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The federalist no. 84, [28 may 1788], the federalist no. 84 1.

[New York, May 28, 1788]

To the People of the State of New-York.

IN the course of the foregoing review of the constitution I have taken notice of, and 2 endeavoured to answer, most of the objections which have appeared against it. There however remain a few which either did not fall naturally under any particular head, or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of these remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New-York is of this 3 number. And yet the opposers of the new system in this state, 4 who 5 profess an unlimited admiration for its 6 constitution, are among the most intemperate partizans of a bill of rights. To justify their zeal in this matter, they alledge two things; one is, that though the constitution of New-York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favour of particular privileges and rights, which in substance amount to the same thing; the other is, that the constitution adopts in their full extent the common and statute law of Great-Britain, by which many other rights not expressed in it 7 are equally secured.

To the first I answer, that the constitution proposed 8 by the convention contains, as well as the constitution of this state, a number of such provisions.

Independent of those, which relate to the structure of the government, we find the following: Article I. section 3. clause 7. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Section 9. of the same article, clause 2. “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3. “No bill of attainder or ex post facto law shall be passed.” Clause 7. “No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of congress, accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state.” Article III. section 2. clause 3. “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.” Section 3, of the same article, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witness to the same overt act, or on confession in open court.” And clause 3, of the same section. “The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

It may well be a question whether these are not upon the whole, of equal importance with any which are to be found in the constitution of this state. The establishment of the writ of habeas corpus , the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provisions in our constitution , are perhaps greater securities to liberty and republicanism 9 than any it contains. The creation of crimes after the commission of the fact, or in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments have been in all ages the favourite and most formidable instruments of tyranny. The observations of the judicious Blackstone * in reference to the latter, are well worthy of recital. “To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British constitution.” †

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

To the second, that is, to the pretended establishment of the common and statute law by the constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law, and to remove doubts which might have been occasioned by the revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of 12 the power of the government itself.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent 13 princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.” Here 14 is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution 15 which has the regulation of every species of personal and private concerns. If therefore the loud clamours against the plan of the convention on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is, that both of them contain all, which in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and in the extent in which 16 they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe that there is not a syllable concerning it in the constitution of this state, and 17 in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved?” What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. * And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamation we have heard, that the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights, in GreatBritain, form its constitution, and conversely the constitution of each state is its bill of rights. And the proposed constitution, if adopted, will be the bill of rights of the union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention, comprehending various precautions for the public security, which are not to be found in any of the state constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it as absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found 18 in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are 19 entirely foreign from the substance of the thing.

Another objection, which has been made, and 20 which from the frequency of its repetition it is to 21 be presumed is relied on, is of this nature: It is improper (say the objectors) to confer such large powers, as are proposed, upon the national government; because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body. This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which it seems to be agreed on all hands, ought to be vested in the union, cannot be safely intrusted to a body which is not under every requisite controul. But there are satisfactory reasons to shew that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery 22 county must regulate their judgment of the conduct of their representatives in the state legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide—and how must these men obtain their information? Evidently from the complection of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberation. 23 This does not apply to Montgomery county only, but to all the counties, at any considerable distance from the seat of government. 24

It is equally evident that the same 25 sources of information would be open to the people, in relation to the conduct of their representatives in the general government; and the impediments to a prompt communication which distance may be supposed to create, will be overballanced by the effects of the vigilance of the state governments. The executive and legislative bodies of each state will be so many centinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behaviour of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance, that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives.

It ought also to be remembered, that the citizens who inhabit the country at and near the seat of government, will in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance; and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union.

Among the many extraordinary 26 objections which have appeared against the proposed constitution, the most extraordinary and the least colourable one, 27 is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; and 28 yet there is nothing clearer than that the suggestion is entirely void of foundation, and is 29 the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, 30 I shall only observe, that as it is a plain dictate of common sense, so it is also an established doctrine of political law, that “ States neither lose any of their rights, nor are discharged from any of their obligations by a change in the form of their civil government . *

The last objection of any consequence which I 33 at present recollect, 34 turns upon the article of expence. If it were even true that the adoption of the proposed government would occasion a considerable increase of expence, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America, are with reason convinced that union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government, a single body being an unsafe depository of such ample authorities. In conceding all this, the question of expence must be 35 given up, for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are in the first instance, to consist of only sixty-five persons, which is 36 the same number of which congress, under the existing confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the increase 37 of the population and resources of the country. It is evident, that a less number would, even in the first instance, have been unsafe; and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expence to spring? One source pointed out, 38 is the multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a secretary at war, a secretary for foreign affairs, a secretary for domestic affairs, a board of treasury consisting of three persons, a treasurer, assistants, clerks, &c. These offices are indispensable under any system, and will suffice under the new as well as under 39 the old. As to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference, than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow, that this will occasion an increase of public expence. It will be in most cases nothing more than an exchange of state officers 40 for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The states individually will stand in no need of any for this purpose. What difference can it make in point of expence, to pay officers of the customs appointed by the state, or those appointed 41 by the United States? There is no good reason to suppose, that either the number or the salaries of the latter, will be greater than those of the former. 42

Where then are we to seek for those additional articles of expence which are to swell the account to the enormous size that has been represented to us? 43 The chief item which occurs to me, respects the support of the judges of the United States. I do not add the president, because there is now a president of congress, whose expences may not be far, if any thing, short of those which will be incurred on account of the president of the United States. The support of the judges will clearly be an extra expence, but to what extent will depend on the particular plan which may be adopted in practice in regard to this matter. But it can upon no reasonable plan amount to a sum which will be an object of material consequence.

Let us now see what there is to counterballance any extra expences 44 that may attend the establishment of the proposed government. The first thing that 45 presents itself is, that a great part of the business, which now keeps congress sitting through the year, will be transacted by the president. Even the management of foreign negociations will naturally devolve upon him according to general principles concerted with the senate, and subject to their final concurrence. Hence it is evident, that a portion of the year will suffice for the session of both the senate and the house of representatives: We may suppose about a fourth for the latter, and a third or perhaps a half for the former. The extra business of treaties and appointments may give this extra occupation to the senate. From this circumstance we may infer, that until the house of representatives shall be increased greatly beyond its present number, there will be a considerable saving of expence from the difference between the constant session of the present, and the temporary session of the future congress.

But there is another circumstance, of great importance in the view of the economy. The business of the United States has hitherto occupied the state legislatures as well as congress. The latter has made requisitions which the former have had to provide for. Hence it has 46 happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. 47 More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several states amount to two thousand and upwards; which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or a fifth of that number. The congress under the proposed government will do all the business of the United States themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. This difference, in the time of the sessions of the state legislatures, will be all 48 clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expence that may be occasioned by the adoption of the new system.

The result from these observations is, that the sources of additional expence from the establishment of the proposed constitution are much fewer than may have been imagined, that they are counterbalanced by considerable objects of saving, and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the union.

J. and A. McLean, The Federalist , II, 344–57, published on May 28, 1788, numbered 84. In The [New York] Independent Journal: or, the General Advertiser this essay was begun on July 16, continued on July 26, concluded on August 9, and is numbered 83. In New-York Packet it was begun on July 29, continued on August 8. concluded on August 12, and is numbered 84.

1 .  For background to this document, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

2 .  “taken notice of and” omitted in Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends .

3 .  “the” substituted for “this” in Hopkins.

4 .  “persons who in this state oppose the new system” substituted for “opposers of the new system in this state” in Hopkins.

5 .  “while they” substituted for “who” in Hopkins.

6 .  “our particular” substituted for “its” in Hopkins.

7 .  “in it” omitted in Hopkins.

8 .  “offered” substituted for “proposed” in Hopkins.

9 .  “and republicanism” omitted in Hopkins.

10 .  The reference is to Sir William Blackstone’s Commentaries on the Laws of England , ten editions of which had appeared by 1787.

11 .  Ibid. The correct page reference is “421” instead of “438.”

12 .  “to limit” substituted for “as limitations of” in Hopkins.

13 .  “succeeding” substituted for “subsequent” in Hopkins.

14 .  “This” substituted for “Here” in Hopkins.

15 .  “one” substituted for “a constitution” in Hopkins.

16 .  “to the extent” substituted for “in the extent in which” in Hopkins.

17 .  “and” omitted in Hopkins.

18 .  “provided for” substituted for “to be found” in Hopkins.

19 .  “which are” omitted in Hopkins.

20 .  “which has been made and” omitted in Hopkins.

21 .  “may” substituted for “it is to” in Hopkins.

22 .  “any distant” substituted for “Montgomery” in Hopkins. Montgomery was New York’s largest and westernmost county in 1788.

23 .  “deliberations” substituted for “deliberation” in Hopkins.

24 .  This sentence omitted in Hopkins.

25 .  “like” substituted for “same” in Hopkins.

26 .  “curious” substituted for “extraordinary” in Hopkins.

27 .  “one” omitted in Hopkins.

28 .  “and” omitted in Hopkins.

29 .  “and is” omitted in Hopkins.

30 .  See essay 43.

31 .  Thomas Rutherforth (Rutherford), Institutes of Natural Law: Being the Substance of a Course of Lectures on Grotius de Jure Belli et Pacis … 2 Vols. (Cambridge, 1754–1756).

32 .  The reference is to Grotius, Law of Nature and Nations . The complete title, as taken from the edition of 1646, reads: Hugo Grotius on the Law of War and Peace. Three Books. Wherein are set forth the law of nature and of nations. Also the principles of public law … (Amsterdam, Johan Blaeu, 1646).

Book II, Ch. IX, Section viii is entitled “such rights [i.e., the rights of the people] are not extinguished by a change of government; and herein also the question of what is due to a new king or to a liberated people is treated.” Section ix is entitled “What becomes of such rights if people are joined together.”

33 .  “which I” omitted in Hopkins.

34 .  “recollected” substituted for “recollect” in Hopkins.

35 .  “is” substituted for “must be” in Hopkins.

36 .  “which is” omitted in Hopkins.

37 .  “progress” substituted for “increase” in Hopkins.

38 .  “indicated” substituted for “pointed out” in Hopkins.

39 .  “under” omitted in Hopkins.

40 .  “officers” omitted in Hopkins.

41 .  “those appointed” omitted in Hopkins.

42 .  This sentence omitted in Hopkins.

43 .  “to us” omitted in Hopkins.

44 .  “expense” substituted for “expences” in Hopkins.

45 .  “which” substituted for “that” in Hopkins.

46 .  “It has thence” substituted for “thence it has” in Hopkins.

47 .  “Of the states” omitted in Hopkins.

48 .  “all” omitted in Hopkins.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

*   Vide Blackstone’s Commentaries, vol. I, page 136. 10

†   Idem, vol. 4, page 438. 11

*   To show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it could be maintained that the declarations in the state constitutions, in favour of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abrigement of the liberty of the press. We know that newspapers are taxed in Great-Britain, and yet it is notorious that the press no where enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all, general declarations respecting the liberty of the press will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, &c., as that the liberty of the press ought not to be restrained.

*   Vide Rutherford’s Institutes, vol. 2. book 11. chap. x. sec. xiv, and xv. 31 —Vide also Grotius, book II, chap. ix, sect. viii, and ix. 32

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The Federalist Papers

By alexander hamilton , james madison , john jay, the federalist papers summary and analysis of essay 84.

Hamilton begins the penultimate Federalist paper by acknowledging that there are some objections to the Constitution that have not yet been discussed. The most important of the remaining objections is that the Constitution does not contain a bill of rights. It has already been pointed out that several state constitutions do not contain bills of rights, including New York State. Oddly, New York citizens who oppose the federal constitution on the ground that it does into contain a bill of rights have tremendous admiration for their state constitution. These citizens claim that the state constitution does not need a separate bill of rights because the guarantee of individual rights is written into the constitution itself. The same is true of the federal constitution.

As was previously shown, many safeguards against the abuse of power are built into the structure of the national government, such as the separation of powers and checks and balances. In this paper, Hamilton contends that he will examine six provisions designed to protect individual liberties. First, to protect the people against executive and judicial abuse of power, the Constitution provides the power to impeach. Second, the writ of habeas corpus (the right of a person arrested to imprisoned to be informed of the charges against him) shall not be suspended, "unless, when in cases of rebellion or invasion the public safety may require it." Next, Bills of attainder and ex-post-facto laws are prohibited. The great English jurist, Blackstone, believed that prohibiting these types of laws were the two most fundamental individual rights. Fourth, the Constitution states "no title of nobility should be granted by the United States." Hamilton writes that the importance of prohibiting titles of nobility is paramount; if such titles were granted, the very foundation of republican government would be undermined. Fifth, the Constitution guarantees the right to trial by jury in all criminal cases and sixth, treason is very carefully defined in the Constitution. The Constitution supports the distinction between political dissent and treason, it does all it can to prevent working a hardship on the traitor's family.

Originally, bills of rights were agreements between kings and their subjects concerning the rights of the people. Kings limited their own power, either under pressure or voluntarily, acknowledging that they were not all-powerful. The best example is the Magna Carta, the charter of English liberties that the barons forcibly obtained from King John in 1215. But one must remember that the proposed Constitution has no force unless the people approve it; there is no need to grant them specific rights. The Preamble of the Constitution is a better recognition of popular rights than all the bills of rights put together. The Constitution is concerned with general political interest and rights, not with specific and minute details of every right. Hamilton argues that a bill of rights would not only be unnecessary, but dangerous. A bill of rights would, for instance, attempt to limit certain governmental powers which are not even granted.

Another objection to the Constitution is that the national government will be so far away from the states and the people that the latter will be ignorant of what is going on. The counties in opposition to state governments can make the same argument. There are ways of knowing what the state governments are up to, just as there are ways of knowing what is happening in the nation's capitol; we can evaluate the laws that are passed, correspond with our representatives, read newspaper reports, etc. If this were not so, there would be no division of governmental power whatsoever in a republican form of government. Not only will the people be able to take stock of the national government, the states will act as sentinels or guards; they will keep a watchful eye over all the branches of the national government. This is so because the state and national governments will be rivals for power. Actually, the people will be more fully informed concerning the conduct of their national representative than they are, at present, of the state representatives.

