by Ray Raphael
The following year, when members of the first House of Representatives tried to create a Department of Foreign Affairs, they found themselves face-to-face with the Constitution’s silence. Should the secretary of that department be “removable from office by the President of the United States”? Some argued that if the president could not remove his inferior officers, they would in fact become more powerful than he was; others feared presidential overreach and insisted on Senate participation. During this debate, William Loughton Smith, to support the view that the Senate must be involved, quoted Publius’s words from The Federalist, which he called “a publication of no inconsiderable eminence, in the class of political writings on the constitution.” This created something of a problem for Hamilton, who was not present at the time but who heard that his words were being used to curb presidential authority, contrary to his actual beliefs. Immediately he tried to limit the damage. He sent word to his friends in Congress that since penning The Federalist No. 77, “upon more mature reflection he had changed his opinion & was now convinced that the President alone should have the power of removal at pleasure.” Had he really changed his opinion, or was he just adjusting his stance due to political contingencies? That does not matter. What counts is that he pushed for executive power during the Convention, then he retreated during the ratification debates to paint the Constitution in its least threatening light, and finally, when he was about to assume an office in Washington’s administration, he favored granting the president the exclusive authority of removal. The story makes perfect political sense, no puzzle about it.38
A story featuring The Federalist No. 83 follows a similar pattern. In that essay, Hamilton tried to alleviate fears that the Constitution would eliminate jury trials in civil cases. Not so, he said. True, it “established the trial by jury in criminal cases” while remaining “silent in respect to civil,” but that did not mean there was an “implied prohibition” against jury trials in civil cases. In fact, he argued, the Constitution allowed no such thing as implied prohibitions or implied powers. What the document said, it said; where it was silent, nothing could be inferred or assumed. To support this view, he argued that by giving an “affirmative grant” of specified powers to Congress in Section 1, Article 8, the Constitution actually limited Congress’s authority to those enumerated cases. Logically, the listing of special powers “would be absurd as well as useless if a general authority was intended.” If a power was not listed, Congress simply didn’t have it.39
Whereas this argument might appear legalistic to us, it was important at the time. Many people worried that the Constitution, if construed loosely, could give the government unbounded power, so both Hamilton and Madison offered assurance that it would not do so. The “jurisdiction” of the federal government was “limited to certain enumerated objects,” Madison said in The Federalist No. 14. He repeated this thought in The Federalist No. 39, and in The Federalist No. 45 he calmed his readers once again by stating, “The powers delegated by the proposed Constitution to the federal government are few and defined” (see chapter 5). Hamilton, in The Federalist No. 83, was reinforcing this critical theme. The Constitution must be interpreted strictly, both authors proclaimed. They had to say this, for if people believed the Constitution permitted an indefinite expansion of governmental powers, they never would ratify it.
Once the Constitution was ratified, though, Hamilton shifted his tone. In December 1790, as Washington’s secretary of the treasury, he proposed a national bank, funded and directed primarily by private investors but receiving up to 20 percent of its capitalization from the federal government. But where, exactly, did the United States Constitution authorize such an arrangement? The first clause of Article I, Section 8, empowered Congress to levy taxes and pay debts, and the second clause of that section permitted Congress to borrow money, yet there was no mention of chartering banks, which had been a province of the states, and the Constitution certainly did not stipulate that one group of private investors could acquire special standing in federal law (see chapter 4).
Hamilton argued that the lack of a specific grant of power to charter banks did not preclude such an action. Congress was authorized to borrow money and pay debts, and in a broader sense it was charged with keeping the nation financially afloat. If a bank could help perform these functions, it was constitutional. Congress therefore had an implied power to charter a bank, and “implied powers are to be considered as delegated equally with express ones”—quite the opposite of what he had argued in The Federalist No. 83.40
Technically, Hamilton could claim there was no contradiction; instead of adding a new power, chartering a bank was merely a means of executing a stipulated one. (This was in keeping with a position he had taken in The Federalist No. 33 when supporting the “necessary and proper” clause: “What is the ability to do a thing but the power of employing the means necessary to its execution?”) In tone and spirit, though, the two views worked at cross-purposes. In The Federalist No. 83, he argued for a strict interpretation that would limit governmental authority; in the bank debate, he argued for a broad interpretation that would allow the federal government to engage in any activity that Congress, on its own authority, claimed would further a stipulated end. Imagine if Hamilton had declared in The Federalist that “implied powers are to be considered as delegated equally with express ones.” That open-ended interpretation would have put people off, so he dared not present it until the Constitution had been ratified.41
Whereas Hamilton’s primary task in The Federalist was to demonstrate the need for a strong and unified government, his secondary task was to assure readers that the new government would not be too strong. The president bore no resemblance to a king. The people would elect him and could thereby control him. He would not possess the power to dismiss officeholders without senatorial approval. Congress, meanwhile, would be strictly restrained from venturing beyond the limits of its mandate, as specified in precise terms within Article I, Section 8. In every instance, the authority of the central government and the man chosen by the people to lead it would be narrowly circumscribed. Such safeguards prevented abuses of power.
