federalist papers liberty

• History Classics
• Your Profile
• Find History on Facebook (Opens in a new window)
• Find History on Twitter (Opens in a new window)
• Find History on YouTube (Opens in a new window)
• Find History on Instagram (Opens in a new window)
• Find History on TikTok (Opens in a new window)
• This Day In History
• History Podcasts
• History Vault

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.

HISTORY Vault: The American Revolution

Stream American Revolution documentaries and your favorite HISTORY series, commercial-free.

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. 

Sign up for Inside History

Get HISTORY’s most fascinating stories delivered to your inbox three times a week.

By submitting your information, you agree to receive emails from HISTORY and A+E Networks. You can opt out at any time. You must be 16 years or older and a resident of the United States.

More details : Privacy Notice | Terms of Use | Contact Us

Federalist: A Reader’s Guide

• Hamilton , Madison , Jay
• Topic: US Revolution & Constitution

Source: In The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001) .

Reader’s Guide to The Federalist

Advantages of a more perfect union.

In Federalist No. 1, Publius sets the tone for the essays that follow by emphasizing the urgency and uniqueness of the situation facing the American people, as well as the magnitude and significance of the choice confronting them. He pictures this choice in transcendent terms: It is for the American people to determine “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.” What is more, he writes, a “wrong election” on their part would “deserve to be considered the general misfortune of mankind.”

Publius warns his readers that those who would seek to persuade them one way or the other with regard to ratification may be motivated by ambition, greed, partisanship, or simply mistaken judgment. In particular, he cautions, the people should be on guard against demagogues who preach against the proposed Constitution in the name of the people. They speak zealously of the need to protect rights but forget that weak government can be just as much a threat to liberty as one that is too strong. Indeed, Publius contends, “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearances of zeal for the firmness and efficiency of government. History will teach us, that the former has been found a much more certain road to the introduction of despotism, than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career, by paying an obsequious court to the people . . . commencing demagogues and ending tyrants.”

Persuaded that it would be in the best interests of the American people to adopt the Constitution, Publius promises that he will be candid and truthful in presenting his arguments. He discloses the subjects he will cover, beginning first with a discussion of the advantages to be gained by forming a more perfect union. To this end, in Federalist No. 2, he stresses that the Americans are already “one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and opinions, and who, by their joint counsels, arms and efforts, fighting side by side through a long and bloody war, have nobly established their general liberty and independence.” The need now, he informs his readers, is for a stronger, more effective central government to preserve and perpetuate the Union. Indeed, he writes, every national assembly, from the First Continental Congress down to the Federal Convention, has “invariably joined with the people in thinking that the prosperity of America depended on its Union.”

Publius argues in essays 3 and 4 that one clear and obvious advantage of having closer ties among the States is greater national security. He points out that a more unified country is better able to defend itself against foreign invasion and intrigue and that diplomatic relations with foreign nations can best be handled by a national government speaking for the whole people, not by the several States or “by three or four distinct confederacies.” He goes on to note (No. 5) how the Act of Union, which strengthened Great Britain by uniting England and Scotland, provides us with “many useful lessons” on the advantages of unification.

In Federalist No. 6, Publius points to the history of internecine wars and petty squabbles in ancient Greece and Europe to emphasize the dangers of confederacy. He condemns “idle theories” which suggest that “commercial republics” will be immune to these dangers. It is not unrealistic to suppose, he suggests in Federalist No. 7, that in time the several States might also be warring among themselves over territorial and commercial differences, the public debt, or paper money laws which deprive creditors of their property rights. The present circumstances are such, Publius concludes in Federalist No. 8, that America does not need extensive military fortifications. But if America were disunited, he admonishes, “Our liberties would be prey to the means of defending ourselves against the ambition and jealousy of each other.”

Of particular importance in these early essays are Nos. 9 and 10, wherein Publius defends the political principles upon which the proposed Constitution is based. In No. 9 he maintains that an improved “science of politics” provides a cure for the “rapid succession of revolutions” which plagued “the petty republics of Greece and Italy” and “kept” them “perpetually vibrating between the extremes of tyranny and anarchy.” Among the improvements he mentions are the doctrines of separation of powers and “legislative balances and checks,” judicial independence, and “the representation of the people in the legislature, by deputies of their own election”—the republican principle. The “enlightened friends of liberty,” he asserts, have woven these principles into the new Constitution. Moreover, by establishing a “ Confederate Republic ” they have combined the advantages of energetic government with those of republican government over an extensive territory.

In No. 10, the most widely read of all the essays, Publius continues to respond to the charges of the Anti-Federalists who, citing Montesquieu, contend that a stable and enduring republic is possible only over a confined territory with a small population possessing the same interests. He explains how the conditions associated with extensiveness will operate to cure the disease of majority factions—i.e., majorities “united and actuated by some common impulse of passion, or of interest, adverse of the rights of other citizens, or to the permanent and aggregate interests of the community”—which have caused the demise of earlier small republics. He envisions the election of representatives “whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to partial considerations.” Moreover, he holds that in the extensive republic under the proposed Constitution there will be a multiplicity and diversity of interests which will render it unlikely that “a majority of the whole will have a common motive to invade the fights of other citizens.” Thus, he sees representation coupled with numerous and diverse interests controlling the effects of “faction.”

In Federalist No. 11, Publius argues that a stronger Union among the states would be commercially advantageous. A loose confederation of wholly independent States, he suggests, invites commercial weakness, European control of American markets, and domestic jealousies. A strong Union, he adds, would also make it possible for the American people to create a navy and a merchant marine and improve navigation for the protection of American commercial interests.

Likewise, he contends in No. 12, the new union will promote “the interests of revenue.” Simply increasing taxes, he points out, will not fill the empty treasuries of the State and national governments. “It is evident,” he writes, “from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation.” Noting that taxes on land, wealth, or consumption are either unpopular with the people or extremely difficult to administer, he maintains that the main source of revenue for the foreseeable future will be the collection of duties on imports. One national government, he observes in Federalist No. 13, would be far more economical and efficient in collecting these duties than separate confederacies or independent states.

Federalist No. 14 offers a summary of the preceding essays, with particular emphasis on the meaning, importance, and application of the “republican” principle embodied in the new Constitution. Publius concludes by noting the continuity between the ideals and spirit of the American Revolution and the present struggle for a new government. The Framers of the new Constitutions are, he suggests, simply improving and perpetuating the goals of the American Revolution and the early constitutional systems that arose from it.

Weaknesses of the Existing Confederation

Publius begins his discussion of the second topic of his outline, “the insufficiency of the present Confederation to preserve . . . [the] Union,” in Federalist No. 15. In this paper he asserts that the people of the United States under the Articles of Confederation “may indeed, with propriety, be said to have reached the last stage of national humiliation. . . . There is scarcely anything that can wound the pride, or degrade the character, of an independent people, which we do not experience.”

Publius explains why the situation is so desperate. The “great and radical” defect of the government under the Articles, he maintains, is that it must legislate for States, not individuals. Such a practice, he charges, allows each of the States to subvert, undermine, and even ignore the laws of the general government and fails to take account of the “spirit of faction” and the “love of power.” Thus, he believes it imperative that the authority of the national government operate upon individuals, “the only proper objects of government.”

In Federalist No. 16, he continues his attack on the “great and radical vice” of the Articles—that it legislates for States, not individuals. While noting that a resort to force has resulted in the “violent death” of such confederacies in the past, he believes that the confederacy under the Articles will undergo a more “natural death”—a gradual and peaceful collapse through the general noncompliance of its members. The solution to the problem is to vest the national government not only with the authority to operate directly upon individuals, but also with the capacity to impose sanctions, if necessary, through the “courts of justices” in order to obtain compliance with its laws. Under this arrangement, he observes, the States could subvert the execution of national laws only through an “overt” act in violation of the Constitution, an unlikely occurrence, in his view, save in the case of a “tyrannical exercise” of national power.

Understandably, Publius has to turn his attention to answering the charges of the Anti-Federalists that such a powerful national government will swallow up the States. This he does in Federalist No. 17. Those in charge of the broad and general responsibilities of the national government, he argues, will have no need or desire to encroach upon the residual powers of the states. Thus, there is unlikely to be any clash of basic interests between the two levels of government. The national government will be dealing with national issues relating to “commerce, finance, [treaty] negotiation, and war,” whereas the states will be concerned with matters involving the “administration of private justice,” the “supervision of agriculture, and of other concerns of a similar nature.” Moreover, he continues, if the national government were to encroach upon the States’ residual powers, the States and local governments, being closer to the people, would be more than a match for the national government. Indeed, in his view, State encroachment on the national government “will always be far more easy” than national encroachment on the State authorities.

Intent upon illustrating the basis for his views on the “great and radical vice” of the Articles, Publius examines the histories of ancient and modern confederacies in Federalist Nos. 18, 19, and 20. In the first of these essays, he surveys the structure, workings, and eventual disintegration of the major confederacies of ancient Greece. He suggests there are parallels between these confederacies and the condition of the States under the Articles of Confederation, and sees a lesson to be learned from the fact that foreign intervention and internal dissensions among the member States, rather than oppression on the part of the central governments, were primarily responsible for their demise. In Federalist No. 19 he turns to more modern confederacies, devoting most of his attention to the history, development, and status of the Germanic empire. Here again he finds a weakness and disunity fostered by a lack of central authority over the member states. Continuing with his analysis of modern confederacies in Federalist No. 20, he examines the United Netherlands, racked by dissension, “popular convulsions,” and “invasion by foreign arms.” He concludes this essay by emphasizing once again an “important truth” to which the experience of the United Netherlands amply attests: “a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals; as it is a solecism in theory, so in practice, it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword, in place of the mild and salutary coercion of the magistracy .”

In the final two essays of this section (Nos. 21 and 22), Publius concentrates on other weaknesses of the Articles. In Federalist No. 21 he deals with the want of “ Sanction ” or means of enforcement of the laws passed by Congress; the absence of a “mutual guaranty of the state governments” which would allow the national government to intervene in cases of rebellion against the duly constituted state governments; and the lack of any just or satisfactory principle or standard for determining the “ Quotas ” or contributions of each State to the national treasury. In Federalist No. 22, he remarks on the want of authority under the Articles to regulate interstate commerce and the lack in them of any workable means to raise an army.

