More on the Federalist Papers as the Rosetta Stone for the Constitution

There are a number of problems with the notion that the Federalist Papers provide a perfect guide to the Constitution.

Let me return to a topic from the other day:  the role of the Federalist Papers as a tool to illuminate our understanding of the US Constitution.  There are a number of problems with the notion that the Federalist Papers provide this sought-after perfect guide.

A relatively simple fact that needs to be understood about the Federalist Papers is that they were not as coordinated a set of essays as would be necessary for a definitive guide to all things constitutional.

There was no master plan behind the composition of the Papers.  Hamilton saw a need to respond quickly to  a series of essays being published in September and October of 1787 in opposition to the ratification of the constitution (essays that would eventually becomes part of the Anti-Federalist writings).  To counter these pieces, Hamilton sought out first John Jay and then James Madison (due to Jay’s poor health) to help him produce pro-ratification essays.  The first of these appeared on October 27, 1787 in the Independent Journal.  These were written and published at a fast clip: at times up to four a week (Meyers 1973:86-87).  Indeed, McLean notes that Madison was not Hamilton’s first choice, but rather he tried to persuade Gouverneur Morris to be one of the contributors (McLean 2003:23).   This was all done rather quickly, meaning serious coordination clearly gave way to expediency. McClean puts it thusly:  “The numbers were coming off the press so fast that they did not have time to review each other’s contributions before they appeared” (23).

To further this point, it is worth noting the Madison’s early contributions to the Papers were based not on the work of the Philadelphia convention, but on work that pre-dated that event.  For example, Federalist 10 (Madison’s first contribution) was a reworking of his essay “Vices of the Political System of the United States”—which was written before the constitution had been drafted and reflected theoretical views that comported with Madison’s Virginia Plan (which lacked the separation of powers structure that we ended up with).  If one looks at other examples of Madison’s early contributions (such as  18 and 19) one can likewise see the recycling of earlier work (in this case his study of confederacies in Greece and Europe in anticipation of the Philadelphia convention).  As interesting and even important as all of these writing may well be, their origins and construction undercut the argument of people like Peter Berkowitz who see a clear and timeless vision for the constitution within the pages of the Papers.

If the Federalist Papers really do sum to a Rosetta Stone that allows us clarity on constitutional meaning, how can we square this with the fact some of the work was done prior to the convention?  This is especially true in regards to number 10, which is considered these days to be one of the most important essays of them all.  Worse (for those looking to treat the Federalist Papers like some kind of Bible for explaining the US Constitution) is the fact that 10 is based on a different basic political theory than is another classic, number 51Federalist 10 is based, as noted, on Madison’s pre-convention writings and is predicated on a theory that representative government has to function via a system of factional balancing—something that Madison saw as viable only in a large, extended republic (he saw failure in smaller units wherein a specific faction could dominate).  Federalist 51, on the other hand, is based on the notion of separation of powers and checks and balances as a means of keeping a republic functional.

One has to recall that under Madison’s own plan for the constitution (i.e., the Virginia Plan) there wasn’t a separate election of the executive from the legislative (the executive was chosen by the legislature) and the relationship between the first and second chambers was quite different because a) seats in both were predicated on the population of the states (i.e., no co-equality in the second chamber), and b) the first chamber selected the second.  In Madison’s initial preference for the constitution, the chamber that we now call the House of Representatives was a far more central actor.  Further, the basic format of the government that Madison preferred looked, in some ways, more like a parliamentary system than one of presidentialism (i.e., a separation of powers system).  It was this model, not the one we ended up with, that informed the “Vices” essay and that drove the logic behind Federalist 10.

Federalist 51, on the other hand, was written later and reflects the actual separations of powers structure that we find in the constitution.  As a side note on that issue, if one consults Madison’s Notes of Debates in the Federal Convention of 1787 one will find very little in the way of debate about the significance of choosing the president outside of the legislature—that is, there was not a debate about parliamentarism v. presidentialism (likely because there was no real understanding at the time of the institutional differences).  Rather, the debate was one about procedure for picking the executive.  This is important because much of the understanding of the implication of separation of powers came after the convention, not before.

If one wants a simple take-away here, it would be as follows.  The Federalist Papers cannot be a perfect interpretative tool for understanding the constitution the way some people want it to be, if anything because it is based, in part, on multiple theoretical propositions and was not written in a way that allowed for intellectual and theoretical coordination.  Not only were they written by three Framers, there is clear evidence of intellectual disagree within the minds of one of those Framers, i.e., Madison himself (he of “Father of the Constitution” fame).

As Kernell (2003:94) notes:

While the former [10] prescribes essentially a majoritarian solution to the potential dilemma of majority tyranny, separation of powers -as implemented with the Constitution’s strong checks and balances described in Umber 51—succeeds only to the extent it frustrates this same majority control.

And then he continues (95):

Om Number 10, Publius unconditionally reposed government authority in a well designed legislature, which closely resembles the House of Representatives in all its essential features…Yet in writing in Number 51 several months later, Publius singles out the House as posing the greatest potential threat to liberty and against which the Constitution must array the full force of checks and balances.