There are many curious and extraordinary objections to the Constitution, but one of the strangest, this paper suggests, has to do with debts owed by the states to the United States. Some people have gone so far as to suggest that the Constitution removes the obligations of the states to pay their debts. This claim is ridiculous. Last, there has been an objection concerning the expense of the proposed government. When we consider that most Americans are convinced that Union is vital to their political happiness, that is cannot be preserved under the present system, that new and broad powers ought to be granted to the national government, the question of added dispense seems superficial. Good government is far too important to allow expense to interfere. Undeniably, there will be some added expense, but there will be some savings as well. All in all, Hamilton believes that this is an extremely weak argument.

It is extremely interesting and telling that Hamilton wrote this essay, not Madison, and shows the internal inconsistencies between the two authors. While Alexander Hamilton writes in this essay of the lack of a need for a Bill of Rights and argues not that the Constitution will eventually have the ideals that Americans presently feel our fundamental, but instead, that they are unnecessary and would actually be hurtful to the Constitution. That his coauthor was James Madison , considered the father of the Bill of Rights, is an ironic twist of fate and if Madison and not Hamilton had written this segment of the Federalist Papers, it would have been far different.

This paper also shows something on the nature of government that Hamilton desired. Free government being an ideal, Hamilton concedes that the plan of the convention is a compound as much as the errors and prejudices, as of the sense and wisdom, of the delegates, a compromise of many dissimilar interest and inclinations. It has not claim to absolute perfection. Not expecting "to see a perfect work from imperfect man," (Federalist 85), Hamilton has praise for the Constitution. The system it establishes, "thought it may not be perfect in every part, is, on the whole, a good one; it is the best that present views ad circumstances of the country will permit."

The entire change that was effected by the Constitution consists in the creation of the Union. Not being ratified, as were the Articles, merely by the "several legislatures," but "by the PEOPLE" of America, irrespective of state boundaries, the Constitution transforms a league under international law into a nation. More specifically, the radial alterations of the Articles of Confederation mean to Hamilton the grant of "new and extensive powers . . . to the national head, and . . . a different organization of the federal government ­ a single body being an unsafe depository of such ample authorities." The Constitution, while concentrating power in the federal head as a remedy against democratic tyranny in the states, diminishes the probability of too much democracy on the national level by taking power away from Congress. The achievement of free government in the Constitution thus boils down to a restriction of popular government in favor of the protection of the individual's rights. It is brought about mainly by two factors: the creation of a stronger national government and the dethronement of an all-powerful legislature.

The Federalist Papers Questions and Answers

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how are conflictstoo often decided in unstable government? Whose rights are denied when this happens?

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Federalist 84

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Introduction

This is the second longest essay in The Federalist, a collection of newspaper essays by Publius (Alexander Hamilton, James Madison and John Jay; Hamilton wrote number 84) published in New York City to support adoption of the Constitution. It summarizes Federalist arguments that the proposed Constitution does not need a bill of rights. The ratification campaign was basically over. The Constitution had been ratified and a promise to consider a bill of rights had been agreed to. Nevertheless, Publius refused to recognize this political reality and virtually repeated James Wilson’s State House Speech made at the beginning of the campaign (“ State House Speech” (1787)). Wilson’s speech and Federalist 84 provide bookends to the argument as to why a bill of rights is unnecessary and even dangerous. Madison in Virginia and Hamilton in New York  (17, 18 )agreed to the Constitution’s adoption on the hope of a friendly revision of the Constitution in the First Congress.

Source: The Federalist: The Gideon Edition , eds. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), 442–451.

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There however remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. I add that New York is of the number. And yet the persons who in this state oppose the new system, while they profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter they allege two things: one is that though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights which, in substance, amount to the same thing; the other is that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed, are equally secured.

To the first I answer that the Constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7—“Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2—“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3—“No bill of attainder or ex post facto law shall be passed.” Clause 7—“No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article III, section 2, clause 3—“The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3 of the same article—“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section—“The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

It may well be a question whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this state. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of titles of nobility, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, [1 ] in reference to the latter, are well worthy of recital: “To bereave a man of life [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the bulwark of the British Constitution.”

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the cornerstone of republican government for so long as they are excluded there can never be serious danger that the government will be any other than that of the people.

To the second, that is, to the pretended establishment of the common and statute law by the Constitution, I answer that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, [2] obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the Petition of the Right assented to by Charles the First in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” [3] Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this state; in the next, I contend that whatever has been said about it in that of any other state amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each state is its bill of rights. In like manner, the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security which are not to be found in any of the state constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to in a variety of cases in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens if they are to be found in any part of the instrument which establishes the government. Whence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. . . .

• 1. William Blackstone (1723–1780), an English jurist, wrote an influential commentary on the laws of England.
• 3. Publius paraphrases the preamble to the Constitution.

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• The Federalist

Alexander Hamilton, James Madison, and John Jay

• Literature Notes
• Federalist No. 84 (Hamilton)
• About The Federalist
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• Section I: General Introduction: Federalist No. 2 (John Jay)
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• Section I: General Introduction: Federalist No. 6 (Hamilton)
• Section I: General Introduction: Federalist No. 7 (Hamilton)
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• Section II: Advantages of Union: Federalist No. 10 (James Madison)
• Section II: Advantages of Union: Federalist No. 11 (Hamilton)
• Section II: Advantages of Union: Federalist No. 12 (Hamilton)
• Section II: Advantages of Union: Federalist No. 13 (Hamilton)
• Section II: Advantages of Union: Federalist No. 14 (Madison)
• Section III: Disadvantages of Existing Government: Federalist No. 15 (Hamilton)
• Section III: Disadvantages of Existing Government: Federalists No. 16-20 (Madison and Hamilton)
• Section III: Disadvantages of Existing Government: Federalist No. 21 (Hamilton)
• Section III: Disadvantages of Existing Government: Federalist No. 22 (Hamilton)
• Section IV: Common Defense: Federalists No. 23-29 (Hamilton)
• Section V: Powers of Taxation: Federalists No. 30-36 (Hamilton)
• Section VI: Difficulties in Framing Constitution: Federalists No. 37-40 (Madison)
• Section VII: General Powers: Federalists No. 41-46 (Madison)
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• Section XI: Need for a Strong Executive: Federalists No. 75-77 (Hamilton)
• Section XII: Judiciary: Federalist No. 78 (Hamilton)
• Section XII: Judiciary: Federalist No. 79 (Hamilton)
• Section XII: Judiciary: Federalist No. 80 (Hamilton)
• Section XII: Judiciary: Federalist No. 81 (Hamilton)
• Section XII: Judiciary: Federalist No. 82 (Hamilton)
• Section XII: Judiciary: Federalist No. 83 (Hamilton)
• Section XIII: Conclusions: Federalist No. 84 (Hamilton)
• Section XIII: Conclusions: Federalist No. 85 (Hamilton)
• About the Authors
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Summary and Analysis Section XIII: Conclusions: Federalist No. 84 (Hamilton)

The two chapters in this section pick up, and in places extend, the arguments made before. Nothing materially new is added in these chapters. For obvious reasons, summary and commentary have been combined here.

This essay first takes up the objection that the proposed constitution contained no Bill of Rights. To this Hamilton replied that the constitutions of many states (including his own, New York) contained no specific bill of rights.

Hamilton then proceeded to beg the question by citing what rights were guaranteed under the Constitution — judgment in impeachment cases should not involve more than removal from office; all trials, except in cases of impeachment, would be held by jury; the writ of habeas corpus was not to be suspended except in cases of invasion or insurrection where public safety required it; no titles of nobility were to be granted. "Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the comer stone of republican government" said Hamilton.

As an argument, this was ridiculous and divertive. What average Americans wanted to know was what constitutional guarantees they would have to enjoy freedom of religion, liberty of the press, freedom of speech, the right of people to assemble peaceably and to petition the government for redress of grievances, the right of individuals to keep and bear arms, the right of all people "to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." These rights were soon stated concretely, and adopted as the first ten amendments to the Constitution.

To his credit, let it be said, Madison promised that, if elected to the new Congress, he would use his every effort to see that, as a first order of business, a Bill of Rights was appended to the Constitution, and he carried out his pledge. As noted earlier, it was Madison who largely drafted the amendments and did the political engineering that brought about their adoption.

As for Hamilton, he stated explicitly in this essay that a Bill of Rights was not only unnecessary in the proposed constitution, "but would even be dangerous" — another reflection of his deep-grained antidemocratic attitudes.

The essay next replied to the objection (a minor one) that the seat of the national government, wherever placed, would be far from many parts of the country and the people there would have difficulty in keeping track of what was going on. Well, said Hamilton, if there was to be a national capital, it had to be located somewhere, and the people in more distant parts had ample means of communication and sources of information to enable them to check up on what their representatives were doing in the capital.

On another point, it was being argued that the establishment of a national government would entail additional expense and higher taxes. This would not be so, at least not in the beginning. The national government would take over the expense of performing functions and maintaining offices that the states were already supporting by requisitions made upon them under the Articles of Confederation. It would be merely a change of paymasters entailing no additional expense except in one respect. Support of the proposed new national judicial system would entail a small extra expense, but it was well worth it.

Previous Federalist No. 83 (Hamilton)

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The Federalist Papers, #84, 1788

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The Federalist Papers were written by supporters of the United States Constitution. The Constitution had been drafted and approved by the Constitutional Convention during the summer of 1787. The final step to make the document the supreme law of the land was for nine of the 13 states to ratify it. Alexander Hamilton, James Madison and John Jay wrote a series of essays that were printed anonymously in newspapers to persuade Americans to support ratification.

Transcript of "The Federalist Papers, #84," 1788

Transcribed Excerpts from "The Federalist Papers, #84," 1788

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• What, according to Hamilton, is the objection to the Constitution? How does Hamilton respond to that objection?
• What is Hamilton’s claim to support his position that there does not need to be a Bill of Rights? Does Hamilton convince you? Explain.

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The Federalist Papers by Alexander Hamilton, John Jay, and James Madison. 1787-1788.

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Federalist No. 84

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IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

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Hamilton, A., Madison, J., Jay, J. (2009). Federalist No. 84. In: The Federalist Papers. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230102019_53

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The Federalist No. 84

Four General Topics, Including Why No Bill of Rights

Summary (not in original)

This penultimate paper takes up four issues.  The absence of a Bill of Rights is defended on grounds that the Constitution contains the crucial rights in its body or is itself a declaration of citizen rights, enforced through self-regulation and limitations; any additional limitations would arrogate to the federal establishment powers not granted it by the Constitution itself, hence would abrogate the principal of enumerated powers.  The putative remoteness of the federal government will not confound popular knowledge, for such knowledge will be available in the same forms serving state governments, and state governments acting in natural sentinel capacities will ensure information access to federal operations to an extent likely greater than they are willing to divulge on their own.  The Constitution will not dissolve state debts; it is an accepted rule that states neither lose their rights nor discharge their debts by a change in form.  Finally, expenses of the new government will likely increase, but with compensatory reductions elsewhere, and in some ways the total of federal and state government will be more efficient than the government under the articles, minimizing the added costs.

Independent Journal Wednesday, July 16, Saturday, July 26, Saturday, August 9, 1788 Alexander Hamilton

To the People of the State of New York:

Certain issues remain, but time and previous length suggest brevity.

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

On Bill of Rights: Neither the proposed Constitution nor the New York constitution contain one.  Some urge that the New York constitution contains rights within the body of it text, and it adopts English common law which carries its own list of rights.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

The proposed Constitution also contains rights: impeachment of officers, habeas corpus, no bill of attainder, no ex post facto laws, no title of nobility, trial by jury for criminal trials, limitations on treason (he omits republican form guaranteed to states)

To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 — “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2 — “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3 — “No bill of attainder or ex-post-facto law shall be passed.” Clause 7 — “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3 — “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3, of the same article — “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section — “The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

These are arguably more important rights than in the New York constitution, habeas corpus given by Blackstone as a core right against government oppression.

It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatic in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution.”[2]

Prohibiting titles of nobility is a cornerstone of republican government.

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

The state adherence to common law is a convenience, specifically subject to alterations by the legislature, and hence cannot count as constitutional guarantees of any specific right.

To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

Right from Magna Carta onward have been an exchange of prerogatives for privilege, deals made as it were, none sanctified by a constitution founded on the power of the people.  Thus the people surrender nothing in the present constitution.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

A minute recitation of rights is inappropriate in the federal constitution, intended to regulate the general political interests of the nation, rather than every species of personal and private concerns.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

Furthermore, a bill of rights would be dangerous, implying powers not enumerated in the Constitution’s grant, which intimation would give rise to specious powers.  The federal authority has no power over the press; to deny it this power formally gives rise to its existence and likely abuse.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On liberty of the press: not a word of it in the New York constitution, and whatever words appear elsewhere suffer enough inevitable ambiguity that almost any evasion is possible.  The only practical limit on the press is the people.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.[3] And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

Finally, the Constitution as a form of limitations and definition of powers relative to the people constitutes a bill of rights; any claim that the Constitution contains no bill of rights is specious.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

On the Remoteness of the Federal Government: if this government is too remote for proper knowledge of its workings, so must be any federal government.  But the problem is no problem; understanding state governments requires indirect resources such as newspapers and legal reports, the same of which will be as available for federal operations.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper [say the objectors] to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body.” This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely entrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

The natural behavior of states will enhance and accelerate public access to federal behavior, making it more accessible than state behavior, which has no such internal sentinel.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.

Note as well that those living proximate to the capital will share interests with those remote, and sound the alarm when the alarm needs sounding.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

On the Debt Owed the National Government: it is a matter of doctrine of political law that a change in the form of civil government affects neither rights nor obligations of the states.

Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that “States neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government.”[4]

On Increases in Federal Expenses:

The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.

A strong union is in general agreement.  Its size will no doubt grow with the population.  But its original size seems comparable to the present arrangement.  The number of official delegates is basically the same.

The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government — a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.

The number of executive and foreign officers is roughly the same except revenue officers, who will most likely just replace state revenue officers charges with the same task under the Articles.

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.

The judiciary of course will add expense, but it cannot be insuperable.

Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.

