AN this was originally a speech given to a British sixth form group, slightly edited to make it less extemporaneous. I’ve added a second post which I hope will be more controversial.
The Federalist Papers are a user manual to the US constitution, they explain clearly what the true intent of the founding fathers was. They are an unimpeachable guide to the kinds of policies that should govern any nation. And they are a valuable guide to how we should interpret American law today. If we want to improve America and fix the political problems there we should read the Federalist Papers before anything else.
That entire paragraph was a lie, (even the name, they’re technically just “The Federalist”). In reality they are a series of 85 letters written under the pseudonym “Publius” and published in various New York newspapers from 1787-8. Its three authors were John Jay (President of the Continental Congress), James Madison (the 4th President), and Alexander Hamilton (1st Secretary of the Treasury, who is inexplicably the subject of a rap musical that just recently opened). They are utterly partisan, and without reading their opponents they are worse than useless, because they pretend to far more certainty than they ought.
I want to explore the Federalist from a point of view closer to its original context than how we see it now.
A reminder of the context.
We’re talking about the time around the American Revolution, call it 1760 to 1790 to make the numbers round. At the start of this period America isn’t a country, it’s 13 countries that have joined together in a common goal of getting concessions from the king, but were very consciously and deliberately not one united country. The American revolution started out as just another English tax revolt, just like every other tax revolt in the previous thousand years. It was a long while between the first shots being fired and most people having a clear notion that this was a war about independence.
Because they didn’t know they were going to become a country they didn’t start out with a clear legal framework. They were governed by the Articles of Confederation and Perpetual Union. This was an emergency document thrown together when the revolution started. The articles basically said that the states should send a delegation to a central congress, and then the states would get one vote each on things like what the army should do, negotiation on behalf on all 13 states with other countries, making sure that all the states kept to agreements like boycotting british goods.
The central congress was utterly spineless, couldn’t really do much when people didn’t obey it. Throughout the war Washington wrote letter after letter after letter saying “you really, no kidding, dead serious, need to send me money right now or I’m going to have a mutiny on my hands here”, and congress kept sending letters back saying “sure, we’ll get right on that as soon as we can convince one of these states to give us some”.
It was widely agreed that congress was useless, all the really good politicians went home to their own states and did important things there, the guys who got sent to congress were the same kind of people we in the UK send to Brussels, people who we don’t really want round.
In this context a faction started up who wanted a much stronger central government, one that could speak for the whole continent and like … pay the soldiers all the back pay they were owed … and stop the French in Canada giving guns to the Indians … that sort of thing. They got together an official convention to “discuss changes to the Articles”. The Convention in Philadelphia then said “sod that” and wrote a whole new US constitution and asked that it be ratified by special elections in each state.
The Convention met in secret, they had to, otherwise Massachusetts newspapers would have published only the compromises Massachusetts made and not the compromises Georgia made. They hoped they could present a fait accompli and so get a fair hearing. Or of course if you’re opposed to them “they hoped they could bounce the country into agreeing without thinking about it”.
So, what kind of constitution did they come up with? Like everything in the revolution it’s based on a British model, combined with European Enlightenment ideas …. and a lot of really ugly realpolitik compromises. To paint a quick sketch:
The laws are written by Congress, just like the British parliament. In the old Articles Congress each state got one vote. Obviously the huge states like Virginia and Massachusetts didn’t like this, it could end up with the small states ganging up and imposing their will on the majority. They proposed states voting according to population. And so of course the small states like Rhode Island and Delaware said no way no how, that’s means we don’t get any say at all. So compromise, Congress is made a two houses: one, the representatives, represents the people at large, the other, the senate, represents the states individually, each state gets the same number of votes.
The laws aren’t enough though, you need people to carry them out, hire the policemen, decide what time of year tax returns should be sent in, that kind of thing. So we have the executive, which is one man called the president. He gets elected for 4 years. But he’s not really got much power. He leads the nation in war, writes cheques, that kind of thing. Anything important, be it hiring important people like judges, signing treaties etc, he needs to get the backing of the Senate. It’s a very small role without real power, but with real authority, after all this man is elected by the whole of the people (indirectly) .
The scope of the federal government is quite small. Basically their job is external relations, treaties, war, dealing with the Indians; minting coins; running the post office; regulating weights and measures. It’s really very limited, nothing at all that would imply they should run things like schools or healthcare. Except for the little phrase tacked on that they can do anything else at all necessary and proper for carrying into Execution the foregoing Powers”, which if that isn’t broad enough for you, includes “promoting the general welfare”. Ie, do whatever you want.
The Articles Congress was allowed to raise taxes on the states and having them collect them. The states were …. not always as prompt and efficient with this as might be wished for. So the new congress got the power to tax individuals directly. Which … does anyone remember why we started this war thing?
I want to give just a flavour of how the debate rolled on for the following months. The two sides are the federalists who favour the constitution, and the anti-federalists, who opposed it. And just from that you can see who won. The winning side of the argument is never called “anti-”, nobody calls themself anti-choice or anti-life.