He then concentrates on both the structural and the procedural defects of the Articles. Equality of State suffrage in the Congress, coupled with the need to secure the approval of nine States for the passage of a law has, he asserts, created a situation that allows for a minority veto, contrary to the republican principle of majority rule. Moreover, he notes, the absence of the States from Congress has often resulted in a “single vote” being sufficient to block action. He regards “the want of a judiciary power” to be “a circumstance which crowns the defects of the Confederation.” Anticipating arguments he will later develop with regard to the separation of powers, he contends that the powers necessary for an effective national government cannot be vested in a single legislative body. To do so would either cause its breakdown or, if not that, an accumulation of power in one body that would amount to tyranny. Finally, he emphasizes the importance of having a popularly based Constitution, noting that, under the proposed Constitution, the new government, unlike the Articles, will rest on the consent of the people.

Powers That Should Be Exercised by a National Government

Federalist essays 23 through 36 are devoted to showing that the powers delegated to the national government by the proposed Constitution are necessary for a government that is to overcome the difficulties inherent in the Articles and to preserve the Union. At various places, Publius also endeavors to show that the powers delegated to the national government, particularly those relating to the national defense and taxation, will pose no dangers to the existence of the States or the liberties of the people.

In paper No. 23, Publius sets forth a proposition that he repeats throughout The Federalist to justify the powers delegated to the national government—namely, that “the means ought to be proportioned to the end.” If, that is, the national government is charged with a responsibility, it must possess the unfettered authority to discharge that responsibility. In the case of the national defense, he concludes that the powers of the national government must be virtually unlimited, because the means of defense depends upon factors and circumstances that cannot be fully anticipated.

Publius applies this reasoning in Federalist No. 24 in answering the objections of many Anti-Federalists that the proposed Constitution contains no provision against a standing army in times of peace. A constitutional prohibition against a standing army in time of peace, he points out, would be most inappropriate and imprudent, particularly in light of the nation’s western land interests and the need to protect its naval facilities. But his response to the Anti-Federalists does not rest upon this ground alone. He notes that only two States have such provisions against standing armies in their constitutions and that, moreover, there is no such provision to be found in the Articles. Beyond this, he can see no need for any such provision, given that the proposed Constitution places the authority for raising armies in the hands of the representatives of the people, thereby providing a check on the military establishment.

In essay No. 25, Publius completely rejects the proposition that the state governments ought to assume the functions performed by a national standing army. This, he writes, would constitute “an inversion of the primary principle of our political association; as it would in practice transfer the care of the common defence from the federal head to the individual members: a project oppressive to some states, dangerous to all, and baneful to the confederacy.” He envisions any such arrangement as subjecting the security of the whole to the willingness of the parts to fulfill their obligations; he can imagine how rivalries might even develop among the States that could eventually lead to the disintegration of the Union; and he maintains that the more powerful States might pose a danger to the existence of the national government.

In Federalist Nos. 26 through 29, Publius focuses on still other aspects of the controversy surrounding standing armies in time of peace. In No. 26, for instance, he points to the reasonableness and appropriateness of the constitutional provision (Article 1, Section 8, Paragraph 12) which limits appropriations for raising and supporting an army to two years—a provision which, he argues, meets the requirements of national defense while preventing the potential evils that can arise from a permanent standing army. In a more philosophical vein, he touches upon a basic theme that recurs throughout the essays: that the concern for private rights and liberty must always be balanced against the imperative need for an energetic government, one capable of defending the nation against foreign and domestic enemies. In addition, he emphasizes that any successful conspiracy or scheme to usurp the liberty and rights of the people through force of arms would require time to develop and mature, a virtual impossibility given the accountability of the members of Congress and the anticipated vigilance of the States.

Publius makes clear (No. 27) that he does not anticipate the national government’s having, as a matter of course, to resort to the use of force to execute its laws. Indeed, he believes, force will rarely be required once the proposed system is put into operation. As soon as the operations of the national government become part of the ordinary life of its citizens, their attachment to it will grow. Even State officers will find themselves integrated into the national system through their obligation to uphold legitimate national laws. Nevertheless, Publius does acknowledge (No. 28) that there will be circumstances which will require the use of national force. He again remarks, however, that the vigilance and potential resistance of State governments “afford complete security against invasions of the public liberty by the national authority.” Nor does he see (No. 29) that national control over the State militia will pose any threat to the liberties of the people or the security of the States. Among the reasons for this, he maintains, is that the vast majority of the militia will consist of ordinary citizens whose attachment to the community will not allow them to participate in any plot to subvert popular rights and liberties.

Starting with Federalist No. 30, Publius devotes seven papers to a discussion of the national taxing power and its relationship to the taxing powers of the States. At the outset, he makes it clear that the national government must possess unfettered authority to raise revenue in order to fulfill its constitutional responsibilities. Repeating the line of argument used in No. 23, he argues that “every Power ought to be proportionate to its Object ” and that to restrict the national government to “external” taxation—that is, to “duties on imported articles”—would be disastrous, because it is impossible to foretell with certainty what the future needs of the national government might be. In Federalist No. 31, he again emphasizes that the national government must possess a power to tax commensurate with its responsibilities—a power “free from every other control but a regard to the public good and the sense of the people.”

Publius is also anxious to show that the national government’s power to tax will not lead to the extinction of the States. By way of answering those who contend that vesting the national government with an “indefinite power of taxation” will “deprive . . . [the States] of the means of providing for their own necessities,” he answers (No. 31) by pointing out the impossibility of dealing rationally with the infinite “conjectures about usurpation” which spring from the unwarranted fears of the Anti-Federalists. In Federalist No. 32, he takes pains to point out that the States “clearly retain all the rights of sovereignty” that were not “exclusively delegated” to the national government, prohibited to them, or whose exercise would be “totally contradictory and repugnant” to the exercise of delegated national powers. Thus, he shows that, save for duties on imports, the States possess a concurrent and discretionary power to tax the same sources as the national government. He demonstrates (No. 33) that the “necessary and proper” clause cannot be used to deprive the States of their powers to tax. Any law “abrogating or preventing the collection of a tax laid by the authority of a State (unless on imports and exports) would not be the supreme law of the land, but an usurpation of a power not granted by the Constitution.” Finally, in essay No. 34, he rejects the idea that there is need for a constitutional division of the sources of revenue between the State and national governments to ensure sufficient revenues for the States. Such a division, he warns, might prevent the national government from fulfilling its critical responsibilities. Moreover, he cannot see any division of the sources of revenue that would not leave the States with either “too much or too little” relative to their needs.

In the final two essays (Nos. 35 and 36) of this section, Publius takes up and answers Anti-Federalist objections that the House of Representatives will not be able to produce an equitable system of taxation because it will not be large enough to reflect the diversity of interests in the nation. While he holds (No. 35) that the representation of all classes of people is both “unnecessary” and “altogether visionary,” he firmly believes that the classes that will dominate—“landholders, merchants, and men of the learned professions”—will have a sufficient understanding and sympathy with the various interests of society to produce an equitable system for revenues. In this respect, he envisions those from the “learned professions” adjudicating whatever differences might arise between the “different branches of industry” in a fashion consistent with the general welfare. In addition, he rejects (No. 36) the charge that the Congress will not have sufficient knowledge of local circumstances to formulate effective and equitable taxation policies. He notes that the information needed for this purpose can easily be obtained with respect to the imposition of indirect taxes, such as import duties and excise taxes. As for direct taxes, such as those on real property, he maintains that the system used by the individual States can readily be “adopted and employed by the federal government.”

Why the Proposed Constitution Conforms with the Principles of Republicanism and Good Government

The general form of government.

Federalist Nos. 37 through 40 discuss concerns of a general nature. No. 37, for instance, is perhaps the most philosophical of all the essays. Here Publius (Madison) provides an overview of the complexity and enormity of the task confronting the Founding Fathers at the Philadelphia Convention. He comments on the “novelty of the undertaking”; the difficulties of marking out the divisions between the departments of government, as well as those surrounding the division of authority between the State and national governments; and the delicate task of providing for the proper balance between energy and stability necessary for an effective and stable government without infringing upon liberty or violating the principles of republicanism.

After stressing the enormous obstacles that must be faced in establishing a new government by pointing to examples from ancient history (No. 38), Publius proceeds to castigate the Anti-Federalists for compounding these difficulties. He notes the lack of consensus among them about what is wrong with the proposed system and their clamor for amendments before the proposed system has even had a chance to operate. He faults them for quibbling over supposed defects in the proposed Constitution while ignoring the highly dangerous and unbearable political situation under the Articles.

In essay No. 39, Publius takes up two highly important concerns. First, he sets forth the “true principles” of republicanism, which call for direct or indirect control over government by “the great body of the society, not from an inconsiderable proportion, or favoured class of it.” Second, he undertakes to answer Anti-Federalist critics who charge that the proposed Constitution calls for a consolidated, national, or unitary government that does not conform to the principles of federalism. He examines the proposed system from five different vantage points and concludes that it is neither wholly national (unitary or consolidated) nor federal (confederate) but a “composition of both.”

Finally, in Federalist No. 40, Publius takes up and attempts to answer the charge—one that has endured over the decades—that the members of the Constitutional Convention exceeded their authority by drafting an entirely new constitution instead of simply revising the Articles, as they had been instructed to do. He answers by arguing that the delegates appropriately accorded priority to that part of their mandate which instructed them to provide for a government capable of preserving the Union and meeting its needs. Such a government, he maintains, simply could not be fashioned through any conceivable revision of the Articles.

The Powers of Government

Publius indicates at the outset of his discussion of the powers of the proposed national government that two questions are uppermost in his mind: first, whether any of the powers delegated to the national government are “unnecessary or improper,” and second, whether these powers will pose dangers to the authority of the States. To answer the first question he surveys (Nos. 41 through 44) the powers of the national government under six categories: defense; commerce with foreign nations; relations between the States; “miscellaneous objects of general utility”; restraints upon the States; and “provisions for giving due efficacy” to the foregoing powers. He answers the second of these questions, regarding foreign commerce, in the last two essays (Nos. 45 and 46).

In his discussion of the common defense (No. 41), Publius again warns of the danger and futility of trying to limit the powers of the national government. “The means of security,” he writes, “can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules and by no others.” At the same time, he rejects the notion that the “general welfare” clause vests the national government with undefined powers. In No. 42 he justifies the powers delegated to the national government on various grounds. He notes, for instance, that few would question the propriety of the national government’s conducting foreign relations, the need for some superintending authority to regulate commerce among the States, or the convenience of general laws regarding naturalization. Likewise, in No. 43 he points to the need or at least the desirability of giving “miscellaneous powers” to the national government, which include provision for the admission of new States, national control over the seat of government, and the guarantee of a republican form of government for each State.

