The Federalist Project 6

“The Concept of Ratification” and The Federalist 29 – 36

In the first half of Rakove’s treatment of “The Concept of Ratification,” we undertake a legalistic and theoretical discussion of just what it meant to seek “ratification” of the recently drafted constitution, the product of an ad hoc working group of brilliant delegates drawing from what would become the first states of the Union. Many intriguing and vexing questions quickly surfaced, enough to find Madison bristling with anxiety over the fate of his beloved document, which already represented a tour de force in calculated compromise and delicate negotiation. What type of body should convene to ratify the constitution? Would Congress – the early prototype created under the Articles – play a role, and if so, how extensive would it be? Would the existing state legislatures or special state-level conventions be assembled to vote on approval? And most significantly, what role would revisions and amendments play in the “ratification” process, the operative word of which – at least to Madison’s understanding – meant “approval” and “affirmation,” in the legal sense of enactment?

    As we’ve already seen, Madison highly distrusted the state-level political minds who might preside over such conventions, and he had reason to worry that the constitution would die “in committee” if each state were permitted to attach specific amendments. Madison was a self-conscious, if well-deserved, elitist in this regard; he was very wary to delegate revision authority to parochial mediocrities. Further concerns surrounded whether or not ratification required unanimity and what kind of voting procedure would be employed. For example, could state-level conventions vote on individual articles, on the model of the “line-item veto” of contemporary presidential fantasy? Madison feared these and other factors, Rakove notes, “as ill advised initiatives that would transform an orderly process of reform into a chaotic cacophony of immeasurable acts” (107). The very alliteration of that presentiment brings chills to the spine.

    Hamilton begins in Federalist 29–36 a lengthy disquisition on the nature and types of taxation. With his usual systematic rigor, a variety of tax schemes and their degrees of justice come under evaluation. Reading these essays, one is easily (and profitably) reminded of taxation as the theme par excellence in American politics, and Hamilton’s educated sensitivity to the revolutionary spirit toward too onerous or disproportionate taxation reigns acute in this section. In a way, our entire political tradition hinges on questions of who, what, and how much to tax? To what use is a secondary if necessary concomitant to these basic pivot points. The rest of policy is just details, of little concern to average citizens, then as well as now. Our disagreements about concrete policy items, whatever the moral or ethical dimensions we care to assign to them, in most cases boil down to disagreements over the way tax dollars are collected and spent. We want national defense, but how much do we want to spend on it? We want access to cheap oil and manufactures, but how badly? We want universal health care or better schools, but is it our job to pay for them?

    Add to that the complexity of a farmer in Ohio paying for a new airport runway in Arizona or a bank teller in Arkansas paying for fishery subsidies in Maine and you have a dizzying array of taxation quandaries, and none of them is entirely new. In appreciation of that dilemma, Hamilton delivers himself of a remarkable utterance in Federalist 36: “Happy it is when the interest which the government has in the preservation of its own power coincides with a proper distribution of the public burdens and tends to guard the least wealthy part of the community from oppression” (222). Do we see this same candor, or anything akin to it, in our policymakers today? One certainly doesn’t envy Hamilton’s task: the source of the revolution had been the cumulative festering of oppressive taxes paid to a distant and unforgiving overlord. The framers now had to convince the states that the “preservation” of a national seat of “power” – seemingly distant and unforgiving to many at its outer fringes – was necessary to a “proper distribution of the public burdens,” burdens which themselves needed both explanation and justification. I can’t think of a more essential and concise phrase with which to describe the basic business of government.

The Federalist Project 5

“The Politics of Constitution-Making” and The Federalist 21 – 28

Rakove’s fourth chapter takes up the critical issues surrounding the power and scope of the executive branch, primarily its method of election. The idea of allowing the national legislature to choose the executive – on the model of some contemporary parliamentary systems – was quickly rejected, indeed denounced, as a recipe for making such an election “the work of intrigue, of cabal, and of faction” (82). We are reminded of the Founders categorical distrust of factions (evidenced by their shared love of the word “cabal”) and deep reverence for the separation of powers, not to mention their keen desire to distinguish the republican system they were designing from its flawed European precedents.

