Constitutional Myths

by Ray Raphael

  By contrast, James Wilson’s speech in support of the Constitution, delivered at the State House Yard in Philadelphia eight days after Congress sent the proposed new plan to the states, was reprinted in its entirety in twelve of the thirteen states, appearing in thirty-four newspapers, and in several pamphlets as well, in twenty-seven different cities or towns from Portsmouth to Augusta. Altogether, some 250 essays and articles appeared in newspapers in six states or more, a broader circulation than for any of Publius’s pieces except the first, and at least one hundred of these had a decidedly pro-Constitution or anti-Constitution slant. Reprints were customary at that time, but Publius’s last seventy essays stand as anomalies, the least likely pieces to have appeared in more than one state.20

  In the battle for public opinion, Publius’s newspaper publications enjoyed no special standing. But what about the bound volumes? The Federalist, in its book form, did not have the impact on ratification that Thomas Paine’s Common Sense did on the declaring of American independence. Compare the print runs: at least twenty-five printings in six colonies for Common Sense, yielding tens of thousands of copies, versus a single print run of 500 copies for The Federalist, with many of these left unsold. One was read in taverns throughout the land and served as a catalyst for the nation’s first grand debate, the other was but a small component of the nation’s second grand debate and there is no historical evidence indicating it affected the result.21

  A timeline is instructive. Six states had already voted for ratification before the first volume of collected essays appeared on March 22, 1788. The nation was only three states shy of the number required to place the Constitution in effect. By May 28, when the second volume appeared, Maryland and South Carolina had already ratified, and only one more state was needed. In the remaining states—New Hampshire, Virginia, New York, and North Carolina (Rhode Island did not hold a convention)—delegates had already been selected. Madison’s opinions on federalism and the relationships between the three branches or Hamilton’s extensive treatment of the presidency and the federal court system carried little weight as citizens cast ballots.22

  Might the combined volumes, although appearing late in the game, still change minds at the conventions? Hamilton and his allies certainly hoped so, and they worked hard to put copies in the hands of delegates to the four remaining conventions—but other backers and critics of the Constitution circulated their writings to the same end. In the final stage of the “paper war,” Publius was but one player among many.

  Even in New York, we have no evidence that The Federalist was a game changer at the state’s 1788 ratification convention in Poughkeepsie. Initially, the convention had a strong tilt against the proposed Constitution. Of the sixty-five delegates, forty-six were “decidedly opposed to the constitution,” according to the election returns reported in the New York Journal. Whereas we might like to imagine that the last-minute arrival of The Federalist converted opponents of the Constitution, news of political events in other states actually turned things around. On June 24, delegates learned that New Hampshire had voted for ratification, providing the needed ninth ratification out of thirteen; this meant that the Constitution would take effect as the new form of government for the United States, no matter what New York did. A week later delegates discovered that Virginia, the largest state in the union, had also ratified the Constitution. If New York failed to ratify, it would be virtually on its own, with only Rhode Island and perhaps North Carolina for company. After that, the critical issue was no longer outright acceptance or rejection of the Constitution, but whether to demand a second constitutional convention to consider amendments that would make the Constitution more palatable to the convention’s majority, who still opposed it.23

  While Publius’s first eighty-four essays did not address that matter, a widely circulated nineteen-page pamphlet from the pen of Federalist contributor John Jay did. Writing under the pseudonym “A Citizen of New-York,” Jay argued persuasively that a second convention, colored by the contentious debates over ratification, would be so highly politicized that it could destroy the nation. Noah Webster, a Federalist editor, wrote that Jay’s argument was “altogether unanswerable.” Another writer stated that Jay’s pamphlet “has had a most astonishing influence in converting Antifoederalists, to a knowledge and belief that the New Constitution was their only political salvation.” Alexander Hamilton was also impressed with Jay’s pamphlet. In fact, when he finally argued against a second convention in his eighty-fifth and concluding Federalist essay, he simply directed readers toward Jay: “The reasons assigned in an excellent little pamphlet lately published in this city, are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country.”24

  By any measure, John Jay’s Address had a greater impact on the New York convention than did the The Federalist No. 85, which appeared in the second volume after the elections for delegates and only days before the convention assembled, and which did not appear in any newspapers until mid-August, weeks after New York had ratified the Constitution. In the final analysis, though, the outcome was more the result of external events and the subsequent maneuverings of the delegates, Hamilton and Jay included. To win votes from delegates opposing the Constitution, Federalists agreed to issue a call for a second convention—but only after ratification. It was a strictly political solution and Publius’s essays had no hand in it. When modern writers suggest that without Publius “it is possible, perhaps even likely, that New Yorkers would have rejected the Constitution,” they engage in after-the-fact musings unsupported by historical evidence.25

