FEDERALIST PAPERS

A collection of eighty-five essays byalexander hamilton(1755–1804), james madison(1751–1836), andjohn jay(1745–1829) that explain the philosophy and defend the advantages of the U.S. Constitution.

The essays that constitute The Federalist Papers were published in various New York newspapers between October 27, 1787, and August 16, 1788, and appeared in book form in March and May 1788. They remain important statements of U.S. political and legal philosophy as well as a key source for understanding the U.S. Constitution.

The Federalist Papers originated in a contentious debate over ratification of the U.S. Constitution. After its completion by the Constitutional Convention on September 17, 1787, the Constitution required ratification by nine states before it could become effective. A group known as the Federalists favored passage of the Constitution, and the Anti-Federalists opposed it.

To secure its ratification in New York State, Federalists Hamilton, Madison, and Jay published the Federalist essays under the pseudonym Publius, a name taken from Publius Valerius Poplicola, a leading politician of the ancient Roman republic. Their purpose was to clarify and explain the provisions of the Constitution, expounding its benefits over the existing system of government under the articles of confederation.

Federalist, No. 78, and the Power of the Judiciary

"We proceed now to an examination of thejudiciary department of the proposed government." So begins Federalist, no. 78, the first of six essays by alexander hamilton on the role of the judiciary in the government established by the U.S. Constitution.

Hamilton made two principal points in the essay. First, he argued for the independence of the judiciary from the other two branches of government, the executive and the legislative. In presenting a case for the judiciary, he reached his second major conclusion: that the judiciary must be empowered to strike down laws passed by Congress that it deems "contrary to the manifest tenor of the Constitution."

In presenting his argument for the independence of the judiciary, Hamilton claimed that it was by far the weakest of the three branches. It did not, he said, have the "sword" of the executive, who is commander in chief of the nation's armed forces, nor the "purse" of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, "neither FORCE nor WILL but merely judgment."

As a result of this weakness, the U.S. Constitution protects the judiciary from the other two branches by what Hamilton called "permanency in office." Article III, Section 1, of the Constitution declares, "Judges … shall hold their Offices during good Behaviour." By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures that judges will not be changed according to the interests or whims of another branch of government. According to Hamilton, permanent tenure also recognizes the complexity of the law in a free society. Few people, he believed, will have the knowledge and the integrity to judge the law, and those deemed adequate to the office must be retained rather than replaced.

The judiciary must also be independent, according to Hamilton, so that it may fulfill its main purpose in a constitutional government: the protection of the "particular rights or privileges" of the people as set forth by the Constitution. Here, Hamilton made his second major point. To protect those rights, he proclaimed, the judiciary must be given the power of judicial review to declare as null and void laws that it deems unconstitutional.

Critics of the Constitution claimed that judicial review gave the judiciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no. 78, by arguing that both branches are inferior to the power of the people and that the judiciary's role is to ensure that the legislature remains a "servant" of the Constitution and the people who created it, not a "master":

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.

Although judicial review is not explicitly mentioned in the Constitution, the U.S. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the 1803 case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated "judicial activism" by striking down legislation, Hamilton was correct in foreseeing that the U.S. Supreme Court and lower courts would protect the rights defined by the people in their Constitution.

cross-references

Marbury v. Madison; Marshall, John.

Hamilton, a New Yorker who served as treasury secretary under President george washington from 1789 to 1795, was the principal architect of The Federalist Papers. Hamilton conceived the idea for the book and enlisted the aid of Madison and Jay. He is thought to have written fifty-one of the essays: numbers 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85. Madison, who served two terms as the president of the United States, from 1809 to 1817, probably authored twenty-six of the papers: 10, 14, 37–58, and 62–63. Madison and Hamilton probably wrote papers 18–20 together. Jay, who sat as the first chief justice of the U.S. Supreme Court, from 1789 to 1795, wrote five essays: 2–5 and 64.

