Constitution is silent on the subject of civil causes of litigation, it can therefore be inferred that adoption of the Constitution would mean the abolition of trial by jury. Further, opponents of adoption extend their argument to include criminal offenses. Hamilton refuses to address the second point at all, saying that anyone who would argue that the Constitution will not allow the punishment of criminals is ludicrous. As to the other, he points out that there is a subtle but quite real difference between not providing for something, and abolishing it entirely. His argument is that rules of legal interpretation are based on common sense, and “the true test of a just application of them is its conformity to the source from which they are derived.” It makes no sense, then, to suppose that a provision for trying criminal cases by jury means that civil cases, or any other non-criminal cases, will not also be tried by jury. In other words, it’s nonsense to suppose that “an injunction of the trial by jury in certain cases is an interdiction of it in others.”

Please note, all the papers, plus the introductory material, can be found at this website: http://lcweb2.loc.gov/const/fed/fedpapers.html. The papers are listed and it seems unnecessary to reference them individually.

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