Relatively little controversy surrounds the powers Publius surveys in Federalist Nos. 41–43. However, the Anti-Federalists were greatly concerned about the “necessary and proper” clause (Article 1, Section 8, Paragraph 18) and the extent to which the national government might use this provision to enlarge its powers at the expense of the States. Publius turns his attention to this clause in No. 44, where he argues that even if the Constitution had contained no such provision, the national government would, “by unavoidable implication,” still possess the power to pass laws “necessary and proper” to execute its expressly delegated powers. Once again, Publius emphasizes that the means must be apportioned to the ends: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.” He points out, however, that if the national government were to overextend its authority and do that which is unnecessary or improper, the people can “annul the acts of the usurpers” through the “election of more faithful representatives.”

Publius’s discussion of the “necessary and proper” clause provides the backdrop for his discussion (essays 45 and 46) of the second question—that is, whether the powers of the national government threaten the States. In No. 45, he advances the opinion that in contests between the States and national government over the extent of their respective powers, the State governments will enjoy an inherent advantage. In both Nos. 45 and 46, he sets forth in detail the reasons why he holds this position. He does concede (No. 46) that “manifest and irresistible proofs of better administration” on the part of the national government can operate to overcome these inherent State advantages. However, he is adamant in maintaining that any infringement on popular liberties through unwarranted intrusions of the national government would be met by stern opposition on the part of the States—an opposition that “the federal government would hardly be willing to encounter.”

The Separation of Powers

The first sentence of Federalist No. 51 provides a convenient point of departure for understanding those essays (Nos. 47 through 51) devoted to the principle of the separation of powers. In this sentence Publius asks: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution?” Publius strongly believes it is necessary to maintain the separation of powers provided for in Articles I, II, and III of the proposed Constitution. In No. 47, he indicates in no uncertain terms why it is necessary to maintain this partition. Echoing the accepted wisdom of that period, he writes that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” By tyranny, as he makes clear by quoting from Montesquieu, he means arbitrary, capricious, and oppressive rule by those possessing any two of these powers. Thus, he believes that for the proposed Constitution to succeed it is imperative that no one branch be able to exercise the whole power of another.

In the remaining papers in this group, Publius sets out to canvass the means by which the departments can be kept separate in order to prevent tyranny. In the first of these (No. 48), he inquires whether “parchment barriers” or written provisions in the Constitution to the effect that each department should stay within its own sphere would be sufficient to maintain the separation. In answering this question, he emphasizes that the legislature is most to be feared because it “is every where extending the sphere of its activity and drawing all power into its impetuous vortex.” For this reason, he urges the people “to indulge all their jealousy, and exhaust all the precautions” against this branch of government. Noting that the legislature possesses so many means and pretexts for aggrandizing the powers of the other branches, and mindful of difficulties experienced by some State governments, he concludes that a delineation of powers of the branches in the constitution will not, by itself, serve to prevent a “tyrannical concentration” of powers.

He next turns his attention (No. 49) to a critical examination of Jefferson’s proposal for keeping the branches within their proper spheres. The Jefferson plan called for appeals to the people whenever two-thirds of the membership of two branches of government so requested. Upon such an appeal a popularly elected convention would meet to resolve the conflict. Aside from certain technical difficulties that he notes, Publius finds the plan seriously deficient from a theoretical point of view. He believes that such occasional appeals to the people over constitutional questions would, particularly if frequent, serve to undermine popular “veneration” of the government in that they would suggest serious defects in the system. The favorable opinion of the people upon which the authority of government ultimately rests would then, he maintains, suffer a serious, if not complete, erosion. Moreover, passions would be aroused over these constitutional matters, thereby disturbing the “public tranquillity” and the very stability of the constitutional order. But the “greatest objection,” in his mind, is that the legislature is most likely to encroach on the other branches and that its members, because of their influence and popularity with the people, would most likely be the members of any convention elected to redress the alleged violations. Consequently, the legislators would be the judge of their own cause. But even if this were not the case, Publius argues that “passions,” not “reason,” would most likely prevail in these conventions.

Publius then considers (No. 50) whether periodic appeals to the people at fixed intervals might serve the purpose of maintaining the necessary separation of powers. Again he sees fatal flaws in any such scheme. If the appeals occur too close to the time of the alleged infraction, they will be attended with all the “circumstances” which “vitiate and pervert the result of” occasional appeals. And if the interval between the appeal and the alleged transgression is a long one, he sees good reasons why the appeal is not likely to serve its purpose: the prospect of distant censure will not restrain those bent upon aggrandizement; the transgressors might have already accomplished their ends, thereby rendering the remedy superfluous; or the transgression may, in the interval, have taken “deep root” so that it cannot be remedied. He notes that the experience of Pennsylvania with its Council of Censors bears out his observations concerning the ineffectiveness of this barrier.

Having rejected paper barricades, and occasional and periodic appeals, Publius proceeds in Federalist No. 51 to set forth his solution to the problem of maintaining the necessary constitutional separation. “The only answer,” he contends, consists in “contriving the interior structure of government” so that the departments “by their mutual relations” will keep “each other in their proper places.” This, in turn, requires “giving to those who administer each department, the necessary constitutional means, and personal motives, to resist the encroachment of others.” After noting that the “compound” nature of the republic with “two distinct governments” controlling each other will provide a “double security . . . to the rights of the people,” he concludes this essay by reformulating the arguments used in his Federalist No. 10 to show how the extended federal republic, with its multiple and diverse interests, will render the formation of majority factions “improbable, if not impracticable.” He reasserts the proposition “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.”

The House of Representatives

With Federalist No. 52, Publius begins his examination of the specific institutions of the proposed Constitution: the House of Representatives, the Senate, the executive, and the judiciary. This survey runs through No. 83, or all but the last two essays of the volume.

Essay No. 52 is also the first of ten devoted to describing and explaining the constitutional provisions and features of the House of Representatives. In this particular paper, Publius remarks on the propriety of the constitutional provisions relating to the qualifications for voting for members of the House and the qualifications for membership in this chamber. He then takes up the more controversial matter of whether the two-year term for members of the House will endanger the liberties of the people. Surveying the experiences of Great Britain and Ireland but particularly those of the States, he concludes that biennial elections pose “no danger” to liberty.

Publius resumes his discussion of the appropriateness of a two-year term (No. 53) by taking up and debunking the notion “that where annual elections end, tyranny begins.” In this endeavor, he explicitly sets forth for the first time the American doctrine of constitutionalism, which holds that a constitution, resting on the consent of the people, is “unalterable by the government” it creates. The major portion of the essay deals with the necessity and utility of two-year terms. On this score, he emphasizes the need for representatives to have sufficient time to acquire “the knowledge requisite for federal legislation.”

Publius next (No. 54) confronts the matter of apportioning representatives among the States according to population and, specifically, to the matter of counting slaves as three-fifths of a person. Speaking through the medium of “one of our Southern brethren,” he offers up the reasons for the three-fifths “compromise” that emerged from the Philadelphia Convention. Among those he cites are that the laws regard slaves as both property and persons; that the Southern States would regard it as inequitable to count slaves for purposes of taxation but not for representation; and that there should be some allowance for the comparative wealth of the States in apportioning seats. Though conceding that this reasoning is “a little strained in some points,” he finds that, taken as a whole, it “fully reconciles” him to the compromise. He concludes this essay by noting that the “common measure” for purposes of representation and taxation will render it unlikely that the States will attempt to distort their actual populations. That is, the disposition to reduce the number of inhabitants for purposes of taxation will be counteracted by the potential loss of representatives.

With Federalist No. 55, Publius begins a series of four papers that deal with four major criticisms that have been leveled against the House of Representatives regarding its composition and capacity to represent the people. This paper is concerned with the question of size and whether the House—initially to consist of only sixty-five members—is a safe “depository of the public interests.” Noting that there is no exact formula for determining the proper size of a legislative assembly, he maintains that the number must be sufficient for purposes of “consultation and discussion” and to prevent cabals. On the other hand, he emphasizes that it must also be limited “in order to avoid the confusion and intemperance of a multitude.” In this connection, he writes, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” As for the question of whether the size of the House renders it a safe depository, he observes that the size of the body will increase with anticipated increases in population. Moreover, he cannot conceive of this body, subject to election every two years, as betraying the trust of the people. The essay concludes with one of his few statements concerning the relationship between virtue and republican government. Republican government, he remarks, “presupposes” qualities of human nature “which justify a certain portion of esteem and confidence . . . in a higher degree than any other form.”

In answering the second charge (No. 56), that the House will be “too small to possess a due knowledge of the interests of its constituents,” Publius has recourse to an argument very similar to that advanced in No. 10, namely that information relevant for national purposes, which are general in nature, can be conveyed by a relatively few individuals. The major task of representatives, as he views it, will be to assimilate the information they acquire from other representatives concerning conditions in other States and locales. Over time, however, he sees the interests within the States as becoming more numerous and diverse, while the differences between them in terms of interests will diminish.

To the charge that those elected to the House will have “least sympathy with the mass of the people” and will “be most likely to aim at an ambitious sacrifice of the many, to the aggrandizement of the few,” Publius recurs in paper No. 57 to the republican foundations of the system as set forth earlier in essay No. 39. He points out that the electors of the representatives are “to be the same” as those who elect members to the popular branch of the State governments and that the objects of popular choice are not constitutionally limited by requirements of wealth, profession, or religious affiliation. Beyond this, he sees various circumstances—chief among them frequent elections, along with the fact that representatives cannot pass laws that will not apply to themselves, their family, and friends, as well as their constituents—as forging a genuine bond of affection between the representatives and their constituents.

To the fourth and final charge, that “the number of members” in the House of Representatives “will not be augmented from time to time, as the progress of population may demand,” he observes (No. 58) that no serious problems on this score have been encountered at the State level. Moreover, he does not foresee how a coalition of the small States would be able to prevent periodic augmentations in the size of the House. Among the reasons he cites is that the House, with the people on its side, and vested with the power of the purse, will be more than a match for the Senate or president should they attempt to thwart any increase. However, Publius takes pains to repeat his earlier concerns about an excessively large representative assembly. Any number beyond that necessary for providing “local information,” of ensuring “diffusive sympathy with the whole society,” or for “purposes of safety,” he argues, might well lessen the republican and deliberative character of the assembly.

The final three essays devoted to the House of Representatives deal with the necessity and desirability of national control over elections for national offices as set forth in Article 1, Section 4 of the Constitution. These essays constitute a break between his survey of the House and his examination of the Senate.