    Of course, our modern political parties serve to intertwine Congressional politics and presidential elections in ways the framers could not have envisioned and by which they would likely be appalled. We regularly see our presidents hitting the campaign trail on behalf of the party they represent, endorsing particular candidates not only for House and Senate races, but also gubernatorial contests. Even when specific candidates and elections are not at stake, the nearly constant fundraising that the executive spearheads in the course of a typical four-year term renders the early suspicion of collusion and cabal at the highest levels of national politics one of the framers soundest insights. It remains arguable whether the popular election – the electoral college is another matter – of the chief executive, given the party system the Founders tried to avoid but could not ultimately prevent from taking hold, is more or less successful in avoiding the pitfalls of “intrigue” and influence that the rejected, more aristocratic, model of legislative selection suggested in 1787.

    Rakove properly notes the scant attention that a crucial August 17 revision to the clause in the draft constitution authorizing Congress to “declare” (and not “make”) war received – a very significant and loaded edit, whose implications we have lived with intimately in the 20th century and 21st centuries. Though even the tradition of Congress “declaring” war has since become quaint and old-fashioned (not employed since World War II), the modern executive’s nearly unchecked monopoly on warmaking powers is hardly questioned as right and proper. Given this contemporary context, the Founders delicate swapping of two active verbs for what became a very passive Congressional role in practice is fraught with both historical irony and imminent tragedy.

    As was evident to all who suffered under the arbitrary and whimsical rule of European monarchs (and the framers had George III as their exemplar), grounding the country’s warmaking authority in republican representation allowed for the prevalence of caution, conservatism, and restraint in the deployment of military forces, necessitating a slow and deliberative process that would not be subject to the jealousies and fantasies of a single, all-powerful personality. Imagine if our wars were treated with the same kind of legislative scrutiny and technocratic debate that health care reform and carbon regulation are currently receiving. The image is not perfect, of course, but it’s certainly preferable to the cult of the commander in chief we seem to be stuck with since Eisenhower, the legalistic and informal trust we place in the president alone to make decisions about war and peace.

As a correction (or perhaps caveat) to our last posting, the framers did in fact show concern for the “moral dimensions” of slavery, and in fact, in ways we can relate to quite readily. Northern delegates to the Convention worried over the notion that slavery – as a debasing cultural force – inflicted harm on the free population but also constituted a crime against “the most sacred laws of humanity,” of infinite peril to all citizens of the republic (86). Nevertheless, there seemed to be agreement that these nuanced ethical and philosophical quandaries were not a Federal matter, that “the morality and wisdom of slavery are considerations belonging to the states themselves” (89). It’s not difficult to find comparable logic in the contemporary debates over issues such as abortion rights and same-sex marriage laws. Clearly, the option of deferring to state-level resolutions has always been an acceptable evasive tactic employed by national policymakers when it comes to the thorniest moral questions of the day.

In Federalist 24–28, Hamilton delivers a formal critique of standing armies in the republican system of government. He starts by rehearsing all the key arguments against the maintenance of a standing army (primarily, the opportunities it gives to executive corruption and demagoguery), then systematically destroys them all. For example, he roundly dismisses the prevailing notion that the states or local militias should bear the responsibility, and possess the requisite organization, efficiency, and might, for what we now call “national security”. The second amendment that later emerged granting citizens the right to bear arms as a political compromise and necessary appeasement to proponents of local defense leaves us with a very mixed legacy of wisdom.

    But even Hamilton knew that he was on shaky ground, for the same reason many framers distrusted a strong executive, and concedes that the provision of a standing army should be “freshly” debated every two years. Again, a well-funded and increasingly adventurous standing army is such an integral component of the American status quo as to leave this debate hardly more than academic, something we gripe about in conversation from time to time but do little to change in practice. But as some excellent recent books on the subject, such as Eugene Jarecki’s The American Way of War and Andrew Bacevich’s The Limits of Power and The New American Militarism, make clear, we should all be taking a closer look at exactly what our defense establishment has done to the character of our civil society in the past few decades. The findings are not pretty, nor does the trajectory seem easy to alter.