In 10 Madison focused on “representation, a well-proportioned legislature, and an extended republic” (97) as the means of controlling the violence of faction and allowing for a functional representative republic.  In 51, he focuses on separated powers, bicameralism, and checks on legislative power.  In other words, in 10, the legislature will be controlled by allowing enough representation into the legislature that no single faction can control it.  In 51, the legislature itself must be controlled by other institutional forces.

There is, by the way, more to this discussion and for those who are interested, I highly recommend the Kernell book.

None of this, by the way, is intended to denigrate the Federalist Papers or their significance.  What is is intended, however, is to continue to illustrate the profound problems to be associated with a) monolithic views of the Founders, and b) the using a proof text method of argumentation to demonstrate a contemporary political point of view is not an argument.

Some previous blog posts on this topic:

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Works Cited

Kernell, Samuel. 2003 “‘The True Principles of Republican Government’:  Reassessing James Madison’s Political Science.” in Samuel Kernell, ed.  James Madison: The Theory and Practice of Republican Government. Stanford:  Stanford University Press.

Madison, James. 1966. Notes on the Debates in the Federal Convention of 1787 Reported by James Madison. Athens, OH: Ohio University Press.

McLean, Iain. 2003 “Before and After Publius:  The Sources and Influence of Madison;s Political Thought,”  in Samuel Kernell, ed. James Madison: The Theory and Practice of Republican Government. Stanford: Stanford University Press.

Meyers, Marvin. 1981. The Mind of the Founder: Sources of the Political Thought of James Madison., revised edition. Hanover, NH: University Press of New England.

FILED UNDER: Politics 101, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Tillman says:

    Yeah, but if you noticed the Founders’ internal squabbles over institutional design, you’d have to admit they were human and capable of making mistakes. That sends all kinds of shockwaves through some people’s conceptual frameworks.

  2. MBunge says:

    I think it’s somewhat mistaken to focus too much on the Federalist Papers themselves, because conservatives could just as easily wave around some other totem of infallible correctitude. If all people are interested in is saying “I’m right. You’re wrong. Shut up and do what I say”, trying to debunk whatever pretense they’re using to support that attitude is futile.

    Mike

  3. LC says:

    It’s been a very long time since I read the Federalist Papers or did any study of the Constitutional debates but they left me with a strong conviction that the Constitution must be treated as a living document and not some carved-in-stone set of tablets whose meaning is absolute and unchanging (the Scalito/Thomas theory).

    There were a lot of disagreements among the Founders from the debates before the Declaration of Independence through the Articles of Confederation to the Constitution and a number of compromises – the one on slavery having the longest and most detrimental effect, IMO, on the country.

    If teaching the papers, or the debates in general, made citizens more aware of just how many different ideas were floating around and half-reconciled in constructing the country made our political debates more informative and civil, that would be nice.

    But since scholars steeped in every word that was written argue vehemently that interpretation X is “severely” incorrect and Y is the only rational interpretation – well, I don’t think it is likely to much help the general public. Scholars read and see what they want to see, as do the rest of us.

  4. Ben Wolf says:

    This sort of analysis is what I really like to see at OTB, and it must have taken considerable time. Thanks Dr. Taylor, and I’d like more please.

  5. Ron Beasley says:

    @Ben Wolf: I agree Ben and would like to ditto the thanks to Dr Taylor.

  6. Ben Wolf says:

    The great irony is that the Constitution, the most important (and supposedly most respected) legal document in American history, may also be the most misunderstood. Virtually everything written here by Dr. Taylor is missing from the mythology we’re taught during childhood.

  7. PD Shaw says:

    My comment in the previous thread was that the Federalist Papers are the “number one interpretive guide to the Constitution.” They are the best, which is a comparative evaluation. There are others, but they have problems.

    Madison’s debate notes are private, incomplete and not contemporaneous. Their release in 1840 (after everybody involved was dead and could not dispute their content) creates a lot of discomfort about their reliability.

    Blackstone’s Commentaries, widely read by the framers, offers good insights into terminology and their legal assumptions, but they predate the Constitution and the scope of the project, the entirety of the English Common Law, means it often dealt with matters irrelevant to the Constitution (e.g., marital law).

    Classical philosophers (the people that the writers of the Federalist Papers were referencing directly or indirectly). Indirect and time-consuming.

    Justice Story’s Commentaries on the Constitution. Influential and important, arguably biased to the Federalist position and Story says:

    I have drawn by far the greatest part of my most valuable materials [from] The Federalist, an incomparable commentary of three of the greatest statesmen of their age [and Chief Justice Marshall]

    The nice thing about the Papers were that they were public, published at the approximate time the Constitution was being debated, and they were written by people belonging on both sides of the coming first party system.

  8. @Ron Beasley: and @Ben Wolf: Thanks for the kind words. This is really the kind of thing I would like to spend more time on, although I am not sure how much interest there is.

  9. @PD Shaw: I think that they represent fascinating attempts at political analysis and theorizing in the context of the early republic. Likewise, I think they provide insight into the politics of the day.

    I am not sure, however, how well they provide interpretive tools in a legal sense.

    As noted: they weren’t written for that purpose.

  10. Tillman says:

    Madison’s debate notes are private, incomplete and not contemporaneous.

    How are they not contemporaneous if he was scribing the arguments at the Constitutional Convention?