Saturday, February 25, 2017

The Constitution and the Federalist (Part 2)


 Supporters of the Constitution began to refer to themselves as "federalists" for the support of the federal system of government. Opponents who favored more power to the states and wanted to keep the federal government weak were referred to as "anti-federalists." 

In order to persuade the public to support the Constitution several of the leading "federalists" James Madison (1751-1836) who would become the 4th President of the U.S., Alexander Hamilton (1757-1804), and John Jay (1745-1829) published articles under the pseudonym, or pen-name, Publius. As I have said with ideology, these articles attempted to interpret events of the day: in this case that the Constitutional Convention has produced a document that is "good" for the people to approve of and should be ratified. 

The articles were published first in New York newspapers, but then reprinted throughout the country. They were intended to persuade a large segment of the public to adopt certain values, or even to act in a certain way. They have been collected in book form and are referred to as The Federalist Papers, or more simply The Federalist, and are still considered the definitive interpretation of the Constitution.

Federalist No. 10, for example, is important because it lays out the theoretical framework for the current system of government. Madison makes it clear that the purposes of the federal government, or the Union, the union of all the states, is beneficial because it will best control the effects of "factions." Today we would call them "special interests" but the meaning is the same. Sometimes, people seem to think that the U.S. government was founded by moral idealists but on the contrary the founders seemed to have a very pessimistic view of human conduct. Madison cautions that you cannot even deal with the "causes" of faction because to do that would very likely violate our liberties, but can only control the "effects" of faction, as he says:

James Madison
The latent causes of faction are thus sown in the nature of man, and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation and practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good (pp. 92-93).
In fact, it may only be contemporary liberals who are guilty of being too idealistic, and sound naive, when they act surprised that there is so much partisanship or factional conflict in politics today, like for example on taxes. Madison seems much more aware of this: 
The appointment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pocket (p. 93).

However the greatest danger from factions, Madison thought were "majority factions" (i.e. the poor). Madison is confident that a minority faction can be handled by the mechanisms of popular government, although he assumes people would actually do something and not just sit back passively if a minority was trying to take control or "usurp" authority. Majority factions however have spelt doom for democratic governments since ancient times Madison argues. He believes that the Constitution contains the "cure" for the democratic "disease." He singles out two aspects: representative government and the large size of the state. He identifies these as the major difference between "republican" and "democratic" government. Democracy was kind of a dirty word for many of the founders and they preferred "republic" (Latin for "the people's business") instead. The point he is trying to make is that he believes that voting for representatives, from among the "wise property owners," would add stability to the government. 


In a reversal of ancient political philosophy: he argues the large size of the republic is more stable than a smaller democracy (the ancient polis) which must remain close to the local people. His arguments for size are: 



a) The more people there are in the country the more chance competent and capable people will be found for office where you are more limited in choices in a smaller community. 

b) And that in a larger population it will be harder to fool all the people. 

c) He also argues that a larger population makes it harder for factions to dominate, as he says: "Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other" (p. 95). 

But again it must be stressed that the primary fear of the "wise property owners" was the faction of the poor, and suggests a dimension of class conflict that is normally not acknowledged: "A rage for paper money, for an abolition of debts, for an equal division of property, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State" (p. 96).

In No.s 39 and 48 he outlines some of the principles of the federal system and when it impacts the states (federal) and when it will impact the people directly (national) and outlines the importance of "separation of powers" and the dangers of legislative tyranny if too much power is concentrated in one branch of government.


In No. 51 he again outlines the dangers of factions and again suggests that the diversity of society will reduce the influence of factions. This is called "pluralism" today and is still dominant in American politics:

Whilst all authority in it will be derived from and dependent on society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of the individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of the country and number of people comprehended under the same government.

The last selection from Madison's letters deals with the infamous 3/5 compromise in the Constitution. Since the number of people in your state influences the number of representatives your state gets, Southern politicians hypocritically thought to count slaves as people, in order to increase their representation without of course granting any political rights to slaves. Northerners, hardly more moral, objected that slaves are property not people, and should not be counted. The "rational" compromise was to count slaves as 3/5 of a person, and is found in the Constitution as I said in the previous lecture.



85 articles were written altogether. Madison wrote 29, Hamilton wrote 51 (Jay wrote five and is hardly mentioned).

Hamilton’s articles 
Alexander Hamilton
are focused on pointing out the weaknesses of the present government under the articles of Confederation, and advocating the stronger national government, or in Hamilton’s terms, "energetic government," that he argues is the design of the Constitution.

No. 78 is an early defense of the principle of "judicial review" that gives power to the Supreme Court, to strike down laws, or other actions, that contradicts the Constitution. This concept would not be practiced by the judicial branch until the landmark Supreme Court case Marbury v. Madison in 1803.

What were the flaws of the government under the Articles of Confederation that Hamilton was specifically concerned with? Why was a strong national government the solution to the problems that Hamilton saw? Consider the following quote by Hamilton from no. 15, “Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged", another way of stating the idea of checks and balances: power checks power.

In Federalist 23, Hamilton says this about the Union, the term used to describe the national government as representing all the states together: “The principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.” 


“Internal convulsions” is most likely a reference to Shay’s Rebellion, an uprising of farmers in Massachusetts in 1786 protesting the high levels of debt they incurred, many of them war veterans, and whose houses were being foreclosed on.

Hamilton was less restrained about using military force than most of the other founders, even George Washington. Consider this quote also from Federalist 23: 
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means to which may be necessary to satisfy them [Hamilton’s italics].

In Federalist 78, Hamilton gives his argument for judicial review. He says:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of 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; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Also: 
A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

How does this relate back to the idea of separation of powers and checks and balances, which define the American system?

Although Hamilton invokes “the people” to justify the power of the courts over the legislature, the courts were often times used to strike down laws that were seen as hurtful to business interests. Since the legislature was more democratic there were fears that popular interests would pass laws to redistribute wealth or tax profits more.




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