  During the heat of the ratification debates, Americans viewed The Federalist for what it declared itself to be, an extensive argument in favor of the Constitution. The Constitution’s opponents would have recoiled at the notion that essays springing “from the deranged brain of Publius” someday would be deemed “authoritative commentaries” and invoked by Supreme Court justices in determining positions on constitutional law. Could they speak their minds today, and had they known who Publius really was, they would remind us that the lead author, Alexander Hamilton, was known to have taken controversial positions very unlike those he posited as Publius.26

  Hamilton’s ideas were so extreme that other delegates to the Federal Convention refused even to consider them. On June 18, holding the floor for a full day, he had voiced a preference for monarchy and for “extinguishing” the existing state governments and turning them into “subordinate authorities” or “district tribunals” to serve “local purposes.” It was a shocking speech, and when the Convention ignored him, and when he was consistently outvoted by New York’s other two delegates, he simply left.

  Returning later in the summer, Hamilton begrudgingly accepted the Convention’s weaker version of a national government and determined to promote ratification. Even so, at the close of the Convention, he entertained some hope that the Constitution would serve as a first step toward greater consolidation. If the Constitution were approved, he conjectured, George Washington would likely serve as the first president, Washington would govern well, and this might set in motion what he viewed as a positive train of events: “A good administration will conciliate the confidence and affection of the people, and perhaps enable the government to acquire more consistency than the proposed constitution seems to promise for so great a country. It may then triumph altogether over the State governments, and reduce them to an entire subordination, dividing the larger States into smaller districts. The organs of the general government may also acquire additional strength.” Knowing that the American public at the time feared central government and the concentration of authority, however, Hamilton did not express this view in public. Instead, he co
-created Publius, who would heap lavish praise on the proposed federal government, arguing that it posed no threat to state sovereignty.27

  As any good lawyer would do, Hamilton, when writing as Publius, argued the case he was given, even though it was not the case he would have preferred. In his Convention speech, he had proclaimed that “the British Government was the best in the world, and that he doubted much whether any thing short of it would do in America.” In particular, he said the president “ought to be hereditary, and to have so much power, that it will not be his interest to risk much to acquire more.” Yet in The Federalist No. 69, he boasted there was a “total dissimilitude” between the American president and the “King of Great-Britain, who is an hereditary monarch.”

  Then, he wanted to give the chief executive an absolute “negative upon all laws about to be passed.” Now, he boasted proudly that “the qualified negative of the president” in the new Constitution “differs widely from this absolute negative of the British sovereign.”

  Then, he wanted “the Militia of all the states to be under the sole and exclusive direction” of the United States and its commander in chief, not occasionally, but always. Now, in The Federalist, he assured the public that the president “will have only occasional command” of state militias.28

  And so it went. In his notes for the June 18 Convention speech, he had revealed a deep disregard for republican ideals. “It is said a republican government does not admit a vigorous execution,” he jotted down. “It [republican government] is therefore bad; for the goodness of a government consists in a vigorous execution.” Yet now he told Americans they need not worry because the Constitution insisted the president must act within a republican framework.29

  Such reversals were and are common among political figures, part and parcel of the democratic process. Though derided today as “flip-flops,” they demonstrate that politicians are responding to public opinion, as Hamilton was doing in The Federalist. Although we should not be surprised that key founders, who were engaging in a political process, altered their pronouncements to suit different circumstances, this does present an interpretative problem. Any vacillation discredits the custom of treating everything a founder said, whatever the context, as the final word. We cannot say, “Hamilton believed in republicanism” or “Hamilton believed in limiting the powers of the executive” because he said so in The Federalist.

  When constructing his arguments for The Federalist, Hamilton on occasion engaged in willful misrepresentation. In The Federalist No. 68 he addressed the matter of presidential selection. The Constitution stipulated that state legislatures “shall appoint” special sets of electors “in such Manner” as they please; they could allow the people to vote on electors if they so desired, but they were under no obligation to do so. Once chosen, these electors would select the president. Hamilton, however, thought the Constitution would be an easier sell if it inserted people directly into the electoral mechanism. Since “it was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” he wrote, the framers “referred it in the first instance to an immediate act of the people,” who would select their “agents in the election.” The emphases are mine but the repetition his. Over and over Hamilton made populist arguments, setting up a false front: “The executive should be independent for his continuance in office on all but the people themselves.” From there it was only one small step to factual misrepresentation, and Hamilton did not hesitate to take it: “The people of each state shall choose a number of persons as electors,” he wrote flatly, although that simply was not so.30