The essays presented a number of arguments with great importance for the founding of the U.S. government. They forcefully made the case for a strong union between the states (numbers 1–14); the ineffectiveness of the Articles of Confederation (15–22); the advantages of a strong, or "energetic," central government (23–36); and a republican government's ability to provide political stability as well as liberty (35–51). The later essays examined the roles of the three branches of government—the legislative (52–66), the executive (67–77), and the judicial (78–83)—as well as the issue of a bill of rights (84). The last essay consists of a closing summary (85). In making their arguments, the authors also discussed the benefits of federalism, under which the state and federal governments would each have a distinct sphere of power.

Several of the essays have been especially influential in U.S. political history and philosophy. The most famous, Federalist, no. 10, by Madison, concerns the dangers and remedies of factionalism for a republican government. Madison, seeking a "republican remedy for the diseases most incident to republican government," argued that a large republic of the kind envisioned by the Constitution will be less likely to fall victim to disputes between different factions than will a small republic. Here and in essay 51, Madison claimed that the diversity, or "plurality," of interests that exist in a large commercial republic will prevent any one faction from uniting to deprive the rights of a smaller faction.

The essays on the role of the federal judiciary have had a lasting influence on U.S. law. Essay 78 contains an important defense of the principle of judicial review, the power that allows the U.S. Supreme Court to strike down laws passed by Congress. In number 80, Hamilton argued for the establishment of a system of federal courts separate from state courts, an idea that was realized several years later.

further readings

Bailyn, Bernard. 1998. The Federalist Papers. Washington, D.C.: Library of Congress.

Hamilton, Alexander, James Madison, and John Jay. 1787–88. The Federalist Papers. Reprint, New York: New American Library of World Literature, 1961.

Helfman, Tara. 2002. "The Law of Nations in 'The Federalist Papers'." Journal of Legal History 23 (August): 107–28.

Martinez, J. Michael, and William D. Richardson. 2000."The Federalist Papers and Legal Interpretation." South Dakota Law Review 45 (summer): 307–33.

cross-references

Constitution of the United States; "Federalist Papers" (Appendix, Primary Document).

Federalist Papers (1787–1788).The Federalist Papers are the most important American contribution to political theory. Conceived by Alexander Hamilton and John Jay, this series of essays, written under the pseudonym “Publius,” countered the political campaign mounted by opponents of the Constitution during the months after the adjournment of the Constitutional Convention of 1787. Planned as a modest series of essays to appear in New York City newspapers, the Federalist Papers grew to eighty‐five numbers. Newspapers in others states reprinted the first numbers, but with the announcement in January 1788 that the essays would appear as a book, the out‐of‐state reprintings dwindled. Eventually the series filled two volumes published in March and May 1788. Hamilton wrote about fifty of the essays. Illness restricted Jay to only five, and James Madison (joining the consortium later) contributed the balance. Disagreement persists over whether Hamilton or Madison was the author of a handful of the essays. It was widely believed at the time that Hamilton and Madison were the primary contributors.

Written in a nonpartisan style, the Federalist Papers extolled the benefits of the union, demonstrated the inefficacy of the Articles of Confederation, explained and clarified the principles and provisions of the Constitution, and justified the exclusion of various provisions such as a Bill of Rights and a religious test for office‐holding. Hamilton introduced the series on 27 October 1787 with an essay suggesting that Americans must “decide the important question, 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”. Conceding that the love of liberty could lead to an “illiberal distrust” of government, he nevertheless insisted that “the vigour of government is essential to the security of liberty”.

While Hamilton's essays emphasized the importance of an energetic federal government, Madison, especially in Federalist No. 39 and 51, stressed the restraints placed on that government by free and frequent elections, the checks and balances built into the government through the separation of powers, and the healthy tension created by the division of power between the states and the federal government. Federalist No. 10, also by Madison, is particulary celebrated for its argument that in a large republic like the United States under the proposed Constitution, conflicting interest groups—notably economic interests—would be sufficiently numerous and dispersed to counterbalance each other, and thereby promote rather than endanger political stability, with no one interest group gaining complete dominance.