On the other side, the President will assume many of the present duties of the congress, shrinking the time of sitting and its correlative cost.

Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.

Furthermore, many other responsibilities will transfer from state to the federal authority, relieving expenses for state governments considerably.

But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.

The exact figures of course depend upon what materializes, but increases will be modest and possible compensated elsewhere, but any formal limitation of expenses which imply reduction are completely inconsistent with the purposes of the union.

The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.

1. Vide Blackstone’s Commentaries, Vol. 1, p. 136.

2. Idem, Vol. 4, p. 438.

3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.

4. Vide Rutherford’s Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and IX.

Federalist Papers

• Introduction
• On Union, Factions, Size of Country
• On the Infirmities of the Articles of Confederation
• On the Necessity of Energy in the Federal Government
• On the Republican Form
• The House of Representatives
• The Executive Branch
• The Judiciary
• Concluding Essays

The American Founding

The Federalist Papers: An Essay-by-summary

Federalist 1: The Challenge and the Outline

Hamilton says Americans have the opportunity and obligation to “decide the important question” can “good government” be established by “reflection and choice,” or is mankind “forever destined to depend for their political constitutions on accident and force.”  

To assist “our deliberations,” he provides an outline of topics to be covered “in a series of papers.” 1) “The utility of the union,” 2) the “insufficiency” of the Articles of Confederation, 3) the minimum “energetic” government requirement, 4) “the true principles of republican government,” 5) the analogy of the proposed Constitution to the State governments, 6) and the added security “to republican government, to liberty, and to property” provided by the proposed Constitution. He concludes this essay on the “momentous decision”:  adopt the Constitution or dismember the Union.

To read the entire essay, click here.

Part II Federalist 2-14:  “The Utility of the Union”

Federalist 2.

Jay urges, in the first of four essays, “calm and mature inquiries and reflections” as well as “cool, uninterrupted, and daily consultation.” He supports “sedate and candid consideration” of the Constitution, the product of the “mature deliberation” that took place in the summer of 1787.  He favors the common ties of the Union and rejects the “novel idea” of seeking “safety and happiness” in three or four separate Confederacies.

Federalist 3

Domestic tranquillity and common defense, says Jay, are better served under one “cordial union” directed by “temperate and cool” policies, in accordance with the “wisdom and prudence” of one well-administered government, than under three or four confederacies.

Federalist 4

One government, continues Jay, efficiently run and well administered, discourages foreigners from invading. One good national government will attract competent people.  

Federalist 5

One government, Jay reiterates, discourages internal division and convulsion, as well as dangers from abroad.  He invites the reader to compare England, Scotland, and Wales united—formidable together– and disunited—formidable against each other.

Federalist 6

Hamilton argues that ambition, rage, jealousy, envy, and vicinity are the five causes of war and faction. Such is human nature: “momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice.”  Reject the “visionary” notions of “perpetual peace,” and that separate “commercial republics” are “pacific and well mannered.” 

Federalist 7

Hamilton argues that disunited, we will be drawn into European politics and Europe will be drawn into American politics.  There will be the usual territorial and commercial disputes if separated.  We won’t remain united under the Articles of Confederation.

Federalist 8

Hamilton details the consequences of being disunited, including the presence of vast standing armies at the borders of each State.  A united America, like the United Kingdom, will bring us the “safety from external danger …[which]…is the most powerful director of national conduct,” rather than the disunited and hostile states of Europe.

Federalist 9

Hamilton’s five improvements in “the science of politics” were “either not known at all, or imperfectly understood by the ancients.” They form the “broad and solid” foundation for the claim that America will succeed where previous regimes have failed.  The improvements are 1) legislative checks and balances, 2) the separation of powers, 3) an independent judiciary, 4) a scheme of representation, 5) “the enlargement of the orbit.” 

He suggests that concerning 5) it is not clear that Montesquieu has a definitive and relevant teaching on enlarging the orbit through federal arrangements. His distinctions seem “more subtle than accurate.” And he chooses the Lycian Confederacy as his favorite where there is no equality of suffrage among the members and no sharp line protecting “internal administration.” Anyway, our States are larger than the small republics he had in mind.  Thus, we need to move beyond the “oracle” Montesquieu’s understanding of federalism as a way of a) retaining the independence of small states deemed traditionally necessary for liberty and happiness yet b) joining such pre-existing entities together so that they can pool their resources for such limited goals as common defence.  We need a new and American understanding of “the enlargement of the orbit.” 

Federalist 10

This is the first essay by Madison in The Federalist. It contains twenty-three paragraphs.

β 1. The “violence of faction” is the “mortal disease” of popular governments. The public assemblies have been infected with the vice of majority tyranny: “measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and overbearing majority.”

β 2.  What is a faction?  “A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

β  3. How can we cure “the mischiefs of faction?” We can either cure it by I) “removing its causes,” or II) “controlling its effects.” 

β  4. There are “two methods of removing the causes of faction”: I a) destroy “the liberty essential to its existence,” or I b) give “to every citizen the same opinions, the same passions, and the same interests.” 

β  5. I a) is a “remedy that is worse than the disease,” because it is “unwise.” It entails the abolition of liberty, “which is essential to political life.” 

β  6. I b) is “impracticable.” Opinions, passions, and interests are unlikely to be in harmony. “The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.” And that leads to “the division of society into different interests and parties.” 

β  7.  Further consideration of I b).  “The latent causes of faction are thus sown in the nature of man.”  Thus, there are many sources of factions, “but the most common and durable source of factions has been the various and unequal distribution of property.”  The “regulation of these various and interfering interests,” that “grow up of necessity in civilized nations…forms the principal task of modern legislation and forms the spirit of party and faction in the necessary and ordinary operations of government.” 

β  8.  Further consideration of I b). Legislators, alas, tend to be “advocates and parties to the causes which they determine.” But “justice and the public good,” require “impartiality.” 

β  9.  Further consideration of I b).  “It is vain to say that enlightened statesmen will be able to adjust these clashing interests and render all subservient to the public good.  Enlightened statesmen will not always be at the helm.” 

β  10. Conclusion to I b) and the introduction to II.  “The inference to which we are brought is that [I] the causes of faction cannot be removed and that relief is only to be sought in the means of [II] controlling its effects .”

β  11. Further consideration of II) “controlling its effects.”  “The republican principle” of majority rule is the solution to minority faction.  But what if we have majority faction?  “To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great desideratum by which this form of government can be rescued from the opprobrium under which it has labored and be recommended to the esteem and adoption of mankind.” 

β  12.  The introduction of II a) and II b) as the solutions to majority faction. “Either [II a)] the existence of the same passion or interest in a majority at the same time must be prevented, or [II b)] the majority having such coexistent passion or interest, must be rendered by their number and local situation, unable to concert and carry into effect schemes of oppression.” 

β  13. The introduction of III, the form of government, to implement the solution.  Madison declares that III a) “pure democracy,” works against solutions II a) and II b.

β 14.  III b) “a republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.”  

β  15. “The two great points of difference between a democracy and a republic.” 

β  16.  The first difference III b)* is “to refine and enlarge the public views” by way of the election system.  The question is do we choose “small (IVa) or extensive (IVb) republics?” 

β  17. IV b) is better than IV a) because it provides “a greater probability of a fit choice” of representatives.

β  18. IV b) is better than IV a) because it “will be more difficult for unworthy candidates to practice the vicious arts by which elections are too often carried.” 

β  19. The Constitution “forms a happy combination” of IVa) and IVb): “the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

β  20. The second difference III b)** “is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government.” 

β  21. III b)** clinches the case for IV b) over IV a).

β  22. “The influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States.”

β  23.  “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.” 

Federalist 11

 “A unity of commercial, as well as political, interests can only result from a unity of government.” There is another advantage to union: “it belongs to us to vindicate the honor of the human race,” in Africa, Asia, and America.  With a strong union, we can restrain “the arrogant pretensions of the Europeans,” and “dictate the terms of the connection between the old and the new world.” They think, “dogs cease to bark in America.” 

Federalist 12

Agriculture, as well as commerce, will benefit from a strong union.  And experience shows that the interests of both are the same.  Besides, taxing agriculture and commerce is where government revenue comes from.  We need to union if we want government revenue.

Federalist 13

Through economies of scale, it is cheaper to run one government than it is to run thirteen governments or three confederacies.

Federalist 14

Madison concludes this section on “the necessity of the Union,” with a response to the Antifederalist critique that “the great extent of country which the Union embraces” exceeds “the practicable sphere of republican administration.”  Madison offers six arguments. 1) The American experiment rests on a) discovering the distinction between a republic and a democracy. This distinction—“the principle of representation” replaces the people meeting and governing on the spot—was unknown to the ancient world, and b) making “the discovery the basis of unmixed and extensive republics.” Thus “the natural limit of a republic” has been extended far beyond what was ever previously envisioned.  2) the general government “is limited to certain enumerated objects, which concern all the members of the republic.” 3) “intercourse throughout the Union will be facilitated by new improvements…[in]…communication.” 4) “Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world.” 5) The greatness of the people of America is that “they have not suffered a blind veneration for the past….To this manly spirit posterity will be indebted.” 6) Let us “deliberate and decide” whether to adopt “a new and more noble course,” namely, “the experiment of an extended republic.”  

Part III Federalist 15-22:  The “Insufficiency” of the Articles of Confederation

Federalist 15.

There is a “great and radical vice in the construction of the existing confederacy,” says Hamilton.  The structural “defect” of the confederacy is that it is a union of, by, for, and over states and not a government based on individuals.  “The great and radical vice in the construction of 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.”

He then asks the central question undergirding all the essays:  “why has government been instituted at all?”  The answer is:  “because the passions of men will not conform to the dictates of reason and justice without constraint.” Applied to the Articles, this answer suggests that “the ill-informed and prejudicial interference of particular administrators” in national issues ought to be of far greater concern than the other way around.

Federalist 16

The traditional federal principle—legislation over states in their collective political capacity–is anarchistic because it does not “address itself immediately to the hopes and fears of individuals.”  The laws of a Confederacy can only be enforced by a large standing army.  Thus we must adopt the principle of government over individuals for the people ought to be “the natural guardians of the Constitution.”  Hamilton introduces a brief introduction of judicial review and state nullification.

Federalist 17

Hamilton raises a question:  won’t the federal government be so powerful that it will encroach on the States?  No, The real problem is centrifugal and not centripetal.  The States have “a greater degree of influence” in every day matters such as the “ordinary administration of criminal and civil justice” and they are physically closer to the people. “Affections are weak in proportion to distance or diffusiveness of the object.” The objects of the federal government are limited to commerce, finance, negotiation, and war.  In the end, however, the people will throw their loyalty to the level of government that “administer their affairs with uprightness and prudence.”

Federalist 18

The first example of the traditional federal “disease” of anarchism: Greece.

Federalist 19

The second example of the traditional federal “disease” of anarchism:  Germanic.

Federalist 20

The third example of the traditional federal “disease” of anarchism:  Netherlands.

Federalist 21

Three initial “defects” of the Articles of Confederation are examined: 1) all powers of Congress are expressly delegated, 2) no guarantee for state governments and 3) quotas of contribution for raising revenue.

Federalist 22

Five additional “defects” of the Articles of Confederation are examined: 4) no power to regulate interstate commerce, 5) inadequate power to raise troops, 6) the equal representation of states, 7) no judiciary, and 8) inadequate method of ratification. 

Part IV Federalist 23-36: The minimum “energetic” government requirement

Federalist 23.

Hamilton announces the start of several essays dealing with three topics: “the objects to be provided for by a federal government, the quantity of power necessary to the accomplishment of those objects, (and) the persons upon whom that power ought to operate.”  He states that the objects of the federal government encompass, 1) common defense, 2) domestic tranquillity, 3) the regulation of commerce, and 4) relations with foreign nations. And he reminds his readers that it is impossible to foresee future “national exigencies.” Thus we need a degree of power—or energy–commensurate to the end in view.  He begins with 1) the war powers of the nation and declares them to be necessary and proper means to accomplishing the object of common defense. He finds the Antifederalist position to be an “absurdity”:  they support enlarged purposes but want limited powers! If it is safe to delegate the “object,” isn’t it safe to delegate the “power?”

Federalist 24

The object of 1) common defense receives further coverage.  Hamilton critiques, with the help of the observations a fictitious “stranger to our politics,” the objection to the presence of standing armies in time of peace. We live in a hostile world, says Hamilton. Anyway, the power over military establishments is lodged in Congress. The two-year appropriation process, he asserts, is the appropriate protection against the abuse of military power and the creation of “unnecessary military establishments.” He takes the opportunity to note that the Antifederalists have “misled” the electorate by exaggerating the presence of “bills of rights” that are “annexed” to State constitutions. 

Federalist 25

Further coverage of 1) common defense.  Why wait until a formal declaration of war, asks Hamilton, prior to initiating the raising of an army? Anyway, “the formal ceremony of declaring war has fallen into disuse.”  That “we must receive the blow before we could even prepare to return it,” is a “most extraordinary spectacle.” We ought to be “cautious about fettering the government with restrictions that cannot be observed” because “necessity” will prevail over a “parchment barrier.” If a breach, justified by necessity, becomes the norm, it will impair “the sacred reverence” for the “fundamental laws” 

Federalist 26

Further coverage of 1) common defense.  An additional defense of the two-year appropriation process as a check on the abuse of a standing army.  Don’t tie down the legislature with parchment barriers on the means for providing for the common defense. To accept the end, but restrain the means, is to display “a zeal for liberty more ardent than enlightened.”

Federalist 27

Coverage turns to 2) domestic tranquillity by way of 1) common defense.  Hamilton responds to the claim that the Constitution “cannot operate without the aid of a military force to execute its laws.” He lays down “a general rule…of confidence in and obedience to a government.”  The people will support government in “proportion to the goodness or badness of its administration.” He expects the American people will become more and more attached to the general government as it intermingles more in their daily lives.