The debate is utterly wonderful to read, because so much of it is pamphlets. We still have pamphlets today, only we call them by another name. We’re talking about pseudonymous blogs, think Zoellla, but for politics. So like Guido Fawkes, Fleet Street Fox, or Jack of Kent. And of course because the founding fathers were a massive bunch of nerds these pseudonyms were often roman leaders.
At the time the Federalist Papers were not seen as a definitive and correct statement of orthodoxy, it was one side of a wide-ranging argument. It’s a mistake to think this is an argument between TRUE AMERICAN PATRIOTS like GEORGE WASHINGTON and sniveling conniving monarchists who wanted to sell America back to King George.
In fact it was an argument between TRUE AMERICAN PATRIOTS like GEORGE WASHINGTON and TRUE AMERICAN PATRIOTS like RICHARD HENRY LEE. Lee is the great-uncle of Robert E Lee, he was the one who formally moved the motion to declare independence, he was a signer of the Articles of Confederation, he was president of the Articles Congress. He has as much of a claim to the title “founding father” as anyone. And he argued powerfully against the constitution. And it’s not just him, George Mason (one of the philadelphia delegates who helped write the thing), Patrick Henry (of “give me liberty or give me death” fame), and Sam Adams (who was central in the political machinations in favour of independence in the Continental Congress).
The Federalist is a wonderful collection of essays, certainly a work of genius, but I’m not going to recommend you read it. I’m going to recommend that you read the anti-federalist papers.
The opponents of the constitution had many very valuable contributions to make. It doesn’t take much critical reading to conclude that they in fact won several of the important arguments. And so the popular dismissal of these “anti-federalist” works makes us less able to understand the politics of the day.
As a theory of politics
The Federalist contains some of the most clearly reasoned political theory in English. If given the choice of only one desert island book to read before writing a constitution the Federalist would be a wonderful choice. It gives excellent arguments that ought to inform current policy.
It is also important to consider the various ways that, even within the lives of its authors, the arguments of the Federalist were proven wrong or inadequate. I’ll take a handful of issues and explore who won the argument, from our slightly more informed vantage point, and from theirs.
Size of the nation
Take Federalist 10 as an example. They were even more worried than we are today about partisanship. They didn’t aim for the parties to cooperate like we do, they wanted there to not be parties at all. And according to Publius the size of America is an excellent defence against partizan spirit.
Because American is so diverse, so the congressmen will be diverse. The representatives from Georgia will have very little in common with the representatives from New Hampshire. Which means if the simply gang up in partisan groups the groups will be too small to impact anything. You don’t just have the north and the south. You have the north who favour industry, the middle who favour a mixed economy, and the south who favour agriculture, the inland states who want no taxes on land trade, but high taxes on sea trade, and coastal states who want the reverse. Then within the states are the cities who favour taxes on land and the rural areas who favour taxes on money. So the large-state, slave owning, inland, town votes would never be a large enough grouping that they could cause any trouble. So you can’t get parties that are big enough to upset your politics.
Brilliant argument right? Utterly convincing right? And it even worked in practice! For …. about 6 years … at a push. And then broke down completely and has never worked again.
The effort taken in overcoming the evils of faction and party didn’t prevent the United States falling into clear party divisions three times in one generation. First the whole country was split into Loyalists and Patriots during the war, and the very considerable differences between Virginia and Massachusetts didn’t prevent the Patriot faction imposing its will on the Loyalist minority. After that the whole country was split into Federalists and anti-Federalists, and the considerable differences between Georgia and Rhode Island didn’t prevent the Federalist faction imposing its will on the anti-federalist minority. Then the country was again split into the Federalist faction under Alexander Hamilton and the Democratic-Republican Party under Thomas Jefferson.
One conclusion to take away from this: When designing a system with complex features, always ask “what if this feature fails”. Because Madison and Hamilton thought they had prevented factions, and as a result America doesn’t work very well in a few ways they would have disapproved of.
Size of the representation
A huge problem that the anti-federalists had was the size of congress. The first congress had just 26 senators and 64 representatives. Half is enough to do business, and and 2/3rd of that enough to decide policy in all cases, so you need 22 representatives and 8 senators to write the laws of the land. … Bribing 30 people is not that hard. The anti-federalists were convinced that the congress would instantly get bought out by someone with deep pockets and then become his pawn. Plus without many representatives your representative doesn’t know that much about your local area, he has to cover too many people
The Federalist papers explains that this doesn’t really matter. People won’t vote a second time for someone who has been flatly bribed. And the central government doesn’t have to deal with local concerns, so it doesn’t actually matter much that they know your village well.
It turns out it didn’t matter much in practice: like the Federalists argued people weren’t flatly bribed in the early congresses, and the early congress didn’t have much day to day impact in small local areas. And of course, as America got bigger, so the the house got bigger, until it got to the over 400 it is today, at that point it just can’t get much bigger and still debate things.
It is hard to predict where exactly corruption will come from. Don’t rely on predicting that, rely on setting things up so even corrupt people will do sensible things.