Publius begins (No. 59) by defending national regulation of elections to national office as vital for the preservation of the national government. He maintains that if this function were to be exercised by the States, it would leave the national government at their mercy. While recognizing that the State legislatures can refuse to elect senators, he does not regard this a warrant for more extensive State control. However, he does believe that State control over House elections could lead to a crisis. In responding to Anti-Federalists who maintained that the national government might use its regulatory power to manipulate elections in order “to promote the election of some favourite class of men,” Publius answers (No. 60) that neither the people nor the States would ever stand for any such discrimination. Moreover, he regards any plan to favor “the ‘wealthy and well born’” as impracticable, because these classes are randomly distributed throughout the nation. Finally, in Federalist No. 61, he responds to the criticism that the Constitution is deficient because it contains no provision specifying the time and place of national elections. He answers by pointing out that neither the New York nor any of the other State constitutions contain such specifications, and that there have been no ill effects. He goes on to point out some of the positive advantages that will flow from the national government’s fixing a uniform time of election. Most importantly, he argues, it will ensure that the entire membership of the House will simultaneously be subject to control by the people.

The Anti-Federalists viewed the Senate with mixed emotions. The vast majority favored a second chamber, and most were pleased that the States were accorded equality of representation. Yet many voiced strong criticisms of its powers, composition, and relationship to the executive branch. Beginning with essay No. 62, Publius devotes five essays to answering the most common criticisms of the Senate and to pointing out what role he anticipates it will play in providing for stable government free from the ravages of faction.

In this first paper, Publius deals with the qualifications for election to this chamber, the mode of election, and equality of State representation. He also begins his discussion concerning its size and term of office by inquiring “into the purposes which are to be answered by a senate.” Notable in this paper is his lukewarm defense of equal State representation in the Senate and his detailed analysis of the contemplated role of the Senate. Equality of representation, he maintains, is the result of a necessary compromise that “may prove more convenient in practice, than it appears to many in contemplation.” However, he views the Senate as indispensable in checking the potential excesses of the House, as well as in ensuring sound, well-conceived legislation. He is most emphatic in stressing the role of the Senate in curing the poisonous effects, both internal and external, of an “unstable government” that produces “mutable” policies.

In Federalist No. 63, Publius continues his discussion of the role of the Senate in promoting stability. It will provide, he maintains, “a sense of national character” necessary for the respect of foreign nations and the orderly conduct of international relations. He observes that the Senate, because of its stability and continuity, will also be more inclined than the House to take the successive steps sometimes necessary for the implementation of long-range goals and policies. But the bulk of the essay is devoted to a discussion of the Senate as an institution that can prevent oppressive and unjust majorities from ruling. The Senate, he argues, can serve to check such factions “until reason, justice, and truth can regain their authority over the public mind.”

Publius next examines (No. 64) the role of the Senate in the treaty-making process. He emphasizes its stability, as well as the intelligence, knowledge, and character of its members, that render the body suitable for this purpose. However, the essay is most notable for delineating a significant and distinct role for the president in the area of treaty negotiations. Noting that “secrecy” and “despatch” are often necessary, he praises the proposed Constitution for allowing the president sufficient latitude to take advantage of changing circumstances and to maintain secrecy in the negotiation process. In answering major criticisms of this process, he stresses that treaties, viewed as “bargains” between nations, have a different character from ordinary legislation, because the consent of the contracting parties to the treaty is necessary “to alter or cancel them.” He cannot foresee the process being abused, largely because the president and members of the Senate, as well as “their families and estates,” will be bound by the terms of treaties to the same extent as ordinary citizens.

The final two essays (of the next twenty by Hamilton) dealing with the Senate are concerned with its role in the impeachment process. The main issue discussed in No. 65 is the propriety of vesting the Senate with the power to try those impeached by the House of Representatives. Though Publius can see merit in having a “court for the trial of impeachments . . . distinct from” the regular departments of government, he notes practical difficulties and the “heavy expense” that would attend any such arrangement. In Federalist No. 66, he takes up a detailed defense of the role of the Senate in the impeachment process. The constitutional provisions, he argues, do not violate the separation of powers principles. Nor does he believe that the Senate’s role in the appointment or treaty-making processes, which it shares with the president, will inhibit it from removing culpable individuals from office.

The Presidency

With Federalist No. 67, Publius begins an eleven-essay survey of various aspects of the presidency. In the opening essay, he strives to dispel the charge leveled by many Anti-Federalists that under the proposed Constitution the president will have an authority and status akin to that of the most powerful monarchs. Such a depiction he regards as utterly without foundation. To illustrate the absurdity of these charges, he refutes the claim that the president may fill “casual vacancies in the senate.”

After setting forth (in No. 68) the virtues of the electoral college for electing a president—a process that “affords a moral certainty, the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”—Publius explores (No. 69) the “real character of the proposed executive” by comparing his status and powers with those of the king of Great Britain and the governor of New York. To counter the charge that the president is little more than an “elective king,” he discusses his term of office, his liability to impeachment and removal, his participation in the legislative process, his powers as commander-in-chief, and his powers of appointment and treaty making. He concludes that it is questionable whether the president’s authority even exceeds that of the governor of New York, but that, in any event, “there is no pretence for the parallel which has been attempted between him [the president] and the king of Great Britain.”

Nevertheless, Publius does emphasize the need for energy in the executive to secure the blessings of good government and liberty. In Federalist No. 70, he identifies four ingredients of an energetic executive: “unity; duration; an adequate provision for its support; [and] competent powers.” In the remaining essays on the presidency he deals with these ingredients, beginning first with the need for “unity.” On this score he maintains that both reason and experience clearly speak against having plural executives or an executive council. He argues strenuously and at length against the idea of a council whose concurrence would be required for the exercise of executive functions. Such an arrangement, he observes, would make it difficult, if not impossible, for citizens to fix responsibility for fraud, misconduct, and incompetence. Moreover, he concludes, this lack of accountability would render any such council a greater threat to liberty than would a single executive.

In discussing “duration” (No. 71), the second ingredient of an energetic executive, Publius defends the four-year term of office as contributing to the firmness of the executive, a firmness that would allow the executive to block oppressive and unjust measures in order to give the people the “time and opportunity for more cool and sedate reflection.” What is more, he believes such a term is essential if the executive is to act independently of Congress, particularly the popularly elected branch whose members “sometimes . . . fancy, that they are the people themselves.” Given these views, it is hardly surprising that Publius vigorously defends the view (No. 72) that the executive ought to enjoy indefinite reeligibility. He enumerates in some detail the potential “ill effects” that limitations on reeligibility would produce. He concludes by arguing that the presumed advantages of the principle of exclusion (“greater independence” and “greater security to the people”) are highly dubious.

The third ingredient of an energetic executive authority, “adequate provision for its support,” is discussed in essay No. 73 by taking note of the constitutional provision prohibiting an increase or decrease of presidential pay during the executive’s term of office. However, his major focus in this essay, and in those that follow, is on the fourth ingredient, “competent powers.” This, in turn, leads to an extensive discussion of the president’s veto power. He notes the imperative need for such a power to prevent legislative encroachment on the executive branch in order to preserve the separation of powers. He also sees the veto power as a means of curing the “inconstancy and mutability in the laws,” which he calls the “greatest blemish” on the character of the state governments. He looks upon the qualified veto as an encouragement for an otherwise reluctant chief executive to exercise this prerogative in questionable cases, because it lacks the finality of an absolute veto.

Continuing with his discussion of “competent powers” in Federalist No. 74, Publius turns to the president’s power as commander-in-chief, as well as his authority to require the “opinions, in writing” of his principal subordinates. The major portion of the essay, however, is devoted to his power “‘to grant reprieves and pardons.’” On this matter, he weighs the pros and cons of the argument that at least the concurrence of one chamber of the legislature should be required for pardons in the case of treason. On balance, he concludes, the need for flexibility and dispatch justifies vesting this authority solely with the executive. In No. 75 Publius examines the treaty-making power of the president by way of showing the appropriateness of the constitutional provisions relating to this authority. To the charge that the participation of the Senate in this process involves an undesirable mixture of legislative and executive powers he responds that the treaty-making power does not fit neatly into either the executive or the legislative branches, that it partakes of both. Moreover, he remarks, “the history of human conduct” indicates that the executive should not be able to exercise this whole power unilaterally. On the other hand, he observes, the Senate is not as suited as is the president for conducting treaty negotiations.

In the last two essays devoted to the presidency, Publius takes up the president’s power of appointment and the role of the Senate in this process. Nomination by the president and confirmation by the Senate, he contends in No. 76, have all the advantages of appointment by a single person while avoiding the factional strife that inevitably arises when assemblies are vested with the authority to appoint. Nomination by the president, he believes, will be tantamount to appointment. Though he recognizes that the Senate may reject the nomination—something he believes it would do infrequently in the absence of compelling reasons—the subsequent nominee would still be the preference of the president, not the Senate. In this vein he comments on the benefits that would result from Senate confirmation, not the least of which is that the mere possibility of rejection would serve as “a strong motive to care in proposing.” Finally, he sees little prospect that the president could use his powers of appointment “to corrupt or seduce a majority” of the senators.

Publius opens Federalist No. 77 by asserting that the Senate would have to consent to the removal of executive officers (a position rejected by the first Congress which, in effect, held that removal was an inherent executive power). The remainder of this paper, however, is devoted to defending the mode of appointment set forth in the proposed Constitution. In this regard, he dismisses as without foundation the contention that the Senate might be able to exercise an undue “influence [on] the executive.” He rejects any participation by the House of Representatives in the appointment process, because the “fluctuating” character of its large membership would destroy “the advantages of stability” and cause “infinite delays and embarrassments.” Toward the end of the essay, returning to a concern he discussed earlier in No. 70, he contends that the “structure and powers of the executive department” do “combine the requisites of safety, in the republican sense.” He cites, in this connection, the power of impeachment and removal and the concurrence of the Senate over those concerns where “abuse of the executive authority was materially to be feared.”

The Judiciary

In Federalist Nos. 78 through 83, Publius examines the third branch of government, the judiciary. The most significant of these essays is the first, in which he sets forth the case for judicial review, or what he describes as the power of the courts “to declare all acts [of the legislature] contrary to the manifest tenor of the Constitution void.”

In essay No. 78 Publius defends the constitutional provision for tenure during good behavior for justices. In the course of this defense, he notes the feebleness of the judiciary relative to the other branches of government: it has no control over either the “sword or the purse”; it “can take no active resolution whatever”; it “will always be the least dangerous to the political rights of the Constitution”; and it possesses “neither Force nor Will , but merely judgment.” The national courts can pose a threat to the liberties of the people, he argues, only if they are united with either of the other two branches. Thus, he points out, there is a need for “ Permanency in Office ” to secure its separation.