Federalist 28

Further coverage of 2) domestic tranquillity. Hamilton repeats his maxim “that the means to be employed must be proportioned to the extent of the mischief.” Of course, the rule of law is generally the “admissible principle of republican government.” But there will be emergencies involving domestic insurrection and the general government may have to use force. This conforms to “that original right of self-defense which is paramount to all positive forms of government.” To think otherwise, is to engage in “the reveries” of naïve “political doctors.” But what if the general government or State governments abuse their power?  There are two lines of defense: 1) “the great extent of the country,” and 2) “the people, by throwing themselves into either scale, will infallibly make it preponderate.” 

Federalist 29

Further coverage of 2) domestic tranquillity. Hamilton argues for the existence of a well-regulated militia under the control of the general government.  He accuses the Antifederalists of “a striking incoherence:” they want neither a militia nor an army!  Is this “the inflammatory ravings if chagrined incendiaries or distempered enthusiasts?”

Federalist 30

Hamilton turns to 3) the regulation of commerce.  Once again he states the maxim that “every power ought to be proportionate to its object.” This time, he applies it to taxation: “money is, with propriety, considered the vital principle of the body politic.” He rejects the opposition proposal that the power of internal taxation be given to the States and the power of external taxation be given to the nation. This is romantic poetry.

Federalist 31

Further coverage of 3) the regulation of commerce. He repeats his point that the general government should not be excluded ahead of time from exercising certain means of raising revenue since the world is full of contingency. Moreover, there are certain “maxims in politics”—“first principles,” or “primary truths”– governing the relationship between ends or objects on the one hand and means or powers on the other hand: the government must be given the “requisite” means for the “complete execution” of the objects “for which it is responsible.” But, say the opposition, the States don’t have a guaranteed source of revenue and won’t be able to protect themselves from the usurpations by general government.  More “enchanted castle,” nonsense replies Hamilton.  We should leave the preservation of the “constitutional equilibrium” between the two levels of government “to the prudence and firmness of the people.” 

Federalist 32

Further coverage of 3) the regulation of commerce.  Hamilton reminds the reader that the Constitution is a “partial consolidation” rather than “an entire consolidation.”  Accordingly, he employs the three-pronged “negative pregnant” test to grasp “the whole tenor of the instrument which contains the articles of the proposed constitution.”  He applies the test to the power of taxation: a) is the power exclusively granted to the union? “No.” b) is the power prohibited to the States? “No.” And c) is the power granted to the union and it makes no sense that the states have concurrent jurisdiction? “No.”  He concludes, therefore, that it was the “sense of the convention,” to permit the states to retain the power of concurrent taxation.

Federalist 33

Further coverage of 3) the regulation of commerce.  Hamilton answers the following Antifederalist claim grounded in “virulent invective and petulant declamation,” namely, that the necessary and proper clause and the supremacy clause will enable the general government to completely take over the power of taxation and thus destroy local government and individual liberty.  Not so; nothing would change if these clauses weren’t even there.  Isn’t the power of taxation given to the general government? All clause 18—the so-called “sweeping clause–is saying is that Congress can “pass all laws necessary and proper to carry it into effect.” Why, then, was “the clause introduced?”  The Convention saw this “tautology” as a precautionary protection of the general government against later attempts “to curtail and evade the legitimate authorities of the Union.”   Anyway, in the end, it is the people of America who will decide the meaning of necessary and proper. And without the supremacy clause, the arrangement would be a mere treaty.

Federalist 34

Further coverage of 3) the regulation of commerce. Hamilton repeats his claim that when thinking about the expenses of government we ought not to tie the hands of the general government. “If we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce.”  Accordingly, we must be aware of “future contingencies,” in designing a Constitution that is to last into “remote futurity.” In framing a Constitution, as distinguished from writing legislation, we ought to focus on the future and the permanent rather than the current and temporary scene. 

Federalist 35

Further coverage of 3) the regulation of commerce.  This essay explores the relationship between the power of taxation and the right of representation.  Hamilton criticizes the “frequent objection” of the Antifederalists that the House “is not sufficiently numerous” to provide for a complete and sympathetic representation of the people.  He portrays this argument as  “impracticable” and “unnecessary.” First, “an actual representation of all classes of the people by persons of each class is altogether visionary.” Second, the Congress need not be an exact mirror of the society.  Third, a dependency on the people, and being bound by the very laws he makes, are “the strong chords of sympathy between the representative and the constituent.”  Finally, we need representatives capable of exercising “neutrality” and “impartiality” in the clash between the agricultural and mercantile interests. That is the role of the “learned professions.” 

Federalist 36

Further coverage of 3) “of the regulation of commerce.”  Additional emphasis is given to representation and taxation. If we leave things alone, then merchants, landowners, and the learned professions will be elected to Congress.  They “will truly represent all those different interests and views” across the extended republic. He concludes his coverage of the “energy” essays thus:  “Happy will it be for ourselves, and most honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!”

Part V Federalist 37-51: “The Great Difficulty of Founding”

Federalist 37-40:  the difficulty with demarcations and definitions , federalist 37.

This is the first of fifteen essays written by Madison that provide a window on the “work of the convention.”  He says, “a faultless plan was not to be expected.” The “indistinctness of the object, imperfection of the organ of conception, [and] inadequateness of the vehicle of ideas” each made the founding of the Constitution “a great difficulty.” 1) Humans are fallible, 2) the undertaking was “novel,” 3) “mingling…together” and “defining with certainty,” the “vital principles” of liberty, energy, and stability in the legislature, executive, and judiciary was very difficult, 4) drawing the line between the powers of the general government and the state governments was “no less arduous,” 5) the “imperfection of the human faculties” is clear and so “meaning” must be “liquidated and ascertained by a series of particular discussions and adjudications,” and 6) “contending interests and local jealousies” had to be dealt with.  It is astonishing that “so many difficulties should have been surmounted.” Is this the result of the “finger” of “the Almighty hand” at work?

Federalist 38

The creation of the Constitution faced another difficulty. It is an “experiment.” This is the first in the history of the world to have “been committed to an assembly of men.”  But, instead of acknowledging “the improvement made by America on the ancient mode of preparing and establishing regular plans of government,” the Antifederalists criticize the plan in an incoherent and irrelevant manner and demand perfection.  Yet “are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted?”   

Federalist 39

Madison addresses two questions: does the Constitution pass 1) the republicanism test and 2) the federalism test?  The answer depends on how we define republicanism and federalism.  These are the “great difficulties” of definition.

1) The “genius of the people of America,” and “the fundamental principles of the Revolution,” demand that we “rest all our political experiments on the capacity of mankind for self government.” If the Constitution departs from the “strictly republican” standard, or “character,” it must be rejected.  What, then, is the definition of a republic?  It is “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding office during good behavior.” We learn that a) “it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it,” and b) it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.”  Madison announces that the Constitution passes the test.

2) There are three tests to measure the federalism of the Constitution, the first of which—a) “the real character of the government”—is covered in the remainder of the essay. There are five “considerations” to ponder when dealing with the “real character” standard.  

I) “The foundation on which it is to be established.” Who ratifies the Constitution, the states or the people? II) “The sources from which its ordinary powers are to be drawn.” Are the people or the states represented in the Congress?  III) “The operation of those powers.” Does the government “operate” directly on the people in their “individual capacities” or on the states in “their collective and political capacities?”  IV) “The extent of`… the powers.” Does the general government have “an indefinite supremacy over all persons and things,” or does its jurisdiction extend “to certain enumerated objects only?” V)  “The authority by which future changes in the government are to be introduced.” Are amendments secured by a majority of the people or by the unanimity of the States? 

Madison concludes that it 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 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.” 

Federalist 40

Madison turns to the second and third tests, or difficulties, concerning the “federalism” of the Constitution.  b) Was the convention “authorized to propose such a government?”  Madison’s response is that the delegates were authorized to frame a government “adequate to the exigencies of the Union,” and they performed that task, and c) how far did “considerations of duty arising out of the case itself…supply any defect of regular authority?”   Madison acknowledges that there are some doubts that Congress authorized the delegates to devise a plan that totally overhauled, rather than simply amended, the Articles. So he appeals to the Declaration of Independence: “it is the precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” So the really important question is NOT is the plan legal in the narrow sense of the term, but “whether the advice (of the Convention) be good?”

Federalist 41-46: The Difficulty of Federalism

Federalist 41.

This is the first of six essays on the difficulty of powers and federalism. This difficulty, in turn, can be divided into two parts around the consideration of two questions. The first difficulty of powers and federalism is this: has any unnecessary and improper power been granted to the general government? This is covered in Federalist 41-44. The answer is “no.” (The second difficulty is this: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? This is covered in Federalist 45-46.)  Six “classes” [1-6 below] of the first difficulty of power and federalism in the Constitution are examined. 

Federalist 41 examines the 1) “security against foreign danger” class of power.  Madison reiterates Hamilton’s earlier defense of the Constitution with respect to military establishments, standing armies, the militia, the power of taxation, and the war powers of the general government. 

Federalist 42

This essay examines the second and third classes of federal power: 2) “regulation of the intercourse with foreign nations,” and 3) “maintenance of harmony and proper intercourse among the states.” The former covers the implications of the “interstate commerce” clause. The latter focuses on the remaining clauses in Article I, Section 8.  

Madison regrets that 2) the “power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.” Nevertheless, he is optimistic that the “the barbarism of modern policy” will be soon “totally abolished.” He concludes:  “Happy would it be for the unfortunate Africans if an equal prospect lay before them of being redeemed from the oppressions of their European brethren.”  Concerning 3) Madison laments that “the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”   

Federalist 43

This essay examines the fourth class of federal power: 4) “certain miscellaneous objects of general utility.” Nine miscellaneous clauses are covered.

Most attention is given to the sixth clause, namely, the republican guarantee clause. The main issues here are a) “to defend the system against aristocratic or monarchical innovations,” and b) to protect the principle of majority rule against the actions of a minority of “adventurers.”  Madison then adds:  “I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character and give a superiority of strength to any party with which they may associate themselves.” 

The ninth and last clause covered is Article VII. This clause provides for ratification of the Constitution by nine out of thirteen specially called conventions. Madison asks: how can the Articles be “superseded without the unanimous consent of the parties to it?  The answer, anticipated in Federalist 40, is “the great principle of self-preservation: to the transcendent law of nature and nature’s God, which declares that the safety and happiness of the society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”

Federalist 44

This essay examines the fifth and six classes of federal power: 5) “restraint of the States from certain injurious acts,” and 6) “provisions for giving due efficacy to these powers.” The latter revisits the necessary and proper clause.  “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, as has been elsewhere shown, no part can appear more completely invulnerable.  Without the substance of this power, the whole Constitution would be a dead letter.” He examines, and rejects, the four choices, other than the one stated in Article 1, Section 8, clause 18, that were available to the convention: a) adopt the “expressly” delegated language of the Articles, b) list a “positive enumeration of the powers” attached to the necessary and proper clause, c) list a “negative enumeration” of the powers not attached, and d) remain “altogether silent on the subject, leaving these necessary and proper powers to construction and inference.”  All the clause is saying is that “wherever a general power to do a thing is given, every particular power necessary for doing it is included.”  And if Congress should abuse this power? “The people…can, by the election of more faithful representatives, annul the acts of the usurpers.”  

Federalist 45

This essay starts the consideration of the second difficulty of power and federalism: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? The answer is “no.” 

Federalist 45 begins with the question: was the revolution fought to secure the peace, liberty, safety, and public good of the American people or to secure the sovereignty of the states?  Madison says, the former, and he is willing, if necessary, to sacrifice the states for the “public happiness.” But it will be difficult to do away with the states even if one wanted to because they are “ constituent and essential parts of the federal government.” Besides, “the powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.” Actually, he concludes, the Constitution doesn’t enlarge the powers of the federal government; “it only substitutes a more effectual mode of administering them.” But the federal government will grow in importance during wartime.

Federalist 46

This essay concludes the consideration of the second difficulty of power and federalism: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? The answer, again, is “no.” 

Madison suggests that the federal government has more to fear from the encroachment of the state governments than vice versa. And the state governments are capable of defending themselves. The sentiments of the people are naturally closer to the state governments and things will stay that way unless the federal government is better administered.  In which case, “the people ought not surely to be precluded from giving most of their confidence where they may discover it to be the most due.”  

Federalist 47-51:  The Difficulty of Republicanism

Federalist 47.

This is the first of five essays on the difficulty of republicanism. He is interested in “the structure” of the government.  Madison begins with a “political truth”: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.” The Antifederalists, relying on Montesquieu the “oracle” on the doctrine of separation of powers, claim that the Constitution violates the political truth or maxim, because the branches are not separate and “distinct.” Madison argues 1) that Montesquieu wasn’t advocating a complete “wall of separation” between the branches, but endorsed “ partial agency ,” b) there isn’t a strictly “distinct” separation of powers in the state constitutions and 3) the “political truth” really means that the separation of powers is violated when “the whole power of one department is exercised by the same hands which possess the whole power of another department,” and not when one branch has a partial agency in another branch. In fact, partial agency in practice is needed to accomplish the separation of powers in theory. 

Federalist 48

Madison declares that “the most difficult task” is to provide “some practical” security for each branch against “the invasion of the others.”  The Madison “correction” of “the founders of our early republics,” is this:  Legislative tyranny is far more likely than executive tyranny “in a democracy.” Virginia and Pennsylvania in the 1780s are proof for Madison that their Constitutions actually encourage the emergence of this new kind of tyranny. And, says Madison, Jefferson, in his Notes on the State of Virginia , came to recognize the reality of “ elective despotism ”: “One hundred and seventy-three despots would surely be as oppressive as one.” What “precautions” then shall be taken against this dangerous branch?  More is needed than “a mere demarcation on parchment of the constitutional limits of the several departments.” 

Federalist 49

Madison opens with a critique of Jefferson: he understands the problem, but not the solution. Jefferson proposes that when violations of the separation of powers occur, “a convention shall be called for the purpose” of “ correcting breaches .” But, asks Madison, won’t it be the executive and judiciary appealing to the people to call a convention to restrain the legislature?  And who would most likely be elected to the convention than the very legislators who caused the problem?   “The passions , therefore, not the reason , of the public would sit in judgment.  But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” Even if these conventions are called only for “certain great and extraordinary occasions,” we must remember “that all governments rest on opinion,” and the calling of a correcting convention would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” 

Federalist 50

Madison says the same objections apply to “periodical appeals” as they do to “occasional appeals to the people” to correct infractions of the Constitution.