Bill of Rights
The first draft of the constitution had no bill of rights attached. This was almost universally agreed to be an error. Many state ratifying conventions send explicit instructions that if the constitution was adopted then adding a bill of rights should be the first thing to do. And they used the explicit term “bill of rights”, as an echo of the bill of rights that already existed in England (where some of the language of the forthcoming one would be borrowed from).
The Federalist argument against the bill of rights failed utterly before the constitution was ratified. They argued that the lack of a bill of rights was actually intentional, and had good reason. (From diaries kept at the time it seems like they just ran out of time and energy to agree on one). But people expected one, it was a part of various drafts of state constitutions, and a part of the constitution of Britain.
So why did publius drop the ball here? They had to defend the constitution as it was, it’s likely they wouldn’t have if they didn’t have to defend their side. But that’s not a full excuse, Hamilton seems to have been a believer at least in part. He made two arguments: First that congress wouldn’t infringe on people’s rights because they had no explicit power to. I think given his subsequent rather fast-and-loose attitude to the powers of the federal government that we can chalk that argument up to hypocrisy. But his second was that with the bill of rights people might assume any powers not listed didn’t exist. I think this is a very reasonable argument … just one that the majority in Roe v Wade might dispute.
An important thing to remember is not just the object level lesson, that if you have a powerful court rights are enhanced by a bill of rights not hindered by them. The important thing to remember is that the fathers of the constitution, some of the greatest defenders of liberty of their day, didn’t agree. Don’t just trust what your reason tells you about these complex questions, because it can go badly wrong.
The argument about the power of the federal government to impose itself on the states is more mixed.
To the anti-federalists it was very clear. The federal government controls the army, it raises taxes directly on individuals, which means it has to have as many tax collectors as the states do. What happens if, or should I say when, the federal government wants to raise a huge amount of tax, so much that the states will have nothing left to collect without reducing people to penury? Will the states give in and stop what they do? Or will they try to collect taxes anyway and be suppressed by the army?
The Federalist argues that the states are very powerful in the new system, after all, they elect the most powerful house of congress, the house that is required to pass any treaty, they have no restriction on what they can do as states. And of course people don’t see themselves as subjects of the central government. They see themselves as New Yorkers or South Carolinians. People will naturally be more loyal to the states.
How did it work out in practice? States rights were slowly eroded until the civil war. Then that war firmly decided that at least as far as the appalling institution of slavery was concerned that states rights ought to be abolished. Then we get to the Great Depression, and the federal government starts doing things like setting a minimum wage nationwide. Then we get to segregation, and the use of the national guard to impose de-segregation against the wishes of the states.
The states survived and kept far more of their power far longer than the anti-federalists expected. And the few occasions where the army has been used to impose things on states it has been in a noble cause (though no human action is pure). But the end result is the same, the states were consumed. I leave any conclusions in this mixed bag to you.
The original constitution guarantees jury trials in criminal cases, and hence by obvious implication, it does not guarantee them in any other case. And it says that at appeal judges can overrule juries. This was correctly regarded as a danger. Quite why is often ignored by people lucky enough to live under the common law.
I want to quickly remind you all of why juries matter. I’m sure none of you were taught this in school, but it’s the most important lesson in the law. If you are ever on a jury and you think that the thing the defendant did ought not to be illegal then it is your duty as an Englishman (and I count the Americans here too) to say “not guilty m’lud”. Remember you have to say “m’lud” or it doesn’t work. But the principle remains in the common law, no government (however powerful or however authoritative) is a better judge of the law than 12 random guys.
The anti-federalists were rightly very worried that the common law might fall away, and with it all the defence of the common ancient liberties that make the English nation what it was.
Now we all know how this went. The bill of rights gave juries far more powers. Then in Marbury v Madison the supreme court decided that the common law power of judges to overrule the government in defence of rights was very much a thing. So here the Federalists were absolutely right, and depending on your preferences either Citizens United or Obergefell proves they were rather too right and the common law power of judges is rather too strong.
The essays are fantastically interesting on their own, but with a bit more context new aspects of them stand out.
It’s complicated. If you’re reading this you are smart and brilliant. You will be asked your opinion on the coming crisis in politics. What crisis you ask? The one that’s coming. I’ve no idea what. I just know that within your lifetime one will happen. And when it does it’s important to remember The Federalist. The Federalist is at once deeply flawed and of superhuman excellence, a parochial letter to a small group and a manifesto to the whole world, a reminder of how far America has moved from her founding ideals and how much that move was needed.
On a practical level it’s a reminder that “having no constitutional power to do something” isn’t a good defence against people doing it. That you should plan for your plan failing. That you should not expect to know how to stop things like corruption. That you give people an inch and they’ll take a mile. That the bastion of freedom you’re thinking of might be the tool of the oppressor next generation.
But on a wider level it’s a reminder that you need to read both sides of the argument, no matter how clear the arguments for one side are. It’s a reminder than on both sides of the debate are good honest patriots. It’s a reminder that the greatest political minds of their day thought the bill of rights was superfluous. It’s a reminder that George Washington signed off on a document that regarded “all other persons” as worth 3/5th of a free white. What will people in a few generations think of your expedient idea?