Having stressed the need to maintain a separation between the judiciary and the other branches to avoid tyranny, Publius goes on to contend that an independent judiciary is “essential in a limited constitution”—a constitution which, as he puts it, “contains . . . specified exceptions to legislative authority.” At this juncture, he sets forth his famous argument for judicial review. The Constitution, he insists, must be viewed as fundamental law, the embodiment of the constituent will of the people. Any legislative act contrary to a provision of this fundamental law, in his view, must be regarded as “void.” “To deny” this conclusion, he contends, “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.” Because “The interpretation of the laws is the proper and peculiar province of the courts,” Publius holds that it falls to them to determine when there exists an “irreconcilable difference” between the Constitution and a law passed by Congress. It is “the duty of the judicial tribunals,” he writes, to void statutes that contravene the “manifest tenor” of the Constitution. This does not mean, he adds, that the judiciary is superior to the legislature, but only that the will of the people expressed in the Constitution is superior to both.

In this essay Publius canvasses other reasons to justify life tenure. The independence of the courts is essential if they are to uphold the Constitution against any “momentary inclination” that may lead majorities to back proposals “incompatible with the provisions in the existing Constitution.” Changes or alterations in the Constitution, he insists, must be made through “some solemn and authoritative act”—i.e., through the amendment process outlined in Article V. Still another reason for the independence of the judiciary relates to the “qualifications” for fit judges. Not only must they be steeped in the law with a knowledge of precedents, they must also be individuals of high moral character. Such “fit characters,” he remarks, are not to be found in abundance. Life tenure, he reasons, might serve as an inducement for such characters to leave “a lucrative line of practice” in the private sector and to “accept a seat on the bench.”

Publius defends (No. 79) other constitutional provisions that provide for judicial independence. The constitutional provision that the compensation of judges “‘shall not be diminished during the continuance in office’” he regards as “the most eligible provision that could have been devised.” More importantly, he finds that the removal of judges through the impeachment process is the only method “consistent with the independence of the judicial character.”

In Federalist No. 80, Publius inquires into the “proper objects” of the “federal judicature” and whether Article III of the proposed Constitution conforms to them. In this connection he comments on the role of the federal courts in “giving efficacy to constitutional provisions” by overturning State laws in “manifest contravention” of the Constitution. Moreover, he also sees the need for a judicial power “coextensive” with the legislative to provide for “uniformity in the interpretation of the national laws.” He points as well to the need of the federal judiciary to act as an impartial arbiter in “determining causes between two states, between one state and the citizens of another, and between the citizens of different states.”

Having defended an independent federal judiciary with the power of judicial review over both State and national laws, in Federalist No. 81 Publius proceeds to answer those Anti-Federalists who argue that the federal courts—and the Supreme Court in particular—will become the dominant branch of government, because they will be free to go beyond the letter of the Constitution to interpret its “spirit.” Publius responds by noting that the Constitution does not “directly” authorize the “national courts to construe the laws according to the spirit of the Constitution” and that, moreover, the latitude given to the national courts by the Constitution is no greater than that enjoyed by the State courts. Publius holds that the “danger of judiciary encroachments” on the legislature is a “phantom,” and that the legislative power to remove judges through the impeachment process is a sufficient deterrent against judicial usurpation.

After stressing the need for “inferior” federal courts—that is, courts below the Supreme Court—by pointing out that the existing State courts could not very well provide for uniform and impartial interpretations of the national laws (No. 81), Publius takes up the matter of the relationship between the federal and State courts in No. 82. He assures his readers that the adoption of the Constitution will not diminish the jurisdiction of the State courts, save where there is express provision for exclusive federal jurisdiction. He maintains that the degree to which the State courts will share jurisdiction with the federal courts over those matters that are “peculiar to” or “grow out of” the Constitution is a matter for Congress to determine. He again notes that the need for uniformity requires that in cases of concurrent jurisdiction there must be appeal to the national courts.

In the longest of all the essays, No. 83, Publius engages in a detailed response to Anti-Federalists who argue that the proposed Constitution abolishes trial by jury in civil cases. Publius makes a number of points, three of which are central. First, he rejects the notion that the silence of the proposed Constitution on this score can be interpreted as abolishing trial by jury in such cases. Second, he does not personally believe that trial by jury in all civil cases, unlike trial by jury in criminal cases, is an indispensable “safeguard to liberty.” And, finally, because the practices of the States with regard to civil cases varied, the members of the Convention wisely left this matter to the discretion of Congress.

Concluding Observations

By way of picking up loose ends, Publius takes up (No. 84) certain “miscellaneous” matters which, he contends, “did not fall naturally under any particular head, or were forgotten in their proper places.” The most important of these he deems to be the objection that the proposed Constitution “contains no bill of rights.”

Publius approaches this objection from several perspectives. He begins by noting that the proposed Constitution already protects a number of important rights, including the guarantee of the writ of habeas corpus and the prohibition against ex post facto laws; and that, unlike the rights proclaimed in the New York Constitution, the rights in the proposed federal Constitution are not alterable by simple legislation. He then observes that bills of rights, “according to their primitive signification,” are grants of privilege from the sovereign to the people and, as such, have no place in republican governments founded on the consent of the people. “ We, the People ” of the Preamble, he declares, “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.” He goes on to maintain “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary . . . but would even be dangerous. . . . They would,” he argues, “contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He remarks as well that the security for liberties rests ultimately “on public opinion, and on the general spirit of the people and of the government.”

The last essay, Federalist No. 85, contains Publius’s final plea for ratification of the Constitution. Holding that “I never expect to see a perfect work from imperfect man,” he maintains that the proposed Constitution is “the best which our political situation, habits, and opinions will admit.” To counter Anti-Federalists urging the addition of amendments as a precondition for ratification, Publius stresses the dangers of seeking to perfect the Constitution through amendments “prior to” its operation. He also observes that such a precondition would require starting the ratification process all over again, producing a delay that might well result in “anarchy, civil war, a perpetual alienation of the states from one another, and perhaps the military despotism of a victorious demagogue.” He notes, by way of answering those concerned about the national government resisting changes that would diminish its powers, that the States can initiate amendments once the system is set in motion; that they will not have to rely upon Congress, an arm of the national government, for this purpose. Recurring to a theme of Federalist No. 1, he strongly suggests that the nation is at the crossroads, and that the opportunity for a republican union might never again present itself.

The Federalist Papers and Us

In Rekindling Constitutional Ambition , his recent post for Law and Liberty , Yuval Levin offered some particularly helpful insights for thinking through our constitutional problems. As Levin points out, friends of the Constitution are currently in a period of uncertainty about what goals they should be aiming for, even apart from the usual confusion over how to achieve their goals. Some friends of the Constitution argue that the election of Donald Trump to the presidency would allow for a revival (such as the writers at the Journal of American Greatness blog), while others (such as the signers of the Originalists against Trump statement) argue that it would undermine obedience to the Constitution as that document was originally intended. Levin’s comments are a helpful step back from those debates about means to consider the debate about the ends constitutionalists should aim to achieve in the long term.

The ends constitutionalists ought to pursue certainly do not include further delegations of power by Congress to executive agencies or the further acceptance by state leaders of federal grants with strings attached. And it really is harmful for officials in the federal government to believe that Congress and the states need to be weakened further than they already are.

A key point Levin makes is that accepting certain assumptions from the Federalist can actually lead to those mistakes. Federalist 51 does claim that “in republican government, the legislature necessarily predominates” and Federalist 17 does claim that “it will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.” Current political science would say that those claims are clearly not true anymore, and might even be harmful to the constitutional structure if acted upon. One could easily add to Levin’s list Hamilton’s expectation in Federalist 78 that the judiciary would be “the least dangerous” branch.

Following Yuval Levin’s lead, I think it might be helpful to also point out assumptions from the Federalist that are still true. Officials in the federal government should know that Hamilton got it right when he argued that their job should be focused on protecting citizens’ rights. Hamilton wrote in Federalist 1 that “the vigor of government is essential to the security of liberty.” In other words: without the safety provided by an energetic government, the right to liberty cannot be enjoyed. Hamilton’s assumption—that safety is necessary for the right to liberty to be exercised—was true then and is true now, although it can be improperly confused with other practical assumptions. One further way to “rekindle constitutional ambition” would be to properly embrace this true assumption made in the Federalist .

It is helpful to distinguish Hamilton’s practical assumption from another assumption made during the Progressive Era, which often misleads government officials today.[1] The assumption I have in mind is: without material wealth, a citizen’s liberty is useless. This practical assumption was stated most clearly in Franklin Roosevelt’s 1944 State of the Union address to Congress (the “Second Bill of Rights” speech), where FDR claimed that “true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’”

Hamilton’s and FDR’s practical assumptions sound similar. However, Hamilton’s assumption that security is necessary for liberty is a more primordial consideration. The basic duty of the United States government for Hamilton was to protect a limited set of the people’s negative rights (rights to not be interfered with). Roosevelt’s belief that government ought to provide goods to help people enjoy their rights would have to be a consideration that would come after Hamilton’s task for government is achieved, and may or may not be feasible. The type of assumption involved in both cases—that necessities at times determine what rights the people can enjoy—makes these statements similar. However, it is important to note that FDR’s assumption makes for a much harder (and perhaps impossible) goal for government to achieve, based on a questionable moral necessity.

Confusion about the Hamilton’s assumption can cause federal officials to see it as their job to fix every aspect of citizens’ lives. Hamilton’s actual assumption, that the security of liberty requires energetic government, ought to be the main focus of federal officials. The military and national security therefore ought to be of chief concern to the federal government, as should security from legal encroachments into citizens’ rights by the administrative state.

An awareness of which assumptions from the Federalist are false and which are true (and always will be true) can also help the friends of the Constitution to decide what the greatest threat to our security in liberty is in this election—a legislating judiciary, a legislating executive, a consolidation of the states, a threat from a foreign military, or some other threat.

[1] For other contrasts between Hamilton’s view of the role of government and Progressive views of the role of government, see Carson Holloway’s “ Alexander Hamilton and American Progressivism .”

Book Review Justice Breyer’s Problematic “Pragmatism” John O. McGinnis

Book Review The Fighting Economist Julia R. Cartwright

Essay Hope for Harvard? James Hankins

Book Review The Stories of a Forgotten Nation David Krugler

Essay Taking On the College Cartel Frederick M. Hess   &   Michael Q. McShane

Federalist 10

Written by James Madison, this Federalist 10 defended the form of republican government proposed by the  Constitution . Critics of the Constitution argued that the proposed federal government was too large and would be unresponsive to the people.