The Federalist Project 4

“The Politics of Constitution-Making” and The Federalist 15 – 20

In the first half of “The Politics of Constitution-Making,” Rakove undertakes a broad survey of the theme of “compromise” at the Constitutional Convention, focusing, naturally, on the two historic moments of negotiated concession, concerning: 1) the issue of the Senate as the “upper” house of Congress, assuring equal representation among the states; and 2) the calculation within the southern states of slaves as 3/5 of a person for representation purposes. These two compromises, it goes almost without saying, cannot be separated. Small-state worries about domination at the hands of large, northern population centers in the House of Representatives were part-and-parcel of the debate over how to count slaves. Big-state resistance to the notion of equal representation among states in the Senate – ignoring the demographic imbalances it implied – fed into the politics of slave calculation in a very direct way. For his part, Madison continued to articulate his distrust of the state legislatures as sadly lacking the “wisdom and stability” requisite for political vision, what Rakove aptly calls “parochial concerns” inhibiting a necessarily “broad view of the national interest.” How to deal with the “peculiar institution” of slavery in the context of the Convention was a prime example of Madison’s fear of factional interest hijacking policy, most sharply annunciated in Federalist 10. Here, the dominant view among northern states, as noted by Rakove, “accepted the accommodation with slavery as the price union,” a stiff price indeed, given the bloodbath that was its all but inevitable legacy in the 1860s, not too mention its aftershocks felt in the 1960s.

    The debate over slavery had many dimensions, of course, but a few require special mention. At the core of the discussion was the two-pronged problem of population as the basis for representation (not necessarily a given, according to Rakove) and the protection of property as a rationale for confederacy (widely assumed, but not unanimously agreed upon). Slaves had the dubious distinction of being both property and population, and also, strictly speaking, neither. Given the high-minded rhetoric of the Declaration of Independence, slavery in the American tradition was always an intuitive paradox of the highest magnitude. The famous 3/5 compromise only added further paradox, befitting the starting point of original hypocrisy.

    The discussions that sprung up around this hot-button issue highlighted the wisdom and accuracy of all Madison’s fears, in particular the “need to safeguard the conspicuous interest of North and South,” which inspired in this case, a “defensive orientation” within both camps, not at all conducive to principled negotiation. Was the convention serving “a society embracing a multiplicity of interests or a nation divisible into two great and potentially antagonistic factions”? The fact that slaves would be counted as subhuman bits of property had the unintended effect of “overvaluing the suffrage of the free male population of the slave states” while simultaneously undercounting the physical residents of an entire region. The moral dimension of the compromise, and the Founders’ abject failure to acknowledge it as such, goes beyond the scope of the present discussion, but nevertheless underscores the limited, practical nature of the Convention’s core objectives.

In Federalist 15–20, Hamilton and Madison begin a serious of lectures, replete with historical examples, on the inefficacy of weak confederacies in surmounting the general chaos and anarchy attending loosely-defined federal systems. Hamilton surveys the dismal results of ancient Greek city-state leagues, the German empire, and the United Netherlands in an effort to place the American experiment in a historical context and offer salutary reminders of just how much was at stake in the revised union. The overall picture is one of eventual dissolution of the confederacy, eternal jealousy among member states, and the nearly constant threat of warfare. A single jaw-dropping passage from Federalist 20 perfectly captures the mood of this series:

Let us pause, my fellow-citizens, for one moment over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven for the propitious concord which has distinguished the consultations for our political happiness (137).

In this remarkable prose, we can detect an early kernel of what later manifests as the doctrine of American exceptionalism, by which Americans somehow convince themselves that they are more blessed, more deserving, and less encumbered than other peoples and other times. In Hamilton’s case, the feeling was historical, informed by broad reading, active participation on the shaping of his society, and of course, his membership in one of the most talented generations in political history. The contemporary affliction, on the contrary, is notably ahistorical, based on mythical optimism and cultural ignorance, a sense of entitlement without rational basis or existential certainty, and hence, much more dangerous.