  This was no incidental error. In The Federalist No. 60 Hamilton wrote that the president would be selected “by electors chosen for that purpose by the people.” In The Federalist No. 77 he stated again that presidential electors were “immediately chosen by the people,” although that was nowhere stated in the Constitution. And in The Federalist No. 69 he said point-blank, “The President of the United States would be an officer elected by the people for four years,” leaving the electors entirely out of the process. This was hardly the intent of the framers. At the convention they had voted repeatedly and overwhelmingly against James Wilson’s attempts to select the president by popular vote, and they had instituted the strange new institution we call today the Electoral College specifically to sidestep that democratic process. In The Federalist, however, Hamilton pretended otherwise, as if Wilson had prevailed.31

  The pretense wore thin, for Hamilton was a most unlikely proponent of popular elections. In the notes he prepared for his speech to the Convention on June 18, he had commented on “the unreasonableness of the people” and stated that government should be “capable of resisting the popular current.” A prime function of the president was to keep the people in check, he had said back then, but now he was calling the president the people’s own. His opponents saw through this sudden turnabout. When Hamilton expressed populist views on the subject of representation in Congress at New York’s ratification convention—“in the general course of things,” he said there, “the popular views and even prejudices will direct the actions of the rulers”—Charles Tillinghast, an opponent of the Constitution, reported to John Lamb, “You would be surprised … what an amazing Republican Hamilton wishes to make himself be considered—But he is known.”32

  Some scholars, after noting “errors” in Publius’s exposition of the Constitution, pass them off casually. Although Hamilton, Madison, and Jay “wrote quickly,” explains Gregory Maggs, professor of law at George Washington University, “we now forgive the errors because they worked in haste.” Such missteps, Maggs contends, do not affect reliability: “While they may have made errors or produced incomplete analyses, the Federalist Papers still generally may show the original meaning of the Constitution.” It’s a strange argument. The lowest hurdle an “authoritative” source must clear is accuracy. Working too quickly makes a better argument against reliability than for it.33

  Although some of Publius’s errors—misstating the quorum requirements for the Senate in The Federalist No. 59, miscounting the members of the first Congress in The Federalist No. 84, and falsely describing the runoff election of the vice president in The Federalist No. 68—might have been unintentional, stating that election of the president was “an immediate act of the people” and that “the people of each state” were authorized to choose presidential electors, when the Constitution did not say these things, was either extremely sloppy or purposive. The issue of presidential selection spoke to the heart of the relationship between the people and their rulers, not a matter to be taken lightly and one that Hamilton addressed on many occasions. This was no casual mistake.34

  In Hamilton’s defense, one so-called error in The Federalist has been falsely categorized. The Constitution states clearly that presidential appointments for key offices must be accompanied by “the Advice and Consent” of the Senate, but it says nothing about Senate approval in case of a dismissal from office. Hamilton, writing as Publius in The Federalist No. 77, gave his rendering of the document’s intent: “The consent of that body [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.”

  According to Clinton Rossiter and other commentators, Hamilton was mistaken “in assigning the Senate a share of the power of removal.” Rossiter forgives him for this, however; although Publius was “understandably wrong in his interpretation of some details in the Constitution,” these details can be overlooked because he was “remarkably right about many more.” From our vantage point today, Hamilton does appear to be off base, but because the Constitution provided no direction, his interpretation was neither correct nor incorrect in the technical sense. It only became “wrong” the following year when Congress, after an extensive debate that lasted several days
, declared that the president could remove an official on his own authority.35

  Why did Hamilton bother to raise the issue at all, since the Constitution did not? And why would this known proponent of unitary executive authority argue that the president needed to seek approval from the Senate before removing an official? These questions have long troubled some commentators, who have even given the problem its own name: “The Puzzle of Hamilton’s Federalist No. 77.”36

  This puzzle is easy to solve. Only if we insist that Hamilton’s views, expressed on various occasions to different audiences, must remain logically consistent do we face a problem at all. As soon as we treat The Federalist No. 77 in its political context the apparent contradictions disappear.

  Here is the backstory.

  At the Federal Convention, the Committee of Detail’s working draft of the Constitution granted the Senate, not the president, authority to appoint ambassadors, Supreme Court justices, and other key officials. On September 4, less than two weeks before adjournment, the Committee of Eleven transferred appointive powers to the president, with the Senate’s assent. Eager to be done after meeting for more than three months, delegates agreed to the committee’s proposal, but in their haste they did not think to indicate whether dismissal required Senate approval.

  When Hamilton penned The Federalist No. 77 more than half a year later, he had had plenty of time to ponder the document, its weaknesses as well as its strengths. It would have been unlikely at that point for him not to notice that the question of removal was subject to competing interpretations: the president could dismiss officials on his own authority, as was eventually the case, or he would need approval from the Senate, as he argued in The Federalist No. 77. To defend the first of these would be a political liability, feeding fears that the president was a thinly disguised monarch who could control lesser officials through intimidation. To alleviate suspicions, therefore, Hamilton proclaimed that the Senate would have to be involved in any dismissals. This safeguard against presidential abuse would make the Constitution appear more acceptable.37