PDF: Federalist Papers No 10

Writing Federalist Paper No 10

In response, Madison explored majority rule v. minority rights in this essay. He countered that it was exactly the great number of factions and diversity that would avoid tyranny. Groups would be forced to negotiate and compromise among themselves, arriving at solutions that would respect the rights of minorities. Further, he argued that the large size of the country would actually make it more difficult for factions to gain control over others. “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.”

Federalist 10 | BRI’s Primary Source Essentials

Related Resources

James Madison

No other Founder had as much influence in crafting, ratifying, and interpreting the United States Constitution and the Bill of Rights as he did. A skilled political tactician, Madison proved instrumental in determining the form of the early American republic.

Would you have been a Federalist or an Anti-Federalist?

Federalist or Anti-Federalist? Over the next few months we will explore through a series of eLessons the debate over ratification of the United States Constitution as discussed in the Federalist and Anti-Federalist papers. We look forward to exploring this important debate with you! One of the great debates in American history was over the ratification […]

Explore the Constitution

The constitution.

• Read the Full Text

Dive Deeper

Constitution 101 course.

• The Drafting Table
• Supreme Court Cases Library
• Founders' Library
• Constitutional Rights: Origins & Travels

Start your constitutional learning journey

• News & Debate Overview
• Constitution Daily Blog
• America's Town Hall Programs
• Special Projects
• Media Library

America’s Town Hall

Watch videos of recent programs.

• Education Overview

Constitution 101 Curriculum

• Classroom Resources by Topic
• Classroom Resources Library
• Live Online Events
• Professional Learning Opportunities
• Constitution Day Resources

Explore our new 15-unit high school curriculum.

• Explore the Museum
• Plan Your Visit
• Exhibits & Programs
• Field Trips & Group Visits
• Host Your Event
• Buy Tickets

New exhibit

The first amendment, historic document, federalist 10 (1787).

James Madison | 1787

After the Constitutional Convention adjourned in September 1787, heated local debate followed on the merits of the Constitution. Each state was required to vote on ratification of the document. A series of articles signed “Publius” soon began in New York newspapers. These Federalist Papers strongly supported the Constitution and continued to appear through the summer of 1788. Hamilton organized them, and he and Madison wrote most of the series of eighty-five articles, with John Jay contributing five. These essays were read carefully and debated in newspapers, primarily in New York. The Federalist Papers have since taken on immense significance, as they have come to be seen as the definitive early exposition on the Constitution’s meaning and giving us the main arguments for our form of government. In Federalist 10, Madison fulfills the promise made in Federalist No. 9 to demonstrate the utility of the proposed union in overcoming the problem of faction. Madison’s argument is the most systematic argument presented in the Federalist Papers , with syllogistically developed reasoning sustained virtually throughout.

Selected by

William B. Allen

Emeritus Dean of James Madison College and Emeritus Professor of Political Science at Michigan State University

Jonathan Gienapp

Associate Professor of History at Stanford University

Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. …

The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarranted partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that 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. These must be chiefly, if not wholly, effects of the unsteadiness and injustice, with which a factious spirit has tainted our public administrations.

By a faction, I understand 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.

There are two methods of curing the mischiefs of faction. The one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction. The one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said, than of the first remedy, that it is worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it would not be a less folly to abolish liberty, which is essential to political life because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self­love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to an uniformity of interests. The protection of those faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; … and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good. So strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those, who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall into a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of the party and faction in the necessary and ordinary operations of government. …

It is vain to say, that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. …

The inference to which we are brought is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views, by regular vote. It may clog the administration; it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens. 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 the form of popular government, is the greatest object to which our inquiries are directed. ...

By what means is the object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority, at the same time must be prevented; or 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. …

From this view of the subject, it may be concluded, that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure from the mischiefs of faction. …

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. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. The two great points of difference, between a democracy and a republic, are, first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and the greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves, convened for the purpose.... The question resulting is, whether small or extensive republics are most favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations.

In the first place, it is to be remarked, that however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the constituents, and being proportionately greatest in the small republic, it follows that if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit, and the most diffusive and established characters. …

The other point of difference is, the greater number of citizens, and extent of territory, which may be brought within the compass of republican, than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter. .. Extend the sphere, and you will 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 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. …

Hence, it clearly appears, that the same advantage, which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic - enjoyed by the union over the states composing it. …

In the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government.

Explore the full document

Modal title.

Modal body text goes here.

Share with Students

Religious Freedom

by Matthew J. Franck

Federalist Papers referenced in essay:  #’s 1, 2, 10, 23, 47, 51, 52, 55, 84

A. Questions of religion, of religious freedom, and of religious strife are not major themes of the Federalist Papers.  Not a single one of the 85 essays takes up the protection of religious liberty as a distinct subject worthy of a sustained focus.  Yet we know that during this period of American history, from the revolution through the ratification and amendment of the Constitution (1775-1791), the protection of religious liberty, and the proper relationship of religion to politics, were of great concern to the Founders.  Why, then, in the single most important contemporaneous commentary on the Constitution, do the authors have so little to say on this subject? And when the subject is treated—always just in passing—what do the Federalist Papers have to teach us about religious freedom?

  B.  In the midst of the Revolutionary War, after the Continental Congress passed the Declaration of Independence in 1776, most of the thirteen former colonies—now calling themselves states—created new constitutions for themselves.  These replaced royal charters that were now either of no use to them, or fundamentally flawed as charters for self-governing republics. Most of these new state constitutions had something to say on the subject of religion and religious freedom, since most American states exhibited a good deal of religious diversity, and many had been settled by refugees from religious persecution.  Practically all Americans were Christians, though there were a few Jews. Practically all the Christians were Protestants, although there was a substantial Catholic population in Maryland.

C. However, the diversity among the Protestants was considerable, from Episcopalians to Presbyterians to Congregationalists, Dutch Reformed, Methodists, Baptists, and Quakers.  In the politics of the newly independent states, it was vital that all these groups accommodate one another peaceably, and not make their different beliefs the basis of political conflict.  Everyone should therefore be free to worship as he or she saw fit, without being coerced to believe (or pretend to believe) in the doctrines of an official faith. On this much, all were agreed.

D. But, much else was negotiable.  Should officeholding be restricted to Christians, or even more narrowly to Protestants?  (Most of the states had some test of this sort.) Could a state recognize one particular church as privileged over others, even while leaving people otherwise free to worship where and as they please?  Should tax dollars support religious ministries or religious education? If so, should citizens be entitled to direct their own tax dollars to support ministries of their choosing—or to opt out altogether?  To all these questions, the states gave widely different answers.

E. In the state of Virginia, a religious controversy is much remembered today because James Madison was in the thick of it.  The state’s new constitution, adopted in 1776, had a strong statement on religious freedom. As a result, the Episcopal Church, which had served as the established (official) church of the Virginia colony, largely lost its predominant position.  But in 1785, a bill was proposed in the Virginia legislature to support Christian clergymen with tax dollars. Madison successfully opposed it in a petition famously known as the Memorial and Remonstrance.  He argued that such legislation interfered with the rights of individual conscience and the duties that men owe first to the “Governor of the Universe” before any human government.  The clergy support bill was defeated. Instead, the very next year the Virginia legislature adopted Thomas Jefferson’s Virginia Statute for Religious Freedom.   This law bolstered the protection already in the state constitution.  From this episode, we know that Madison was deeply concerned about state limitations on all freedoms, especially religious freedom.   The lack of much discussion of this subject in the Federalist Papers cannot be taken as evidence that the authors did not care about it but, rather, that they had little or no concern about the federal government’s potential for limiting religious liberty.

   E.  America’s first attempt at a constitution binding all the states together, the Articles of Confederation, does not contain any provision on religious freedom.  But the presumption of the Articles was that nearly all the important business of politics was to take place at the level of the states, with the Confederation loosely uniting them for defense and diplomacy.  When the Constitution was drafted in 1787, its aim was to change that equation and to give a new national government much more responsibility for the internal affairs of the United States. Still, the states would presumably remain closest to the people’s everyday lives (an idea the Federalist Papers themselves underscore repeatedly.)  Many of the specific protections of individual liberty—including religious liberty—that one commonly found in the state constitutions were not thought to be necessary or appropriate in the new Constitution.  The Framers believed that issues related to religious freedom would mostly occur in the context of state laws and policies, and be governed by each state’s constitution.

F. Moreover, the Federalist Papers are a series of essays intended to defend the proposed Constitution, and to advance the cause of its ratification by the states.  The three authors have no interest in picking unnecessary fights by pointing to the things the Framers left out of the Constitution.  They are concerned with defending what is in the Constitution, and the way in which it fundamentally reforms–for the better–the relationship of the states to the nation, and the relationship of the people to both of those levels of government.

G. The Constitution does make one statement about religious liberty.  Article VI requires public officials of both the state and federal governments to take an oath to “support this Constitution,” and then adds “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  The phrase was introduced by Charles Pinckney of South Carolina and elicited little debate or discussion during the Constitutional Convention. Even today this seems one of the least controversial clauses the Constitution could possibly contain.  Madison never offers any explanation or defense of it, merely alluding to it in No. 52 when he remarks that service in the House of Representatives is “open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”

H. There are two major reasons that Article VI, Section 3 is barely referenced in the Federalist Papers.  Firstly, the most extended objections to the lack of a religious test were not raised until July, 1788–and the last of the Federalist Papers was published in May, 1788.  (However, in January, some delegates to the Massachusetts Convention had noted that the lack of a religious test for office contradicted the motivations of the earliest settlers, many of whom came to America to preserve their religious traditions.)   Secondly, the authors did not anticipate that there would be any significant opposition to this provisions. When Charles Pinckney presented this idea at the Convention, it was accepted almost without debate. The Framers did not expect any real concerns to be raised in the state ratifying conventions.

I. Yet various Anti-Federalists objected to the clause.  Why? Some openly worried that the “no religious Test” principle would permit non-Christians to hold public office.  Others were concerned that “papists” (Catholics) or Jews could hold office. Still others thought the clause might open officeholding to persons who believed in no God at all.  A test for specifically Christian belief would be problematic, so widely varied were the forms of Christianity.  If one were not prepared to state up front what forms of religious belief were ruled in, it would be very difficult to state what was ruled out.  And no one, it seems, was prepared to write “no Jews, Muslims, or atheists” into the text of the Constitution.

J. The July 1788 debates from the North Carolina ratifying conventions provide useful insights into concerns about “no religious test.”  Delegate Henry Abbot feared this would lead to “papists, deists, and Mahometans” taking office.  David Caldwell wanted a test because “the Christian religion was best calculated, of all religions, to make good members of society on account of its morality.”