The Federalist Project 3

“The Madisonian Moment” and The Federalist 11 – 14

Rakove’s presentation of James Madison, “The Madisonian Moment,” challenges a superficial misconception of the Convention’s scribe as a sort of dry academic, an essential notetaker and punctilious proceduralist, but not the imposing intellectual presence of a Hamilton, Jefferson, or Franklin. On the contrary, he emerges from Rakove’s descriptions as an infinitely more colorful and restless figure, possessed of a vigorous, almost aggressive intellect that sparked forceful debate and demanded the highest standards of public service from his peers. Madison was no doubt a consummate advocate for establishing a strong central authority, as necessary “to compel” delinquent states “to fulfill their federal engagements.” His strong stance was in many ways born of his personal frustration and disappointment in the quality of his experience as an assembly delegate in Virginia. One critical contribution was his robust argument that property in the putative union of states was to be seen “as an interest deserving protection against the envious and unjust designs of the less fortunate” (41). On this note, Madison strikes the modern reader as a rabid conservative, but at the time, the view was decidedly progressive, Rakove notes, in meaningful contradistinction to legal conventions then prevailing on the Continent, which were rooted in an aristocratic tradition. Further to that notion was his unwavering (Rakove calls it “unmoderated”) view that the new confederation would need to provide for a central, secured national currency, anything less than which would be not only “unjust” but even “unconstitutional” – a bold statement indeed since there wasn’t yet a Constitution. Here again we observe a thematic link with contemporary fiscal conservatism.

    In Federalist 11–14, Hamilton continues his multipronged argument for the advisability of a stronger central authority to achieve efficiencies and security of scale. In particular, Federalist 11 raises the issue of a national navy, the commercial importance of which was an indisputable fact in the 18th century. Hamilton introduces here a new tonal element, an almost chauvinistic one, in which his desire to prove wrong British and other European skeptics who doubted the success of the new American state. He says: “Men admired as profound philosophers have in direct terms attributed to her inhabitants a physical superiority and have gravely asserted that all animals, and with them the human species, degenerate in America – that even dogs cease to bark after having breathed awhile in our atmosphere. Facts have too long supported these arrogant pretensions of the European. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother moderation” (91). In short, he views America’s pressing need to develop a navy commensurate with her potential as a way to stand up to the old world and put the lie to its condescension.

    Hamilton continues this thread in Federalist 14 on a slight variation. Here his aim is to confront the traditional notion in political science that suggests democratic government is suited best to small, homogeneous communities, not expansive, diversely populated nation-states. He summarily dismisses these criticisms as the “confounding of a republic with a democracy” and goes on to redefine the two for the dimwitted. Hamilton all but dares Europe to underestimate the power of American unity, noting that: “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union and excite horror at the idea of their becoming aliens, rivals, enemies” (104). Hamilton shows himself a true believer in the centrality of American identity and its promise to forge a prosperous and secure future for all those blessed to share in it.

The Federalist Project 2

“The Road to Philadelphia” and The Federalist 6 – 10

Rakove’s second chapter, “The Road to Philadelphia,” begins to set the stage for the discussions and tensions that led ultimately to the Constitutional Conventions in Philadelphia. A main motivation, as it appeared from letters exchanged among various state leaders, many of them future Presidents, was to strengthen or scrap the Articles of Confederation, with a range of positions on both sides of the debate. What was clear at the time was the pressing confluence of some Articles-era problems, all stemming from deliberate limits set on the central government to effect necessary policy: raising a common source of revenue, coordinating foreign policy, and regulating both interstate and foreign commerce. Rakove notes that the states “had served . . . as the great political laboratory” for republican experiments upon which the Framers could later propose revisions and improvements in 1787. Many were already ready to do so. Furthermore, “it became entirely permissible to ask whether divergent regional interests could sustain the ‘perpetual union’ of the Articles.” With the growing need to craft a new document and forge the basis for a much stronger central authority, personal correspondence and state-level discussions gave way to concrete steps toward a planning summit in Philadelphia.