Federalist 51

This is the last of fifteen essays written by Madison on “the great difficulty” of founding. There are ten paragraphs in the essay.

β 1. The way to implement the theory of separation of powers in practice is to so contrive “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” 

β 2. Accordingly, “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” 

β 3.  “It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.”

β 4. A.“The Great Security”

“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…Ambition must be made to counteract ambition.  The interests of the man must be connected with the constitutional rights of the place.”  

B:  “A Reflection on Human Nature”

Isn’t relying on ambition and interest, “a reflection on human nature?” But, adds Madison, what is government itself but the greatest reflection on human nature?  If men were angels, no government would be necessary.” 

C:  “The Great Difficulty” of Founding

“You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”  

β 5.  “This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” Madison calls this policy “inventions of prudence.”

β 6.  “In republican government, the legislative authority necessarily predominates.” Thus, it is “not possible to give to each department an equal power of self-defense.” Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive a) with the power of a conditional veto and b) “some qualified connection” with the Senate.

β 7. The general government comes closer to passing the “self-defense” of each branch test than do the State governments.

β 8. “There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.” 

β 9.  First, America is a “compound republic,” rather than a “single republic.” This provides for a “double security…to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.” 

β 10. Second, there are only two ways to combat “the evil” of majority faction, a) “by creating a will in the community independent of the majority,” or b) creating an authoritative source “dependent on the society,” but, and here is the essence of the American experiment, the society “will be broken down into so many parts,” that it contain a vast number and variety of interests. 

To repeat, the American society will “be broken down into so many parts, interests and classes of citizens, that the rights of individuals, or the minority, will be in little danger from interested combinations of the majority.”  Echoing Federalist 10, Madison says “the security for civil rights must be the same as that for religious rights.  It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.” And both depend on “the extended republic.”  Let us not forget, adds Madison, that “justice is the end of government.  It is the end of civil society.  It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”  Fortunately, in “the extended republic…a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”  We have rejected the “precarious security” provided by the “hereditary or self-appointed” alternative of “introducing into the government…a will independent of the society itself.”  

Part VI Federalist 52-84: “The True Principles of Republican Government”

Federalist 52-61:  the house of representatives, federalist 52.

Madison introduces the “more particular examination of the several parts of the government,” with ten essays on the House of Representatives. He organizes the treatment around “five views.” 1) “The qualification of electors” is completely covered and 2) the duration in office is partially covered in Federalist 52.  With regard to the former, he says the electoral “door” is wide “open to merit of every description,” regardless of place of birth, “young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.” Concerning the latter, he reminds the reader that “the scheme of representation as a substitute for a meeting of the citizens in person being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples.” 

Federalist 53

Further coverage of 2) duration in office. One of the “instructive examples” derived from the modern understanding of constitutionalism, says Madison, is that we can safely discard the notion “that where annual election end, tyranny begins.”  The only “reason on which this proverbial observation is founded” can be traced to Britain where the Parliament can, and has, “by ordinary power of government…changed the period of election.” But no such security “for the liberty of the people” against “these dangerous practices” is necessary in America because the government is “limited…by the authority of a paramount Constitution.”  Besides which, a two year “unalterably fixed” biennial elections provides more time for representatives to acquire the “practical knowledge…useful to the affairs of the public.” 

Federalist 54

This essay covers 3) “the apportionment of its members.” Madison says that the rule for apportionment is to be the “same rule with that of direct taxes.” There is no inherent reason, he says, why the rule should not be “numbers” for both.  However, property has “recently obtained the general sanction of America” as the rule for direct taxes.  Does it then follow “that slaves ought to be in the numerical rule of representation?”  He lets an unidentified defender of “southern interests” make the case—articulate in quotation marks over four pages–for the modification in “the census of persons” rule for apportionment.  Madison concludes: “it may appear a little strained in some points, yet on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.” 

Federalist 55

This is the first of four essays on 4) “the number of which the House of Representatives is to consist.” The apparently small size of the House, says Madison, has been given extensive attention by the most worthy of the opponents.  He outlines four “charges” concerning the small number:  the House will a) be “an unsafe depository of the public interests,” b) fail to “possess a proper knowledge” of the interests of their constituents, c) be “taken from” the class least sympathetic to the “mass of the people,” and most disposed to sacrifice their interest, and d) the defect in numbers of representatives will become “more disproportionate” as the population increases.  This essay discusses a) and makes the following two points i) “Had every Athenian been a Socrates, every Athenian assembly would still have been a mob,” and ii) there is a decent side to human nature that balances the depraved side. In fact, “republican government presupposes the existence of these [better] qualities in a higher degree than any other form.” 

Federalist 56

This is the second essay on 4) “the number of which the House of Representatives is to consist.”  It addresses the “second charge”:  b) the House “will be too small to possess a due knowledge of the interests of its constituents.” The essay says that the kind of information the representatives need to assist their constituents, echoing Federalist 35 and 53, is knowledge about “commerce, taxation, and the militia,” rather than “particular knowledge of their affairs.” 

Federalist 57

This is the third essay on 4) “the number of which the House of Representatives is to consist.”  It addresses the “third charge”:  c) the chosen representatives will “have least sympathy with the mass of the people,” and be inclined to “sacrifice” the interests of the people.  Madison describes this objection as “extraordinary,” because “the principle of it strikes at the very root of republican government.”  The objective, says Madison, is to elect wise and virtuous representatives and then adopt “precautions” to keep them that way whilst in office.  The primary method of keeping the representatives virtuous is a “habitual recollection of their dependence on the people.” But “human prudence” has “devised” four “cords by which they will be bound to fidelity and sympathy with the great mass of the people”: “duty, gratitude, interest, ambition.” 

Federalist 58

This is the fourth and final essay on 4) “the number of which the House of Representatives is to consist.”  It addresses the “remaining charge”:  “the number of representatives will not be augmented” as the population increases.  Madison admits, “this objection, if well supported, would have great weight.” But, he continues,  “there is a peculiarity in the federal Constitution which insures a watchful attention…to a constitutional augmentation.” The four largest states “will have a majority of the whole votes in the House,” and since they hold the power of the purse, “the most complete and powerful weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure,” these states can defeat “unfriendly” opposition in the Senate. Madison, in conclusion, warns about increasing the size of the House “beyond a certain limit.”  Experience demonstrates “that the countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.”

Federalist 59

This is the first of three essays on 5) “the times, places, and manner” clause.  Hamilton states the case for this clause:  “ every government ought to contain in itself the means of its own preservation .” What if “the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election?”

Federalist 60

This is the second of three essays on 5) “the times, places, and manner” clause.  Couldn’t this clause be manipulated to confine “the places of election to particular districts and rendering it impracticable to the citizens at large to partake in the choice?” This, says Hamilton, is “the most chimerical” of  “all chimerical propositions.”  Hamilton continues: “to speak in the fashionable language of the adversaries of the Constitution,” will this clause “court the elevation of the ‘wealthy and the well-born,’ to the exclusion and debasement of all the rest of the society?” “No,” because of the multiplicity of interests, the separation of powers, and the scheme of representation.

Federalist 61

This is the third of three essays on 5) “the times, places, and manner” clause. Here the defense of the clause moves beyond the argument that it is necessary and proper to “a positive advantage.” In conclusion, “I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives.” 

Federalist 62-66: The Senate

Federalist 62.

Madison “enters next on the examination of the Senate.”  He organizes the five essays on the Senate around five “heads.” Federalist 62 covers four of the “heads.” 

The first three are “1) the qualification of Senators, 2) the appointment of them by the state legislatures, 3) the equality of representation in the Senate. ” It is “unnecessary to dilate,” says Madison, on 1) and 2).  Concerning 3) this is the result of the compromise, which renders us a “compound republic, partaking of both the national and federal,” and, accordingly, “ does not call for much discussion.” But, he does say that it is “a advantageous consequence” that “no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the States.” 

The remainder of Federalist 62 introduces 4) “the number of Senators and the term for which they are to be elected.” Madison divides the coverage of 4) into six parts. The treatment of the first four of these six “defects” and six “remedies,” occurs in this essay and are directed to checking the House, that “numerous and changeable body.”  

First .  The Senate operates as “a salutary check” on efforts by representatives in the House to betray the public trust. Second . The smaller numerical size, and the longer duration in office, provides a healthy restraint “to the impulse of sudden and violent passions.” Third . A Senate is vital to overcoming “the blunders” of popular legislation.  “A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained….I scruple not to assert that in American Governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last mode which increases the security for the first.” Fourth . A Senate helps overcome the “mutability in the public councils.” A frequent change of the representatives in the lower House causes a “change in opinions,” and then a “change in measures.”  

Madison outlines five “mischievous effects of mutable government.” A) “It forfeits the respect and confidence of other nations, and all the advantages connected with national character.” B) At home, it “poisons the blessings of liberty itself…if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” C) “Public instability” favors “the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people.” D) “No great improvements or laudable enterprises can go forward” without the presence of “a steady system of national policy.”  E) It robs the system of “attachment and reverence.” 

Federalist 63

This essay contains twenty-one paragraphs.  The first six paragraphs of the essay concludes the fifth and sixth part of 4) “the number of Senators and the term for which they are to be elected.” Madison then turns in paragraph seven to protecting the people “against their own temporary errors and delusions.” Paragraphs 8 through 14 revisit the sufficiency of the extended orbit and what the ancients knew about the principle of representation. The essay concludes with a consideration of the Antifederalist claim that the Senate will become a “Tyrannical Aristocracy.” 

The Idea of “Due Responsibility”

β 1. Fifth . A Senate is valuable because it provides “ a due sense of national character.” 

β 2 and 3. In particular, it is wise to listen to the “opinion of the impartial world,” and the “unbiased part of mankind” lest the “numerous and changeable” House of Representatives “be warped by some strong passions or momentary interest.”

 β 4.  Sixth .  Madison introduces a “new, but paradoxical, understanding” of “the due responsibility in the government to the people.”  

β 5.  Instead of understanding “responsibility” exclusively in terms of “dependence on the people” through “the frequency of elections, ” Madison puts forth the idea of the “responsibility” of the representatives to the long run interests of the community.

β 6.  This is the “responsibility” of the Senate.

“The Cool and Deliberate Sense of the Community”

β 7. The Senate is valuable at certain “critical moments” in “public affairs.” It is “salutary” to have a Senate that can check the “temporary errors and delusions of the people,” until reason, justice, and truth can regain their authority over the public mind.” The vital role of the Senate in the institutional framework, then, is to secure the principle of “the cool and deliberate sense of the community.”

The “Extension of the Orbit” Revisited

β 8.  Madison revisits the importance of  “the extension of the orbit” element in the science of politics introduced in Federalist 9 and explicated in Federalist 10.  He admits that the extended orbit theory of Federalist 10 is necessary but insufficient and, may in fact, be counterproductive.  Once again, we need further “auxiliary precautions” to make the American experiment succeed.

β 9.  To be sure, America is different from other governments, both “ancient and modern.“ Yet, it is instructive to note that “history informs us of no long-lived republic which had not a senate.” 

The “Principle of Representation” Revisited

β 10. Madison repeats the claim of Federalist 9 that “the principle of representation” is the pivotal difference between the American model and those found in antiquity. He revisits the claim that the principle of representation was “unknown” to the ancients. 

β 11, 12, & 13. The extent to which the principle of representation was used in antiquity.

β 14. Thus, “it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political institutions.” The unique feature of the American experiment is, that for the first time, we have “ the total exclusion of the people in their collective capacity , from any share” in the government,” rather than “ the total exclusion of the representatives of the people from the administration” of the government.”  Madison then concludes “that to insure this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory.” 

The Senate as a “Tyrannical Aristocracy”

β 15. The opposition will claim that the Senate will become, by “gradual usurpations,” an independent and  “tyrannical aristocracy.”

β 16.  One response to the Antifederalists is “that liberty may be endangered by the abuses of liberty as well as by the abuses of power.” 

β 17.  A second response is that the claim defies reason: for the alleged “tyrannical aristocracy” to take place, the Senate must “in the first place, corrupt itself,” and ultimately corrupt “the people at large.”  

β 18.  A third response: the claim defies experience of the state governments.

β 19.  A fourth response: even the British example fails to lead to “tyrannical aristocracy.”

β 20.  A fifth response: there are no examples from antiquity of  “tyrannical aristocracy.” 

β 21.  Finally, the House of Representatives will never allow this to happen.

Federalist 64

This is the first of three essays on 5) “the powers vested in the Senate.”  The essay covers the “advise and consent” clause concerning the treaty making power that the Senate shares with the President. Jay asks why is it better for national policy to involve the Senate and not the whole Congress?  “The Constitution has taken the utmost care” by the size of the Senate, the need for “secrecy and dispatch,” and the age and duration in office provisions that the Senators “shall be men of talents, and integrity.” Thus “the treaties they make will be as advantageous as…could be made.” 

Federalist 65

This is the second of three essays on 5) “the powers vested in the Senate” The remaining powers of the Senate involve the participation of the Senate “with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments.” The former is covered in the executive essays; here, Hamilton explains “the judicial character of the Senate.” In short, this essay covers the impeachment-conviction power.  The Senate, and neither the House nor the Supreme Court, is the “tribunal sufficiently dignified” and “sufficiently independent” to render the sentence of “perpetual ostracism from the esteem and confidence and honors and emoluments of his country” for official “POLITICAL” misconduct.  

Federalist 66

This is the last of three essays on 5) “the powers vested in the Senate.”  This essay concludes the defense of locating of the “determining in all cases of impeachment” power alone in the Senate. This power does not 1) violate the doctrine of the separation of powers, 2) “give to the government a countenance too aristocratic,” or produce a conflict of interest with the Senate-Executive 3) appointment power, or 4) treaty making power. 

Federalist 67-77:  The Presidency

Federalist 67.

This is the first of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is the first of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Cato V. 