K. Supporters of the clause argued that a religious test was, in and of itself, a limitation on religious liberty and contrary to American ideas.  Supporter James Iredell commented that “I consider the clause under consideration as one of the strongest proofs . . . that it was the intention of those who formed this system to establish a general religious liberty in America.”  Samuel Spencer noted that “Religious tests have been the foundation of persecutions in all countries.” Some delegates expressed concerns that requiring such a test would lead to an established church at the national level.

L. In general, Anti-Federalists throughout the country had three major reservations on the status of religion under the proposed Constitution: 1) The “no religious Test” clause might result in the election of the “wrong” kind of people (and the definition of wrong varied from state to state);  2) The new federal government might interfere with the states’ systems of preference for Christianity, Protestantism, or particular denominations, and several states’ established churches could be threatened; and 3) Religious liberty in general would not be protected from invasion by the federal government.  Some people held all three views at once.

M. It may seem as if the third reservation cannot be squared with the first two.  However, it was common, at the time of the Founding, for political thinkers to be concerned about striking a balance between support for religion (owing to its perceived connection to sound morality) and freedom of religious belief.    They did not automatically think either that absolutely equal status for all religious views was required by the principle of religious freedom, nor that complete religious equality was the best way to provide support for religion and thus for morality.  Today, we are more inclined to think both those things, and thus to insist on all religious views (and even irreligious views like agnosticism, atheism, or secularism) being treated equally. Many of the Framers would not have agreed.

N. However, the demand for a bill of rights turned out to be one of the most significant Anti-Federalist critiques.   Nearly everyone agreed that the federal government should be stronger than it had been under the ineffective Articles of Confederation, and it was not difficult to make the case that the Constitution filled the bill nicely.   But the Framers’ omission of a bill of rights—an idea considered and rejected in the Constitutional Convention—gave the Constitution’s opponents their most powerful weapon. This omission was not enough to defeat the Constitution in any state.  It was not even enough to force the amendment of the Constitution as a precondition of its ratification. But it was enough to produce, in about half the states’ ratifying conventions, resolutions calling on the new Congress to propose amendments for the states to consider.

O. In the first session of the First Congress in the summer of 1789, James Madison, now a member of the new House of Representatives and eager to ensure ratification of the Constitution, consolidated over 37 proposed amendments and persisted in his campaign until a dozen proposed amendments were sent to the states.  Ten of them were ratified by December 1791 and are popularly known at the Bill of Rights. The one that became the First Amendment begins with a protection of religious liberty: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This language satisfied those who wanted a general protection of religious freedom; those who wanted to prevent the establishment of an “official” or preferred church by the federal government; and those who wanted to prevent that government’s interference with any preferences then existing at the state level.

P. Given his experience in 1785 with the Virginia controversy over support of clergymen, it is not surprising that Madison also proposed an amendment that would protect the “rights of conscience” (as well as free speech and press, and jury trials) from violation by the states .  While this proposed amendment survived the debate in the House, it was rejected by the Senate and not sent to the states.  Madison later said that this was the “most valuable” amendment of all, and he regretted its defeat.

   Q.  Madison regarded a limit on states’ authority over religious liberty as “more valuable” than the protection of religious liberty from federal power.  He shared Alexander Hamilton’s arguments (No. 84) for the omission of a bill of rights from the original Constitution.  Statements of the rights the federal government was forbidden to violate, Hamilton argued, might be “fine declarations,” but no language we might place in the Constitution could be so precisely drafted as to secure those rights with perfect success, protecting everything that should be protected and no more than that.  The language would require interpretation; interpretation would necessarily involve the branches of the very government one was trying to restrain; and the one restraint to which the government would answer would be the people’s authority.  Therefore, concrete freedoms, ultimately, “must altogether depend on public opinion.”  A bill of rights added really nothing to the Constitution.  As Hamilton concluded (No. 84), the Constitution as it came from Philadelphia in its original form was “itself in every rational sense, and to every useful purpose, a bill of rights” , and would thus safeguard all liberties, including religious freedom. What did he mean by this?

R. The Federalist Papers emphasize that the essential goal in designing a constitution for a free people is not the use of fine words about rights that amount only to “parchment barriers” against tyranny (No. 47), but, instead, the design of an “internal structure” (No. 23) that tilts all the outcomes of the political process in favor of freedom.  Whether it was religious liberty, or freedom of speech and press, or the free use of one’s ability to acquire property, the real protection was provided by federalism, the separation of powers and checks and balances, and other features of the Constitution’s system of republican government.  These principles themselves relied on public opinion, kept it at arm’s length, and shaped and directed it in ways friendly to freedom.

S. From the very first essay, the Federalist Papers are skeptical that we can simply trust majority rule to maintain liberty.   Even when people’s motives are good, they can be misled into thinking that they have all the answers, and can justifiably force others to agree with them.  Hamilton reminds his readers of bloody religious strife, still fresh in the memory of people only removed by a generation or two from European soil:

“nothing could be more ill-judged than that intolerant spirit, which has, at all times, characterized political parties.  For, in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword.  Heresies in either can rarely be cured by persecution.” (No. 1)

T. Over and over, the authors of the Federalist Papers push their readers to recognize the unique pitfall of a democratic republic: the principle of democratic rule can lead to the oppression of minorities, with the majority itself turning out to be freedom’s enemy.  Therefore, the most important goal of the Constitution is to restrain, channel, and moderate the great power of the majority, without abandoning the principle that in a republic, the people’s will ultimately rules.

U. This recurring theme is most comprehensively fleshed out (No. 10 and No. 51) when Madison makes the novel argument that majority rule at the level of the whole United States will be more trustworthy than majority rule at the level of any individual state.  In the larger, more diverse political environment of the entire country, there will be many more “factions”: self-forming groups of people, organizing and pressing their views in the public sphere. None of them will hold the upper hand as the majority all by itself, and so all of them will have to learn to make compromises with one another, accommodating each other’s particular interests in order to form the shifting, temporary, cobbled-together majorities that can win elections and pass laws.  In such an environment, there are no permanent winners and losers. Everyone wins some fights and loses others.

V. Madison explicitly includes different religious viewpoints in this political analysis.  In addition to factions organized around economic self-interest, he considers “zeal for different opinions concerning religion” (No. 10) as a strong basis for organizing.  But, in this new democratic republic, the urge to impose one’s own view on the whole world, “by fire and sword” (No. 1) will be replaced by moderation, and toleration of fellow citizens’ different views, precisely because so many different views exist, and power must be shared.   “In a free government, 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” (No. 51).  He continues a little later in the same essay:    “In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, 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.”

W. This could be contrasted with a less favorable outlook in the smaller environment of a single state: “A religious sect, may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source” (No. 10).  This helps explain why Madison, in the First Congress, thought a constitutional statement protecting religious liberty (and other freedoms too) from state governments was more vital than a similar statement aimed at the new federal government.  The states could be restrained by the federal government, but for restraining the federal government itself, a different calculation was required, as no political authority higher than itself would exist.  In national politics, then, a free and dynamic process of democratic rule would be its own best insurance policy, supplemented by the backup mechanisms of the separation of powers, and checks and balances among the branches of government.

   X.  If Madison sometimes seems skeptical of the good motives of religious citizens, does that mean that he is skeptical of religion?   Or does he think of religious faith as sometimes inclining people toward bad behavior rather than good? Not at all. He is realistic about what Christians call man’s “fallen” nature, and is concerned to give our politics a structure and shape that control what is worst in us and bring out what is best in us.

Y.  Madison is certain that if the unrestrained power of majority rule falls into the hands of a single-minded group, without any need for it to compromise with others, “neither moral nor religious motives can be relied on as an adequate control” of the majority’s behavior (No. 10).  This recognition that morality and religion need the help of wisely formed institutions is coupled with a faith that, if we do wisely design our politics, the good sense and sound morality of most people, grounded in their religious upbringing, will be the bedrock on which our constitutional order and our liberties rest:

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence.  Republican government presupposes the existence of these qualities in a higher degree than any other form.  Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.   (No. 55)

Madison is ultimately hopeful about human nature, or else he could not endorse the idea of a democratic republic at all.

Z. The authors of the Federalist Papers assumed that, for all their religious diversity, the American people are by and large the children of a shared culture, with a shared moral foundation:

Providence has been pleased to give this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.  (No. 2)

Certainly this statement exaggerated, for political purposes, the degree of cultural, ancestral, and even linguistic sameness among the Americans of 1787.  Still, the essential teachings of the Christian faith, the use of the English language as the common speech nationwide, the inheritance of British legal principles and political traditions, and the shared and unifying experience of the Revolution itself made the Americans into one people with a shared consciousness of a shared identity.  As the nation matured after the Founding, it faced problems of assimilating new groups—immigrants from every land, emancipated slaves, and formerly independent Native Americans—into the American mix.  Language, law, and a kind of “civic religion” melded elements of Judeo-Christian teaching with patriotic political principles, and became the essential tools of that assimilation.  And, among these essential principles of the American psyche is the protection of full religious freedom for all, whatever their beliefs.  As President George Washington said, in a famous 1790 letter to the Jewish congregation of Newport, Rhode Island:

“. . . happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support. . . . everyone shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

Back to Essay Contest

• Contributors
• Newsletters

1 Trending: 38 Chaplains Ask Supreme Court To Stop U.S. Military From Punishing Their Faith

2 trending: the many ways a porous border means crime without boundaries, 3 trending: supreme court justices purposely ignore the main issue in abortion pill arguments, 4 trending: long-shot willis challenger hopes to remind voters ‘lawfare for personal gain’ is ‘not the da’s job’, as christianity declines, we must confront the threat of pagan america.

Federalist Senior Editor John Daniel Davidson’s new book, Pagan America: The Decline of Christianity and the Dark Age to Come , offers a sobering assessment of the threats to the American way of life as religiosity declines.

• Share Article on Facebook
• Share Article on Twitter
• Share Article on Truth Social
• Copy Article Link
• Share Article via Email

In 2010, sociologist James Davison Hunter, famous for, among other things, popularizing the term “culture war” provocatively argued in To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World that conservative Christian attempts to restore Christian values on American society were misguided, if not harmful.

Such efforts to “redeem America,” argued Hunter, not only hadn’t worked but would never work, both because they represented an erroneous grasp of how cultures change, and because they distracted the faithful from their real task as Christians. Instead, Christians should pursue what Hunter termed “faithful presence,” by focusing on living authentically Christian lives in our families, communities, and spheres of influence, rather than programmatic political or cultural solutions.