    In Federalist 6–9, Hamilton continues to air his worries about the dangers presented by “dissensions between the states and from domestic factions and convulsions.” He extends his concern to analogous “rivalships” in commerce between nations and presents several compelling historical examples in which “the attachments, enmities, interests, hopes, and fears” of nations led them either to make war with their neighbors directly or to enter into alliances for the purpose of warmaking and security. Hamilton’s argument is twofold: such competitions, even the benign rivalries of commerce, might apply to interstate conflict, as we have seen in earlier essays, but might also encourage states to form separate partnerships with foreign countries, obligating them to make war or take sides in the event of war. In short, the weak Articles of Confederation compounded domestic vulnerabilities with a vast array of what Washington would later call “foreign entanglements,” the recipe for imminent disaster, in Hamilton’s view. Hamilton reminds us in Federalist 7 that “territorial disputes have at all times been found one of the most fertile sources of hostility.” What became the United States would learn that lesson time and time again as nearly constant post-independence territorial expansion led to a state of what historian Charles Beard called “perpetual war for perpetual peace.”

    Hamilton’s prescience in this thread is perhaps best shown in two quotations that find superb relevance to specific domains of our present discontent: open-ended war in the Middle East and a festering economic crisis at home. (1) “There is perhaps nothing more likely to disturb the tranquility of nations than their being bound to mutual contribution for any object that does not yield an equal and coincident benefit.” The controversy surrounding the TARP bank bailouts and massive stimulus spending and the widespread public frustration at their inefficacy bears out Hamilton’s insight with stunning precision. (2) “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates . . . to be more safe, they at length become willing to run the risk of being less free.” This last bit sends shivers down our spines as we contemplate the gorgeous mess our costly lifestyle and the wars we fight to preserve it have made of simple liberty and common dignity. In Federalist 10, Madison begins his famous discussion of factions and the dangers they present to healthy domestic policy, echoing notes from Hamilton’s thoroughgoing analysis of interstate rivalries and “jealousies.” Because of the broad scope of Madison’s topic, however, we shall continue our examination of factions, with their obvious parallels to the national political parties that eventually formed, in the next installment.

The Federalist Project 1

“The Perils of Originalism” and The Federalist 1 – 5

In this opening chapter of Jack Rakove’s Original Meanings, we confront several pitfalls of the “originalist” ambition to discover the Founders’ true intentions and the pure spirit of the Constitution they authored, not least of which springs from Madison’s own recognition that an “unbiased” history of the Convention of 1787 was well-nigh impossible (his stubborn effort to create one, however, remains indispensable reading). Rakove rehearses the main problems we face in our retrospective enterprise to understand the Constitution and the Federalist essays designed to get it ratified, all stemming from the intellectual and purposive underpinnings of the political debates that brought these remarkable men to Philadelphia in the first place: the eminently practical orientation of the delegates, the immediate experience of legislating and governing under the weak Articles of Confederation, various state, regional, and class interests that may have occluded the common purpose of the writers, and of course, the breadth and depth of the learning and literacy assumed as par for the course in 1787, which we’d be extremely hard pressed to match or even approximate today. Nonetheless, we must try to examine the Constitution under the refracted light of these original contexts combined with the fruits of modern scholarship; thus, Rakove is on our side.

    The first five essays of The Federalist introduce us to some of the principal worries that advocates of the Constitution felt as they countenanced the manifest failures of eight years under the Articles. Hamilton and Jay both warn of the danger posed by “jealousies” aroused among small neighboring states, pointing to endless European wars of rivalry and conquest as illustrative examples. Jay argues for the shared heritage among the former colonies (citing language, ancestry, religion, etc.) as reason for unifying under a central authority of some scope and potency. Over all, these introductory essays reveal a concern for the vulnerabilities the authors witnessed as the United States struggled to define itself in the wake of its recent declaration and war of independence, significant war debt, and first several years of fledgling republican sovereignty in an age of empires. One line question worth pursuing here is whether and to what extent the United States of today resembles the kind of strong union envisioned by Hamilton, Jay, and Madison. Does our propensity for regional or state-level blocs of power and cultural authority argue for or against Jay’s position on shared heritage? Have we overcome the “jealousies” and vulnerabilities inherent in the confederacies of small states they believed were destined to fail? Have great size and vigorous centralization made us safer internally and externally? How does the existence – and apparent success – of the European Union complicate 18th-century assumptions about unity and confederacy among heretofore sovereign entities? What does the European experience with colonial empires suggest about the future success of the United States as the builder of a vast informal empire (what we call “globalization”)?