“Scarcely any other part of the Constitution,” says Hamilton, has been “inveighed against with less candor or criticized with less judgment.”  The opposition portray the Presidency as a full-grown progeny of monarchy, and Cato claims that, under the Constitution, the President can fill temporary vacancies in the Senate.  This is utter nonsense, since this power is “expressly allotted to the executives of the individual States.”  Yet, this is typical of the “shameless” exercise of “their talent of misrepresentations,” and “an unequivocal proof of the unwarrantable arts which are practised to prevent a fair and impartial judgement of the real merits of the Constitution.”

Federalist 68

This is the second of eleven essays written by Hamilton defending the Presidency Presidency against the “unfairness” of the Antifederalist “representations.” This is the second of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is the Federal Farmer.

He remarks that the “mode of appointment” by the Electoral College “is almost the only part of the system, of any consequence, which has escaped without severe censure.”  He reminds the reader that “this process of election affords a moral certainty that the office of President” will be “filled by characters pre-eminent for ability and virtue.”  This is important since “the true test of a good government is its aptitude and tendency to produce a good administration.” And a good executive is central to a good administration.

Federalist 69

This is the third of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is third of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Tamony. 

The “real character of the proposed executive” is revealed in terms of the organization and powers tests. The tests are 1) “single magistrate,” 2) “ four years; and is to be re-eligible,” 3) impeachment and removal from office, 4) “qualified negative of the Presidency,” 5) “occasional…commander-in-chief” power which “would amount to nothing more than the supreme command and direction” of the armed forces, 6) power to pardon, 7) power to “adjourn the legislature,” 8) with the “advice and consent of the Senate, to make treaties,” 9) power to “receive ambassadors and public ministers,” 10) “the power to nominate and appoint.”  Hamilton concludes that putting the Constitution to these tests, the Presidency is closer to the Governor of New York than to the Monarch of Great Britain. In fact, with the exception of the treaty-making power, “it would be difficult to determine whether that magistrate would in the aggregate, possess more or less power than the governor of New York.” 

Federalist 70

This is the fourth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.”  The essay opens with the Antifederalist concern “that a vigorous executive is inconsistent with the genius of republican government.” Hamilton’s response is that “energy in the executive is a leading character in the definition of good government.”  He explores two questions. A) What are the “ingredients which constitute energy in the executive?”  B) How far can these ingredients be combined with other ingredients which constitute safety in the republican sense? A) There are four ingredients of energy: I Unity, II Duration, III Adequate Provision for Support, and IV Competent Powers. B) There are two ingredients of republican safety: I “A due dependence on the people,” and II “A due responsibility.”

A) I Unity is “conducive to energy.”  “The dictates of reason and good sense,” demonstrate that unity in the executive better secures the goals of “decision, activity, secrecy, and dispatch.” A “plurality in the executive” also destroys “responsibility.”

Federalist 71

This is the fifth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” It covers A) II Duration as it pertains to “the personal firmness of the executive.

β 1.  “It is a general principle of human nature that a man will be interested in what he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it.”  The duration provision helps the President to be “interested” in resisting the “ill-humors” of society and a “predominant faction in the legislative body.”

β 2.  “The servile pliancy of the executive to a prevailing current in the community or in the legislature” is NOT “its best recommendation.”  The President must resist a “complaisance to every sudden breeze of passion” that might emerge in the society contrary to the true interests of the people, and, instead be “the guardians of those interests to withstand the temporary delusions in order to give them time and opportunity for more cool and sedate reflection.”  It is the duty of the executive to secure the “republican principle”:  “the deliberate sense of the community should govern.” 

 β 3.  “The executive should be in a situation to dare to act…with vigor and decision.”

β 4.  “The fundamental principles of good government” requires a fortification of the executive against the “almost irresistible” tendency in “governments purely republican” for the “legislative authority to absorb every other.” 

β 5- β7.  “It may be asked whether a duration of four years” is sufficient. It may not “completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government.” 

Federalist 72

This is the sixth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay concludes the coverage of A) II Duration pertaining to “the stability of the system of administration.” He lists five “pernicious” “ill effects” that will occur as a result of “exclusion.” 

β 1. “There is an intimate connection between the duration of the executive magistrate in office and the stability of the administration of government” which includes “foreign negotiations,” public finance, and “the directions of the operations of war.”  

β 2. “With a positive duration of considerable extent, I connect the circumstance of re-eligibility.” The former is vital for individual firmness; the latter for a “wise system of administration.”  

β 3.  “Exclusion” from office, or term limits, for the President is “pernicious.”

β 4.  “One ill effect of the exclusion would be a diminution in inducements to good behavior.” “The desire of reward is one of the strongest incentives of human conduct.   Even the love of fame, the ruling passion of the noblest minds” is not strong enough to motivate “the generality of men” toward “the positive merit of doing good.”  

β 5, 6, 7. “Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation.”  It is contrary “to the stability of government, to have half a dozen men who had credit enough to raise themselves to the seat of the supreme magistracy wandering among the people like discontented ghosts and sighing for a place which they were destined never more to possess.”

β 8.  “A third ill effect of the exclusion would be the depriving the community of the advantage of the experience gained by the Chief Magistrate in the exercise of his office.”  Remember, “experience is the parent of wisdom.” 

β 9.  “A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the State, their presence might be of the greatest moment to the public interest or safety.”

β 10. “ A fifth ill effect” is that “by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures.” 

β 11. These “disadvantages” are worse under a “scheme of perpetual exclusion.” 

β 12, 13.  “What are the advantages promised to counterbalance these disadvantages?…1 st , greater independence in the magistrate; 2 nd , greater security to the people.” 

β 14.  The disadvantages of exclusion outweigh the advantages.

Federalist 73

This is the seventh of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is the fourth of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Abraham Yates. This essay covers the third and fourth, and the last, of the “ingredients”: A) III:  Adequate Provision for Support, and A) IV:  Competent Powers.  The essay focuses on A) IV.  Attention is given to A) IV a, the veto power. 

Hamilton defends the “qualified negative of the President” as 1) “a shield to the executive,” to protect its “constitutional rights,” and as 2) an “additional security against the enaction of improper laws.” Sometimes, instead of adhering to the principle of “due deliberation,” the Congress passes laws through “haste, inadvertence, or design.” Thus the   “public good” is “evidently and palpably sacrificed.” The presidential veto, moreover, “will often have a silent and unperceived, though forcible, operation.” 

Federalist 74

This is the eighth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV.  Attention is given to A) IV b, the commander-in-chief clause, and A) IV c, the power to pardon and reprieve clause. Concerning the former, Hamilton observes “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”  As to the latter, the Congress may not always be in session; “there are often critical moments when a well-timed offer of pardon…may restore tranquillity to the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Federalist 75

This is the ninth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV.  Attention is given to A) IV d, the treaty making power.  Hamilton claims that this “is one of the best digested and most unexceptional parts of the plan.”  Human nature demonstrates the wisdom of 1) joining the Senate and the President in the “possession of the power,” and 2) excluding the “fluctuating,” and “multitudinous,” House. Furthermore, it is republican to have 2/3 of the Senators present concur, rather than require the concurrence of 2/3 of the whole Senate.    

Federalist 76

This is the tenth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV.  Attention is given to A) IV e, the appointing power. He argues that the mode proposed advances the premise that “the true test of a good government is its aptitude and tendency to produce a good administration.” The critical question is why require “the co-operation of the Senate” in what is traditionally viewed as an exclusively executive function?  “Their concurrence would have a powerful, though in general, a silent operation.  It would be an excellent check upon a spirit of favoritism in the President.” Furthermore, “it would be an efficacious source of stability in the administration.” 

Won’t the Senate simply “rubber stamp” Presidential nominations? “This supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence.” We should “view human nature as it is, without either flattering its virtues or exaggerating its vices.”  The Senate will live up to its assigned duty.

Federalist 77

This is the last of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay concludes the coverage of A) IV, the issue of energy, and turns, finally, but in only a concluding paragraph, to B) how these ingredients can be combined with others that are safe in the republican sense? 

A) Hamilton claims that an added advantage “to the stability of the administration,” is that the consent of the Senate “would be necessary to remove as well as to appoint.” He approves of “this union of the Senate with the President” in the nomination, appointment, and removal process. He endorses the exclusion of the House from the process:  “A body so fluctuating and at the same time so numerous can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all when it is recollected that in half a century it may consist of three or four hundred persons.” 

B) In Federalist 70, Hamilton introduced B) and stated that there were “two ingredients of republican safety”: I “A due dependence on the people,” and II “A due responsibility.”  Here he says, “The answer to this question has been anticipated in the investigation of its other characteristics.”  

Federalist 78-82:  The Judiciary

Federalist 78.

This is the first of five essays written by Hamilton on the Judiciary. In this essay, we also find the fifth of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is the “ Protest of the Minority of the Convention of Pennsylvania, Martin’s speech, etc .” 

β 1. “We proceed now to an examination of the judiciary department.” 

β 2.  The coverage of the judiciary is in two parts: A) “the manner of constituting it” and B) “its extent.”

β 3.  There are three A) “objects.”  “1 st .  The mode of appointing the judges. 2 nd . The tenure by which they are to hold their places.  3 rd . The partition of the judicial authority between different courts and their relations to each other.” [See Federalist 81.]

β 4. A) 1 st .  See Federalist 76 and 77. 

β 5. A) 2 nd .  “As to tenure by which the judges are to hold their places: this chiefly concerns [1] their duration in office, [II] the provisions for their support, [III] the precaution for their responsibility.”  The remainder of the essay covers the case for [I] their duration in office. {Article III, Section 1.}

β 6. “The standard of good behavior…is certainly one of the most valuable of the modern improvements in the practice of government.”  It helps the judiciary to resist “legislative encroachment.” β 7-β 17 makes the case for “permanent tenure” to resist the encroachment of the legislature.

β 7. The judiciary “will always be the least dangerous to the political rights of the Constitution….It may truly be said to have neither FORCE nor WILL but merely judgment.”

β 8.  The judiciary is “the weakest of the three departments of power,” and its “natural feebleness” needs fortification.  

β 9.  “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority.”  It is the “duty” of the courts, “to declare all acts contrary to the manifest tenor of the constitution void.”  

β 10.  The opposition thinks that this “doctrine would imply a superiority of the judiciary to the legislative power.”  

β 11.  But “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”

β 12.  The courts are an “intermediate body between the people and the legislature” to keep the latter within their proper sphere. The legislature cannot be “the constitutional judges of their own powers.” The Constitution is the fundamental law and it belongs to the courts to “ascertain its meaning” and to secure “the intention of the people” over “the intention of their agents” whenever there is “an irreconcilable variance between the two.”  “The interpretation of the laws is the proper and peculiar province of the courts.” Since the Constitution is the “fundamental law,” it therefore belongs to the Supreme Courts “to ascertain its meaning.” 

β 13.  This does not “suppose a superiority of the judicial to the legislative power.”

β 14.  “In determining between two contradictory laws…it is the province of the courts to liquidate and fix their meaning and operation.  So far as they can, by any fair construction” they ought to “be reconciled to each other.” When “impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other.”

β 15.  “Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

β 16.  “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure for the constitutional intentions of the legislature…. The courts must declare the sense of the law,” and not “be disposed to exercise WILL instead of JUDGMENT.”

β 17. “The permanent tenure of judicial offices” is critical if the courts are to be “the bulwarks of a limited Constitution against legislative encroachments.”

β 18. “Permanent tenure” can help to resist the “ill humors” that may momentarily “lay hold” of the people to violate the Constitution.  “As faithful guardians of the Constitution,” the courts must restore the norm of “more deliberate reflection.”

β 19. “Permanent tenure” can also help to resist legislative efforts to injure “the private rights of particular classes of citizens, by unjust and partial laws.”

β 20. “Permanent tenure” is needed so that courts provide “inflexible adherence to the rights of the Constitution, and of individuals.”

β 21. “Permanent tenure” is needed to attract individuals with the “requisite integrity,” and the “requisite knowledge” to handle the “variety of controversies which grow out of the folly and wickedness of mankind.”  But “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”

β 22. “Good behavior” for justices has the added benefit of securing “good government.”

Federalist 79

This is the second of five essays written by Hamilton on the Judiciary.  This essay continues A) 2 nd .  “As to tenure by which the judges are to hold their places,” and covers: “[II] the provisions for their support,” and [III] the precaution for their responsibility.” {Article III, Section 1.}

With respect to [II] we should remember “that in the general course of human nature, a power over a man’s subsistence amounts to a power over his will .” A “fixed provision for their support” enhances judicial independence. And to be impeached “for malconduct” is the constitutional “precaution” for securing “their responsibility.” He rejects the call for a mandatory retirement age. 

Federalist 80

This is the third of five essays written by Hamilton on the Judiciary.  He turns to B) “the proper extent of the federal judiciary.”  He examines, first, the five “proper objects” of the judicial authority. He then turns to an examination of the cases and controversies covered by the judicial power {Article III, section 2} and especially it extension “to all cases, in law and equity, a) arising under the (sic) Constitution and b) the laws of the United States .”  As a “sample” of a), as distinguished from b), Hamilton includes “all the restrictions upon the authority of the State legislatures.” {See Article I, Section 9.} Thus the federal courts ought to “overrule” state laws that are “in manifest contradiction of the articles of Union.”  What are “equity causes” that “can grow out” of a) and b)?  “There is hardly a subject of litigation,” that does not involve “ fraud, accident, trust , or hardship .” And if “inconveniences” should emerge in the implementation of the various judicial powers, “the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”  

Federalist 81

This is the fourth of five essays written by Hamilton on the Judiciary.  In Federalist 78, we learned that three A) “objects” to the coverage of the judiciary. Here, he turns to A) 3 rd . “The partition of the judicial authority between different courts and their relations to each other.” {Article III, Sections 1 and 2.} 

He examines the claim that the Supreme Court will become the supreme branch because it has the power “to construe the laws according to the spirit of the Constitution.” There is “not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution.”  It is true, however, that “the general theory of a limited Constitution” requires the courts to over turn a law in “evident opposition” to the Constitution.  But it is a “phantom” to expect judicial supremacy: judicial “misconstructions and contraventions of the will of the legislature may now and then happen, but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” A second “phantom” is that the Congressional power to constitute “inferior courts” is intended to abolish state and local courts. And there is a third “phantom,” that the clause, “the Supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make,” is not an attempt to abolish the trial by jury at the state level.  Hamilton observes that the original jurisdiction of the Supreme Court “is confined to two classes of cases.”  