Almost 15 years removed from Hunter’s book, things look quite a bit gloomier for Christianity in America. Over that period, the number of religiously unaffiliated adults has almost doubled to 28 percent ; weekly church attendance rates have dropped from about 40 percent to 30 percent ; and 80 percent of American adults believe religion’s influence on public life is declining. De-Christianizing trends are particularly salient among younger generations , who are less likely than older Americans to believe the government should protect religious liberty. Almost half of Gen Z-ers think the First Amendment should not protect hate speech (which, according to many Americans , includes religious criticism of LGBT identities and behaviors).

We inhabit an America less friendly to Christianity than was the case halfway through Obama’s first term as president. Various political, cultural, and demographic trends suggest that antipathy will only grow in the years to come. In Pagan America: The Decline of Christianity and the Dark Age to Come , Federalist Senior Editor John Daniel Davidson offers an even more pessimistic perspective: We’re already in a post-Christian society that is paganizing (or re-paganizing, to take the long historical view) in ways that will make life increasingly difficult and dangerous for American Christians.

From Pagan Exploitation to Christian Human Dignity

The historical narrative grade-school and collegiate students learn today portrays pre-modern societies across the world living in peaceful symbiosis with nature… until they were brutally defeated, if not destroyed by an intolerant Christian civilization. Davidson relates a number of historical anecdotes proving how blinkered this story is. Whether we are talking about the ancient societies of the Mediterranean, pagan northern Europe, or indigenous America, all demonstrated a profound disregard for (or exploitation of) the weak and vulnerable. Davidson cites the Vikings, Aztecs, and 19th-century kingdom of Benin as civilizations engaging in ritual human sacrifice to appease angry, bloodthirsty gods, but there are plenty of others.

Judaism and then Christianity repudiated such societies, built as they were on power, fear, and the fulfillment of base sensual desires. It was the church that rejected the common Roman practice of abandoning ( if not murdering ) unwanted children, stopped human sacrifice in northern Europe, and discouraged polygamy in the Americas and Africa.

Citing Tom Holland’s popular book Dominion , Davidson writes: “Human rights, equality, care for the poor, mercy for the condemned, refuge for the persecuted, charity for the marginalized and downtrodden: these were never self-evident truths.” Rather, “they are unmistakably Christian ideas that rely on specifically Christian doctrines, without which they are unintelligible.” Obviously, Christian societies were by no means perfect and were often hypocritical, but it’s undeniable that they ushered in a paradigmatic shift via their understanding of the dignity of the human person.

This was no less true of the culture of the founders, who, though coming from a variety of religious traditions, recognized the need for the maintenance and propagation of religion and morality for the survival of the republic, something that can be found across their letters, including in the Federalist Papers . Indeed, the establishment of religion continued at the state and local level for many years after the signing of the Constitution, indicating that the framers did not intend pure religious indifferentism or a strict separation of church and state.

In his telling, Davidson departs from the postliberal thesis popular with some conservatives (and particularly Catholics ) that the problems with classical liberalism we see today were “baked into the cake,” so to speak, of our constitutional republic, but are rather an aberration. (Given postliberalism’s popularity, I wish Davidson would have engaged more with its arguments.)

When the Pro-Religion Wheels Fell Off

Despite the founders’ intentions, Davidson identifies trends that, observable in the 19th century and accelerating in post-World War II America, undermined the nation’s Christian identity. Several Supreme Court decisions are emblematic of this shift. Cantwell v. Connecticut (1940) in its forbidding of the “determination by state authority as to what is a religious cause” effectively mandated a strict state religious neutrality, imposed national secularism, and rendered government incapable of defining what is and is not a religion. Everson v. Board of Education (1947) decreed, “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa.” Lemon v. Kurtzman (1971) gave us the “lemon test”: If a government action 1) lacks a “secular purpose,” 2) has the “primary effect of promoting or disparaging religion,” or 3) excessively “entangles” the government in religious matters, then it violates the Establishment Clause.

Yet, as Davidson ably argues, secular laws and institutions are never purely religiously neutral — they will always make moral claims originating from some conception of right and wrong and will coerce citizens into what the state deems the “correct” behavior. As our culture’s self-understanding of Christianity declines, the secular regime’s tensions and conflicts with various Christian institutions increase.

This explains, for example, the state’s coercive tactics against churches during the height of the pandemic, forcing them to remain closed for months under penalty of law because they provided “nonessential” services. Of course, as we all observed, there were plenty of hypocritical double standards when it came to enforcement of Covid policies, given the kid gloves authorities employed toward race-related protests.

Such contradictions lead to Davidson’s most interesting and provocative thesis: that an increasingly secular America is not ushering in a rational, neutral, and indifferent regime, but rather a revitalized form of paganism. Indeed, that irrationalism is on full display in the growing popularity of superstitious beliefs such as horoscopes, crystals, tarot, occultism, wiccanism, and an unwavering faith in “the science” even when what “the science” declares is reversed only a short time after it was considered dogma . But Davidson is just getting started here.

He argues that neo-paganism is visible across our polis. Abortion and euthanasia, for example, are new forms of human sacrifice; transhumanism and transgenderism reflect man’s attempt to usurp God’s authority over nature. Moreover, warns Davidson, if minors have the autonomy to decide their own “gender,” what’s stopping our paganizing establishment from also claiming that minors have the autonomy to pursue sexual relations with whomever they choose? Artificial intelligence, in turn, serves as a “godlike” artifice, a “Promethean power” to be worshiped.

What’s a Christian to Do?

For now, the persecution of Christians in America has largely been restricted to ostracism and censorship. Davidson projects that to change, “through mandatory reeducation, the loss of parental rights, fines and financial penalties, and even imprisonment.” Indeed, there are already signs of this, including government persecution of Christian businesses, leveraging laws to shutter Christian foster care services, FBI targeting of pro-life activists, and federal collaboration with social media companies to restrict freedom of speech. In light of these trends, Christians must gird themselves for a “long persecution and a long fight.”

Echoing Rod Dreher and his famous “Benedict Option,” Davidson writes:

The primary task of American Christians in the generations to come will therefore be the preservation and propagation of the faith at all costs. And the costs will be high. Yes, that will require being prepared to be poorer and more marginalized, but it will also require being prepared to be arrested, imprisoned, and martyred.

Yet Davidson argues for something different than Dreher, what he calls a “Boniface Option,” after the medieval missionary to Germanic peoples who so aggressively combatted paganism and its rituals that he was ultimately martyred. This is a more combative, political approach than Dreher’s. Though Davidson acknowledges that Washington and other major cities are likely a lost cause, he exhorts readers to take back local institutions such as city councils, public libraries, and school boards. Christians, he urges, should be banning drag performances and pornographic and pro-trans books from l­­­­ocal libraries and schools, and applying economic pressure by “refusing to patronize businesses and brands that embrace pagan morality.”

It’s true: Christians cannot simply escape into their little ghettoes. The Christian religion cannot avoid witnessing in the public square, and its adherents, whether they be doctors, lawyers, teachers, government employees, business owners, or landscapers, cannot help but have their work informed by their faith.

That battle, even if it is a losing one, must be fought in every place inhabited by faithful Christians, an exemplar of Hunter’s “faithful presence” in this disastrously post-Christian society. I have no doubt the result will be the making of many saints. Whether it is also the making of a revitalized Christian society in America remains to be seen.

• American Christianity
• book review
• Christianity
• John Daniel Davidson
• John Davidson
• Pagan America
• Pagan America: The Decline of Christianity and the Dark Age to Come
• Religious Liberty

More from Books

Heartbreaking Memoir Troubled Indicts The Elites Tearing Apart Two-Parent Homes

How To Save Your Local Library From Cultural Marxists

The Therapeutic Model Of Childrearing Is Destroying Kids’ Lives

The Long Arm Of Chinese Censorship Comes For Science Fiction Awards

Nobody Believes Biden’s Transgender Celebration On Easter Was A Coincidence

Pennsylvania Lawmakers To Appeal ‘Bidenbucks’ Lawsuit To U.S. Supreme Court

Defunding UNRWA Is A Good Start, But We Should Scrutinize All Foreign Aid

Nationwide Ransomware Attack Exposes The Problem With Health Care Monopolies

Introducing

The Federalist Community

Join now to unlock comments, browse ad-free, and access exclusive content from your favorite FDRLST writers

Start your FREE TRIAL

Founders Online --> [ Back to normal view ]

The federalist no. 51, [6 february 1788], the federalist no. 51 1 by james madison or alexander hamilton.

[New York, February 6, 1788]

To the People of the State of New-York.

TO what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving 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. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that 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. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through channels, having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties however, and some additional expence, would attend the execution of it. Some deviations therefore from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

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. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

But 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. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

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. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

But it is not possible to give to each department an equal power of self defence. In republican government the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative, on the legislature, appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied, by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own departmen[t]?

If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion, to the several state constitutions, and to the federal constitution, it will be found, that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are moreover two considerations particularly applicable to the federal system of America, which place that system 2 in a very interesting point of view.

First. In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and 3 usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.

Second. It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole, very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of 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 country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the union may be formed into more circumscribed confederacies or states, oppressive combinations of a majority will be facilitated, the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member of the government, the only other security, must be proportionally increased. 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. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves: So in the former state, will the more powerful factions or parties 4 be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that if the state of Rhode Island was separated from the confederacy, and left to itself, the insecurity of rights under the popular form of government within such narrow limits, would be displayed by such reiterated oppressions of factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on 5 any other principles than those of justice and the general good; and 6 there being thus less danger to a minor from the will of the major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter; or in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self government. And happily for the republican cause , the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle .

The [New York] Independent Journal: or, the General Advertiser , February 6, 1788. This essay appeared on February 8 in New-York Packet and on February 11 in The [New York] Daily Advertiser . In the McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition this essay is numbered 51, in the newspapers it is numbered 50.

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

Essay 51, like essay 50, was claimed by H and Madison. The internal evidence presented by Edward G. Bourne (“The Authorship of the Federalist,” The American Historical Review , II [April, 1897], 449–51), strongly indicates Madison’s authorship. Bourne printed in parallel columns sentences from essay 51 which correspond very closely, sometimes exactly, to earlier writings by Madison. For other reasons why Madison’s claim to the authorship of this essay outweighs (but does not necessarily obviate) that of H, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

2 .  “it” substituted for “that system” 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” inserted at this point in Hopkins.

4 .  “or parties” omitted in Hopkins.

5 .  “upon” substituted for “on” in McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends and Hopkins.

6 .  “Whilst” substituted for “and” in McLean and Hopkins.

Index Entries

You are looking at.