The original objective of the Federalist Papers was to convince New Yorkers to elect to their state ratifying convention delegates who would support the Constitution. In this the authors failed, as two‐thirds of New York's convention delegates initially opposed ratification unless the Constitution was first altered by amendments. But the series succeeded beyond the authors' expectations in other ways. Arguments espoused by “Publius” became the standard explanations used by other Federalists in the public debate waged in newspapers and pamphlets as well as in speeches in the state ratifying conventions. Thomas Jefferson, writing to Madison, praised the Federalist Papers as “the best commentary on the principles of government which ever was written”. To his son‐in‐law Jefferson observed, “descending from theory to practice there is no better book than the Federalist”. Since the adoption of the Constitution, scholars, judges, and lawyers have elevated the Federalist Papers to a unique status as the most authoritative source for discerning the framers' original intent.
See also Federalism; Revolution and Constitution, Era of.

Bibliography

Jacob E. Cooke, ed., The Federalist, 1961.
Thomas S. Engeman, Edward J. Erler, and Thomas B. Hofeller, eds., The Federalist Concordance, 1980.

John P. Kaminski

FEDERALIST PAPERS.

FEDERALIST PAPERS. On 27 October 1787, the first essay of The Federalist, written under the pen name Publius, appeared in a New York City newspaper. Its author was Alexander Hamilton, who conceived the project of publishing an extended series of essays to support the ratification of the newly proposed Federal Constitution. Hamilton recruited two other prominent leaders as his co-authors: John Jay and James Madison. Together, they published seventy-seven newspaper essays by April 1788, and another eight appeared in the second volume of the first book edition. Hamilton is credited with writing fifty-one essays, Madison twenty-nine, and Jay, weakened by illness, just five. All three authors drew upon their extensive experience in national politics and the military and diplomatic struggle for independence. The two main authors also played critical roles in the maneuvers leading to the Federal Convention and the drafting of the Constitution, and they also founded the rival schools of constitutional interpretation that developed after it took effect. As a result, The Federalist has long been regarded as the most authoritative exposition of the original meaning of the Constitution, and the leading American contribution to Western political thought.

The division of assignments allowed the authors to tap their particular strengths. Hamilton, the more ardent nationalist, had seven years of service in the Continental Army, mostly as aide-de-camp to General Washington; he was also a close student of public finance and a successful attorney. It was therefore fitting that he wrote the essays emphasizing the necessity for an effective national union with adequate powers over national defense and revenue, as well as those examining the executive and judiciary. Madison's experience was primarily legislative; he was more engaged with basic questions of political theory, and more concerned than Hamilton with balancing the authority of the Union and the states. It was equally fitting, then, that he wrote the leading essays on Congress and federalism, as well as addressing anti-Federalist objections that the Constitution violated fundamental maxims of free government.

Two of those maxims were closely associated with one of the most celebrated works of eighteenth-century political science, Montesquieu's The Spirit of the Laws. One of these maxims argued that republican government could safely operate only in small, homogeneous societies where the citizens shared similar interests and the virtue to subordinate private interest to public good. The other held that liberty depended upon a rigid separation of both the functions and personnel of the different departments of government. Madison challenged these propositions in two famous essays. "Federalist 10" argued that liberty would be more secure in a large, diverse republic, where "factious majorities" would find it more difficult to gain control of the government. "Federalist 51" concluded a series of essays on the separation of powers by arguing that the task of maintaining equilibrium among the departments required giving the members of each branch the incentives and means to protect their constitutional powers. Hamilton's best-known essay is "Federalist 78," which offered an early defense of the theory of judicial review, enabling courts to measure legislative and executive acts against constitutional standards.

BIBLIOGRAPHY

Adair, Douglass. "The Tenth Federalist Revisited." William and Mary Quarterly, 3d ser., 8 (1951): 48–67.

———. "'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist." Huntington Library Quarterly, 20 (1957): 343–360.

Cooke, Jacob, ed. The Federalist. Middletown, Conn.: Wesleyan University Press, 1961.

Epstein, David F. The Political Theory of The Federalist. Chicago: University of Chicago Press, 1984.

Furtwangler, Albert. The Authority of Publius: A Reading of the Federalist Papers. Ithaca, N.Y.: Cornell University Press, 1984.

Kesler, Charles R. ed. Saving the Revolution: The Federalist Papers and the American Founding. New York: Free Press, 1987.

JackRakove

See alsoUnited States Constitution ; andvol. 9:The Call for Amendments .