Federalist 82

This is the last of five essays written by Hamilton on the Judiciary. He continues A) 3 rd . “The partition of the judicial authority between different courts and their relations to each other.” Here, he discusses exclusive and concurrent jurisdictions between the general and state governments and invites the reader to consult Federalist 32.  In the process, he reiterates Madison’s remarks about “liquidation” in Federalist 37: It’s “time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.”  

Federalist 83-84: Five Miscellaneous Republican Issues

Federalist 83.

1) Hamilton discusses the objection that “has met with most success”:  “ the want of a constitutional provision for the trial by jury in civil cases.”  This is the longest essay in The Federalist and the last of six essays in The Federalist that identify specific authors of Antifederalist writings.  Here, it is the “absolutely senseless” Report of the Pennsylvania Minority and the propositions of the Massachusetts Convention on trial by jury.  

The issue turns on how to interpret silence.  The Constitution provides for “the trial by jury in criminal cases,” but “is silent in respect to civil.” It is “absurd,” says Hamilton, to interpret “this silence” as “an implied prohibition of trial by jury in regard to the latter.”  There is a “material diversity” from state to state concerning trial by jury in civil cases for “the plan of the convention” to have imposed one uniform standard on all the states. Besides, the opposition grossly exaggerates “the inseparable connection between the existence of liberty and the trial by jury in civil cases.”  

Federalist 84

This second longest essay in The Federalist contains twenty-four paragraphs. Hamilton begins with a discussion of 2) “the most considerable” of the “remaining objections”:  “the plan of the convention contains no bill of rights.” This is contained in β 1- β 12.  He then turns in β 13-β 15 to 3) the location of the seat of government. An “extraordinary” objection is 4) “the want of some provision respecting the debts due to the United States.” This is covered in β 16. He turns, finally, in β 17- β 24, to the claim that 5) “the adoption of the proposed government would occasion a considerable increase of expense.”  

β 1, 2. “The most considerable of these remaining objections is that 2) the plan of the convention contains no bill of rights.” True, New York doesn’t have a “prefixed” bill of rights, but the opposition claim that the New York Constitution contains the “substance” of a bill of rights “in the body of it” and “adopts” the British “common and statute law.”  

β 3. “The Constitution proposed by the convention contains…a number of such provisions.” 

β 4.  He lists eight rights located “in the body” of the U. S.  Constitution: a) The post impeachment-conviction provision of Article I, Section 3; b) four rights from Article I, Section 9—the privilege of habeas corpus, no bill of attainder, no ex-post facto laws, and “no title of nobility;”–and c) three rights from Article III, Sections 2–the provision for trial by jury in criminal cases and the two parts of the treason clause. 

β 5. These are “of equal importance with any which are to be listed found in the constitution of this State.”  Blackstone, for example, thinks “the habeas corpus act” is “the BULWARK of the British Constitution.”

β 6. The prohibition on titles of nobility “may truly be denominated the cornerstone of republican government.”

β 7. The claim that the New York Constitution “adopts, in their full extent, the common and statute law of Great Britain” is simply false.  “They are expressly made subject ‘to such alterations and provisions as the legislature shall from time to time make concerning the same.’”

β 8.  “Bills of Rights are, in their origin, stipulations between kings and their subjects.” The “We the people” clause in the Preamble to the Constitution “is a better recognition of popular rights than volumes of those aphorisms which make the principle figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a constitution of government.” 

β 9, 10. “Bills of Rights…are not only unnecessary in the proposed Constitution but would even be dangerous.”  

β 11. A declaration protecting liberty of the press is “impracticable.”  We must seek its security “on public opinion, and on the general spirit of the government.” 

β 12. “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” It meets two vital objects of a bill of rights: it 1) declares and specifies “the political privileges of the citizens in the structure and administration of the government,” and 2) defines “certain immunities and modes of proceeding, which are relative to personal and private concerns.”

β 13-15.  Hamilton answers objection 3) that the citizens will lack the “proper knowledge” to judge the conduct of a government so far removed from the people. This will be “overbalanced by the effects of the vigilance of the State governments” on the conduct of  “persons employed in every department of the national administration.”  Moreover, “the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.”

β 16. An “extraordinary” objection is 4) “the want of some provision respecting the debts due to the United States.” This, says Hamilton, is simply “inflammatory.”

β 17- β 24.  He turns, finally, to the claim that 5) “the adoption of the proposed government would occasion a considerable increase of expense.” But look what we gain from the increase:  a new and improved system of government; “it is certain that a government less expensive would be incompetent to the purposes of the Union.”  One observer suggests that “the dreaded augmentation of expense” will spring from “the multiplication of offices under the new government.” This is ridiculous since there are few new offices.  True, the judges will be an added expense, but this will be of no “material consequence.” And this will “counterbalance” the decline in the expenses of a) Congress since “a great part” of their business “will be transacted by the President,” and b) the State legislatures since “the Congress under the proposed government will do all the business of United States themselves, without the interference of the State legislatures.”  But won’t there be an increase in the expense of running the House with an augmentation in the number of representatives? “No.” Currently, there are “sixty-five persons, and probably at no future period by above a fourth or a fifth of that number.”   

Part VII 

Federalist 85: analogy to state governments and added security to republicanism.

Hamilton informs his readers that “that there would appear still to remain for discussion two points {outlined in Federalist 1}: ‘the analogy of the proposed government to your own State constitution.’ And ‘the additional security which its adoption will afford to republican government, to liberty, and to property.’`’ These topics have been “exhausted” in previous essays. “I never expect to see a perfect work from imperfect man.” Surely the plan of the convention is more perfect than what we have under the Articles? Let’s not call for another convention.  Furthermore, isn’t it better to “obtain subsequent amendments than previous amendments to the Constitution?”  Remember, “seven out of the thirteen States” have already ratified the plan of the convention.  

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

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History Resources

The United States Constitution: Federalists v. Anti-Federalists

By tim bailey, unit objective.

This unit is part of Gilder Lehrman’s series of Common Core State Standards–based teaching resources. These units were developed to enable students to understand, summarize, and analyze original texts of historical significance. Through a step-by-step process, students will acquire the skills to analyze any primary or secondary source material.

Today students will participate as members of a critical thinking group and "read like a detective" in order to analyze the arguments made by the Federalists in favor of ratifying the new US Constitution.

Introduction

Tell the students that after the Constitutional Convention of 1787 in Philadelphia, the nation’s new Constitution had to be ratified by the states. The debate over ratification became very heated, especially in New York. This led to a spirited exchange of short essays between the Federalists, who promoted the new Constitution, and the Anti-Federalists, who put forward a variety of objections to the proposed new government. Today we will be closely reading excerpts from four of the Federalist Papers in order to discover what the Federalists’ positions and arguments were. Although the Federalist Papers were written anonymously under the pen name "Publius," historians generally agree that the essays were written by Alexander Hamilton, James Madison, and John Jay.

• Federalist Papers #1, #10, #51, and #84 (excerpts) . Source: The full text of all the Federalist Papers are available online at the Library of Congress.
• US Constitution, 1787 . Source: Charters of Freedom , National Archives and Records Administration, www.archives.gov/exhibits/charters
• Overhead projector or other display

The students will encounter vocabulary that they do not know. There are words in eighteenth-century essays that many adults do not know the meaning of either. It would be overwhelming to give the definition for every unknown word as well as self-defeating when we are trying to get the students to be more independent learners. One benefit of having the students work in groups is that they can reason out the meanings of words in context together. If the students are truly stuck on a word that is critical to the passage, you can open up a class discussion. As a last resort, you can provide the meaning.

First, a caution: do not reveal too much to the students about the arguments presented by either the Federalists or Anti-Federalists. The point is to let the students discover them through careful reading of the text and discussion with their classmates. They will then construct their own arguments based on the text. Depending on the length of the class period or other factors, this lesson may carry over into tomorrow as well.

• Divide the class into groups of three to five students. These will be the "critical thinking groups" for the next several days.
• Discuss the information in the introduction. The students need to at least be familiar with the failure of the Articles of Confederation, the Constitutional Convention, and the writing of the US Constitution.
• Hand out the four excerpts from Federalist Papers #1, #10, #51, and #84. If possible have a copy up on a document projector so that everyone can see it and you can refer to it easily.
• "Share read" the Federalist Papers with the students. This is done by having the students follow along silently while the teacher begins reading aloud. The teacher models prosody, inflection, and punctuation. The teacher then asks the class to join in with the reading after a few sentences while the teacher continues to read along with the students, still serving as the model for the class. This technique will support struggling readers as well as English language learners (ELL).
• Answers will vary, but in the end the students should conclude that groups interested in "the rights of the people" more often end up as "tyrants."
• Answers will vary, but in the end the students should conclude that the "effects" include "a division of society," and the remedy is the formation of "a republic."
• Answers will vary, but in the end the students should conclude that "such devices [separation of powers] should be necessary to control the abuses of government" and "you must first enable the government to control the governed; and in the next place oblige it to control itself."
• Answers will vary, but in the end they should conclude that "the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS . . ."
• Wrap-up: Discuss final conclusions and clarify points of confusion. We want students to be challenged, not overwhelmed.

Today students will participate as members of a critical thinking group and "read like a detective" in order to analyze the arguments made by the Anti-Federalists in opposition to ratifying the new US Constitution.

Review the background information from the last lesson. Today we will be closely reading excerpts from four of the Anti-Federalist Papers in order to discover just what the Anti-Federalists’ positions and arguments were. Although the Anti-Federalists’ essays were written anonymously under various pen names, most famously "Brutus," historians generally agree that among the authors of the Anti-Federalist essays were Robert Yates, Samuel Bryan, George Clinton, and Richard Henry Lee.

• Anti-Federalist Papers #1, #9, #46, and #84 (excerpts) . Source: Morton Borden, ed. The Antifederalist Papers (East Lansing: Michigan State University Press, 1965). Unlike the Federalist Papers, the essays by Anti-Federalists were not conceived of as a unified series. Thus historians have imposed different numbering systems as they compiled various essays; the numbers used here are Morton Borden’s chronology.
• US Constitution, 1787
• Overhead projector or other display method

As in the previous lesson, encourage students to reason out the meanings of words they do not know. If the students are truly stuck on a word that is critical to the passage, you can open up a class discussion. As a last resort, you can provide the meaning.

• Students should sit with their critical thinking groups from the last lesson.
• Discuss the information in the introduction.
• Hand out the four excerpts from Anti-Federalist Papers #1, #9, #46, and #84. If possible have a copy up on a document projector so that everyone can see it and you can refer to it easily.
• "Share read" the Anti-Federalist Papers with the students.
• Answers will vary, but in the end the students should conclude that the "Aristocracy" and "Lawyers" are out to deceive "The People" in order to "satiate their voracious stomachs with the golden bait."
• Answers will vary, but in the end the students should conclude that this Anti-Federalist Paper is a satire and that the evidence includes statements such as "totally incapable of thinking or acting" and "have power over little else than yoking hogs."
• Answers will vary, but in the end the students should conclude that "the Congress are therefore vested with the supreme legislative powers" and "undefined, unbounded and immense power."
• Answers will vary but in the end they should conclude that "but rulers have the same propensities as other men, they are likely to use the power with which they are vested, for private purposes" and "grand security to the rights of the people is not to be found in this Constitution."

The students will deeply understand the major arguments concerning the ratification of the US Constitution. This understanding will be built upon close analysis of the Federalist Papers and Anti-Federalist Papers. The students will demonstrate their understanding in both writing and speaking.

Tell the students that now they get to apply their knowledge and understanding of the Federalist and Anti-Federalist arguments. They will need to select a debate moderator from within their group and divide the remaining students into Federalists and Anti-Federalists. As a group they will write questions based on the issues presented in the primary documents. They will also script responses from both sides based solely on what is written in the documents. This is not an actual debate but rather a scripted presentation for the sake of making arguments that the authors of these documents would have made in a debate format. In the next lesson the groups will present their debates for the class.

• Federalist Papers #1, #10, #51, and #84 (excerpts)
• Anti-Federalist Papers #1, #9, #46, and #84 (excerpts)

Students will be sitting with the same critical thinking group as in the previous two lessons. All of the students should have copies of the excerpts from the Federalist Papers and the Anti-Federalist Papers as well as the United States Constitution as reference materials.

• Tell the students that they need to choose one person to be a debate moderator and then divide the rest of the group into Federalists and Anti-Federalists.
• Inform the students that they will be writing a script for a debate based on the issues raised in the primary documents that you have been studying. This script is to be written as a team effort, and everyone in the group will have a copy of the final script.
• The teacher will provide three questions that all groups must address during the debate. However, the students should add another two to four questions that can be answered directly from the primary source material.
• It is important that the students portraying both the Federalists and the Anti-Federalists use the actual text from the documents to make their arguments.
• What is your position on a bill of rights being added to the Constitution?
• How would you address concerns about the "powers of government" under this new Constitution?
• Can you explain why this Constitution is or is not in the best interests of our nation as a whole?
• Students can then construct their own questions to be directed to either side with the opportunity for rebuttal from the other side.
• Remind the students again that everyone needs to work on the script and the responses must be taken directly from the text of the documents introduced in class.
• Wrap-up: If students have time, let them rehearse their presentations for the next lesson.

The students will demonstrate their knowledge and understanding of the Federalist and Anti-Federalist arguments. This is not an actual debate but a scripted presentation making arguments that the authors of these documents would have made in a debate format.

Students will be sitting with the same critical thinking groups as in the previous three lessons. All of the students should have copies of the excerpts from the Federalist Papers and the Anti-Federalist Papers as well as the United States Constitution as reference materials.

• Tell the students that they will be presenting the debates between the Federalists and the Anti-Federalists that they scripted in the last lesson.
• The Moderator should begin the debate by introducing both sides and setting out the protocol for the "debate." (Actually watching a clip of a debate might be helpful as well.)
• In evaluating the student work you should measure the following: Did the students effectively address all three mandatory questions using text-based evidence? Did the additional questions developed by the students address pertinent issues? Were all of the students in a group involved in the process?
• Wrap-up: As time allows, have students debrief the last four lessons and what they learned.
• OPTIONAL: If you believe that you need to evaluate more individualized understanding of the issues presented over the past four lessons you can have students write a short essay addressing the three mandatory questions that they were given as a group.

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Federalist no. 84 by alexander hamilton (1788).

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• Index of articles
• 1 Background of the author
• 2 Full text of Certain General and Miscellaneous Objections to the Constitution Considered and Answered
• 3 Background of the Federalist Papers
• 4 Full list of Federalist Papers
• 6 External links
• 7 Footnotes

Federalist Number (No.) 84 (1788) is an essay by British-American politician Alexander Hamilton arguing for the ratification of the United States Constitution . The full title of the essay is "Certain General and Miscellaneous Objections to the Constitution Considered and Answered." It was written as part of a series of essays collected and published in 1788 as The Federalist and later known as The Federalist Papers . These essays were written by Alexander Hamilton , James Madison , and John Jay . They argued for ratification of the United States Constitution as a replacement for the Articles of Confederation . [1]

• Author: Alexander Hamilton
• Source: Originally published in McLean's Edition sometime between July 16 - August 9, 1788. Republished in 1788 as part of the collection The Federalist , now referred to as The Federalist Papers .
• Abstract: Hamilton argues against the Bill of Rights being included in the Constitution.

Background of the author

Alexander Hamilton (c. 1755-1804) was a British-American politician, lawyer, and military officer. He was a delegate to the Constitutional Convention of 1787 and is considered a Founding Father of the United States. Below is a summary of Hamilton's career: [2]

• 1775-1777: Officer in the New York Provincial Artillery Company
• Including service as an adviser to General George Washington
• 1787: Delegate to the Constitutional Convention in Philadelphia, Pa.
• 1787-1788: Author of 51 of the 85 essays in The Federalist Papers
• 1789-1795: First secretary of the treasury of the United States

Full text of Certain General and Miscellaneous Objections to the Constitution Considered and Answered

The full text of Federalist No. 84 reads as follows: [1]

Background of the Federalist Papers

The Federalist Papers are the 85 articles and essays James Madison, Alexander Hamilton, and John Jay published arguing for the ratification of the U.S. Constitution and the full replacement of the Aritcles of Confederation. All three writers published their papers under the collective pseudonym Publius between 1787-1788. [4]

The Articles of Confederation were an agreement among the original thirteen states in the United States to unite under a central government consisting of the Continental Congress. The Continental Congress proposed the Articles in 1777, and they became effective in March 1781.

The Articles primarily authorized the national government to govern diplomatic foreign relations and regulate and fund the Continental Army. Under the Articles, the Continental Congress lacked the power to levy taxes and could only request funds from the states. The inability of the national government to raise money caused the government to default on pension payments to former Revolutionary War soldiers and other financial obligations, resulting in unrest. Shay's Rebellion was a prominent example of unrest related to the weakness of the central government and the Continental Congress' inability to fulfill its obligations.

The Constitutional Convention of 1787 was convened to solve the problems related to the weak national government. Federalists, including James Madison, Alexander Hamilton, and John Jay, advocated for a completely new government under the United States Constitution . They rejected the Articles of Confederation as a weak governing document that needed fully replaced. The federalists thought the strengthened national government could help protect individual rights from factional conflicts at the state and local levels. They argued the Constitution would strengthen the federal government enough to allow for effective governance but not enough to infringe on the rights of individuals. [5] [6] [4]

Anti-federalists like Patrick Henry, Melancton Smith, and George Clinton argued that the national government proposed under the Constitution would be too powerful and would infringe on individual liberties. They thought the Articles of Confederation needed amended, not replaced. [5] [6] [4]

Full list of Federalist Papers

The following is a list of individual essays that were collected and published in 1788 as The Federalist and later known as The Federalist Papers . These essays were written by Alexander Hamilton, James Madison, and John Jay. They argued for ratification of the United States Constitution as a replacement for the Articles of Confederation .

• Federalist Papers
• Anti-Federalist papers

External links

• Search Google News for this topic
• ↑ 1.0 1.1 Yale Law School , "The Federalist Papers: No. 84," accessed June 21, 2022
• ↑ Biography.com , "Alexander Hamilton," accessed March 6, 2018
• ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
• ↑ 4.0 4.1 4.2 The Federalist Papers , "THE ANTIFEDERALIST PAPERS," accesses May 27, 2022
• ↑ 5.0 5.1 Stanford Encyclopedia of Philosophy Archive , "Federalism," accessed July 27, 2021
• ↑ 6.0 6.1 Middle Tennessee State University , "Anti-Federalists," accessed July 27, 2021
• Pages using DynamicPageList3 dplreplace parser function
• Federalism tracking
• The Federalist Papers

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Federalist 84: Completing the Declaration of Independence

The Sixteenth of July, not having the same ring, will never compete with the Fourth for fireworks, picnics, or paeans to the document published on that day. But now that Americans have digested our annual hosannas to the natural rights theory of the Declaration of Independence, we might save a moment to remember the appearance, in the New York Independent Journal of July 16, 1788, of Publius’ broadside against a Bill of Rights. If the Fourth of July represents the American contribution to abstract universalism on rights, July 16 was the day we theorized it, in Federalist 84 , as the achievable expression of a particular polity.

Received wisdom now holds that Abraham Lincoln completed the Founding project at Gettysburg by restoring the Declaration to its proper place: the apple of gold displayed in the constitutional frame of silver . There is great insight in that understanding. But it may also help to invert, as it were, the telescope and look closer in time. Rather than Lincoln completing the work of the Constitution by elevating it to the plane of equality and natural rights, there is a substantial sense in which Publius completed the work of the Declaration by grounding it in the concrete experience of a particular political community.

As Edmund Burke noted, abstract commitments receive meaning through particular political traditions. It is this expression in the concrete that grounds abstract rights and inhibits their abuse. As the French were to demonstrate in blood, only a year after Federalist 84 was penned, abstractions unmoored from the concrete, lived experience of human beings easily become unhinged. These utopian commitments do not have to grapple with the tradeoffs inevitable in prudent statecraft.

A human face needs to be put on abstruse philosophy. Lived experience does that. Liberty, equality, and fraternity are noble goals in the abstract. Carried to their extremes—assuming they have meanings that can be actualized, which the likes of Robespierre insisted they did—they delude their adherents into the belief that they are well worth the necks of an unsavory few, or unsavory thousands . Such projects tend to be evangelistic, as the French Revolution—and, later, the Russian—became.

Friedrich von Gentz wrote in 1800 (in a work translated into English by John Quincy Adams) that a crucial difference between the American and French Revolutions was that the former appealed to the particular rights of citizens:

Never, in the whole course of the American revolution, were the rights of man, appealed to, for the destruction of the rights of a citizen; never was the sovereignty of the people used as a pretext to undermine the respect, due to the laws, or the foundations of social security; no example was ever seen of an individual, or a whole class of individuals, or even the representatives of this, or that single state, who recurred to the declaration of rights, to escape from positive obligation, or to renounce obedience to the common sovereign; finally, never did it enter the head of any legislator, or statesman in America, to combat the lawfulness of foreign constitutions, and to set up the American revolution, as a new epocha in the general relations of civil society.

The distinction in no way diminishes the philosophical grandeur of the Declaration. Nor does recognizing this distinction derogate the universalism of the Declaration’s claim that “all” are created equal and that some rights are, by their nature, incapable of alienation.

It is, however, to say that the project was incomplete until Publius expressed those principles through a particular regime. As Martin Diamond observed , the Declaration itself is remarkably agnostic as to forms of government; it was not intended to be a governing blueprint. But neither was its political philosophy wholly grounded until Publius made it concrete.

Gertrude Himmelfarb has argued that The Federalist lacked the universalist “pretensions” of the  French Encyclopédie, with which she contrasts it:

Designed for a specific purpose and a specific country, the papers did take the occasion to reflect upon human nature and society and even aspired to formulate the principles of a science of politics, but such speculations grew out of immediate, practical concerns and were advanced modestly and even tentatively.

This particularism is evident throughout Publius’ work, which is repeatedly grounded in the lived experience of the American polity. Thus, for example, Federalist 7, which deals with the potential for internecine conflict between states, combines a universal claim—that the states would make war for the same reasons all political societies make war—with a particular one: that these states occupy territory and situations particularly disposed to conflict. Similarly, Publius’ most compelling dismantling of the Anti-Federalists’ claim against an extended republic is, as Federalist 9 notes, the demonstrable experience of the already existing American states with territories that exceed the Baron de Montesquieu’s counsel.

Federalist 11 speaks of the “adventurous spirit, which distinguishes the commercial character of America.” The “sense of the people”—that is, this people, it is observed in Federalist 32 (one of several papers to take the constitutional and cultural temperature of the uniquely American republic and to cite it as a protection against abuse)—will prevent the exploitation of the supremacy clause.

In Federalist 48, we are warned to watch after the unique power of the legislature in “our governments.” Federalist 51 speaks of “considerations particularly applicable to the federal system of America.” Federalist 62 defends the necessity of a Senate in part on the grounds that, again, “our governments” are uniquely prone to excessive lawmaking.

Thus Federalist 84: This people’s rights are protected because this regime is assigned only particular powers, which are in turn checked and balanced in a manner suiting (as the previous papers have shown) the genius—that is, the type—of the American people.

This is not a universal claim. It is explicitly claimed for the American Constitution, specifically contrasted with others: “Here, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations.” Most important, the Constitution is itself a bill of rights because it specifies “the political privileges of the citizens in the structure and administration of the government[.]” That is, rights are given meaning and protection through participation in, not merely immunity from, a particular regime, which is why the “ordaining” and “establishing” of the regime by “WE THE PEOPLE . . . is a better recognition of popular rights”—not, significantly, individual ones—than are philosophical constructs.

The particular regime must also give shape to rights that are otherwise loosely defined, if at all.   Federalist 53 had noted that liberty “lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society.” Federalist 84 similarly observes that that the abstract phrase “liberty of the press” lacks concrete meaning. The polity must give it expression and, crucially, its protection ultimately depends on the “general spirit of the people and of the government”—that is, this particular people and this particular government. Abstract proclamations, Publius declares, mean little: They would better belong in “a treatise of ethics, than in a constitution of government.”

To be sure, Federalist 84, like the Declaration, makes bold claims as to rights. But they are now particular rights. The claim is not the rights of “all men” in all places, but rather these rights, of this people, protected in this particular way.

The universal and particular conceptions are not incompatible. One requires the other. The abstractions of the Declaration form the philosophical latticework of Federalist 84’s commitment to rights. But Publius’ expression of them in a particular community through the mechanism of measured self-government gives them meaning and grounding and helps to inhibit both their abuse and their corrosion into untethered individualism.

That concreteness is among Publius’ foremost achievements. Fireworks might be too much to ask for July 16. But without Publius completing the project that began on the Fourth, it is hard to imagine its success.

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Table of Contents

Federalist no. 84.

Certain General and Miscellaneous Objections to the Constitution Considered and Answered. 

To the People of the State of New York:

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2 "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3 "No bill of attainder or ex-post-facto law shall be passed." Clause 7 "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3 "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life, Usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the BULWARK of the British Constitution."

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper Usay the objectorse to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with theirrepresentatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT." The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.

The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.

Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.

But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.

The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.

1. Vide Blackstone's "Commentaries," vol. 1., p. 136.

2. Vide Blackstone's "Commentaries," vol. iv., p. 438.

3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.

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• May 22, 2023

The Federalist Papers: No. 84

At about this time in 1788, Alexander Hamilton (a.k.a. Publius) writes Federalist Paper No. 84. His essay would later appear in a bound volume with other Federalist essays (see below). Hamilton addresses miscellaneous objections to the Constitution.

He first addresses the most obvious concern of many Americans at the time: The Constitution then lacked a bill of rights. Hamilton supports this omission.

First, the Constitution “contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing” as a bill of rights (just as the New York state constitution does). Hamilton lists several examples in the text of the Constitution, including the provision that “[n]o bill of attainder or ex-post-facto law shall be passed” and that “[t]he privilege of the writ of habeas corpus shall not be suspended . . . .”

Second, Hamilton notes that the government created by the Constitution is a limited one. Adding a bill of rights to such a limited Constitution is “not only unnecessary” but it could “even be dangerous.” Why say that the “liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed” in the first place? Instead, such a bill of rights will do nothing more than to offer a “colorable pretext to claim more [powers] than were granted.”

In other words, instead of looking for an affirmative grant of power, federal officials will begin to claim the ability to do anything that was not expressly prohibited. The latter standard allows federal officials to claim far more power! Hamilton believes that the limited Constitution, in and of itself, serves as a bill of rights.

Today we know that Hamilton’s fears were justified. Our federal government no longer looks to the Constitution for an affirmative grant of power. Instead, it seems to assume it can do anything and everything not expressly prohibited.

And, let’s be honest, it does some of the prohibited things, too.

Hamilton hits a few more miscellaneous objections, in quick succession. Is it proper to confer these powers upon a national government that is so far away from so many of its constituents? Hamilton trusts that the “executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration.” The states can be relied upon to keep the federal government in line.

Oops. Except the states seem to have forgotten their function.

Further, Hamilton believes that those citizens residing nearest the seat of the government will “in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project.”

Hmm. Well, maybe he was not anticipating so many large federal bureaucracies with so many federal employees living in and around Washington, D.C.

Will the new government result in great expense, perhaps caused by “multiplication of offices under the new government”? Hamilton thinks not, but his list of possible federal departments did not foresee the advent of the EPA, OSHA, the Department of Education, or any number of other departments. He also thinks that the existence of a unified effort at the national level will, in some cases, lessen the cost of state governments.

Clearly, he did not foresee the advent of unfunded state mandates, either! But he could not know that the states would ratify the 17th Amendment, changing the selection process for Senators and removing one bulwark against such unfunded federal largesse.

In truth, Hamilton’s list is a bit depressing. It mostly reminds us of how far we have fallen from the original expectation of a limited federal government that left the states alone to govern themselves.

Logistical note for those who care:

As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).

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