It was in this vein that Hamilton argued in The Federalist No. 75 that the president did not have exclusive authority in foreign relations. “Foreign negotiations” were neither executive nor legislative in nature, he said, so they must be shared. It was “utterly unsafe and improper … to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
Five years later, however, in 1793, Hamilton argued differently. Revolutionary France and Great Britain were at war, and President Washington issued an executive proclamation pledging that the United States would “pursue a conduct friendly and impartial toward the belligerent powers.” Further, he prohibited American citizens from engaging in any “acts and proceedings whatsoever, which may in any manner tend to contravene such disposition,” and he promised to prosecute anyone who aided or abetted the hostile actions of either power. People who had hoped to send aid to France protested that the president had no constitutional authority to take such actions, but Hamilton maintained he did. Adopting the pen name “Pacificus,” he wrote a series of essays published by the proadministration Gazette of the United States. The executive department was “the organ of intercourse between the Nation and foreign Nations” and “the interpreter of the National Treaties,” he declared, and the opening of the Constitution’s Article II—“The executive power shall be vested in the President”—made it clear that executive authority, when not specifically delegated elsewhere, resided in the presidency. If the president decided to pursue a policy of neutrality, he had every right to issue a proclamation to that effect and require Americans to live up to it.42
Which is the “real” Alexander Hamilton? If we wish to quote this particular founder’s views on the powers of the ex
ecutive, do we say that he favored presidential control over “foreign negotiations” or that he felt it was “utterly unsafe and improper” to give “the president alone” the authority to engage in “intercourse with the rest of the world”? James Madison noted the contradiction. Writing as “Helvidius,” Madison rebutted Pacificus by quoting Hamilton’s very own words from The Federalist No. 75: “Tho’ several writers on the subject of government place that power (of making treaties) in the class of Executive authorities, yet this is evidently an arbitrary disposition.” So said Hamilton, writing as Publius, in 1788; but by 1793, as Pacificus, he had become one of those authorities making this “arbitrary disposition.”43
Given Hamilton’s inconsistencies, which reflect in great measure the turbulent and fast-changing conditions of constitutional politics in the early republic, we cannot treat his writings as Publius as the authoritative source on the precise meaning of the Constitution without saying that the other Alexander Hamilton, the one who helped write the Constitution in the summer of 1787 and who took the lead within Washington’s first cabinet in the early 1790s, was at best mistaken in several of his interpretations.
On January 24, 2011, Supreme Court Justice Antonin Scalia told a seminar organized by the Congressional Tea Party Caucus that each attendee should “get a copy of The Federalist Papers, read it, underline it and dog-ear it.” Scalia has not been Publius’s only fan on the High Court. In a dissenting opinion in Printz v. the United States (1997), Justice David Souter, a frequent opponent of Scalia, wrote, “In deciding these cases, which I have found closer than I had anticipated, it is The Federalist that finally determines my position. I believe that the most straightforward reading of No. 27 is authority for the Government’s position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45.” Not to be outdone by Souter, Justice Scalia cited The Federalist Nos. 15, 20, 27, 28, 33, 36, 39, 44, 45, 51, and 70.44
The competing aims of Publius—presenting the case for a truly national government with extensive powers while simultaneously alleviating people’s fears by emphasizing constitutional limitations on federal power—secured The Federalist an enduring role in American jurisprudence and political culture. Starting in the 1790s, Americans debating the Constitution referred to Publius to add heft to their arguments. From the disputes over the National Bank and Jay’s Treaty to the struggles over control of the judiciary in the early nineteenth century to the state-sovereignty issues that defined the politics of slavery up to the Civil War, advocates on opposing sides in great national debates invoked passages in The Federalist that supported their views.45
The intimate relationship between Supreme Court justices and The Federalist started back in 1798 when Justice Samuel Chase compared Publius favorably to Sir William Blackstone and Richard Wooddeson, leading jurists of eighteenth-century Britain. He praised “the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government.” Lawyers and jurists citing The Federalist included the plaintiff ’s attorney in the landmark case of Marbury v. Madison (1803), Justice William Johnson in his dissent in Fletcher v. Peck (1810), and Chief Justice John Marshall in his majority opinion in McCulloch v. Maryland (1819). In Cohens v. Virginia (1821), Marshall gave The Federalist a glowing review: “It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed.”
Supreme Court references to Publius or The Federalist continued through the nineteenth century and accelerated in the twentieth. From the 1930s to the end of the century, citations of The Federalist (and in later years, The Federalist Papers) doubled every twenty to thirty years. Legal scholars, following the High Court’s lead, have dissected Publius’s views in more than 9,700 articles. Meanwhile, his words have become part of the political vernacular. During the Supreme Court nomination proceedings for Chief Justice John Roberts and Associate Justice Samuel Alito, the nominees and examining senators cited The Federalist eleven times.46
Judges, attorneys, political figures, and even bloggers will continue to cite The Federalist as long as the practice produces any rhetorical leverage. On the Supreme Court, as justices struggle to establish legitimacy by alleging historical authenticity, if one justice cites Publius, others who disagree with his or her opinion feel compelled to countercite. According to a survey of recent Supreme Court cases, “The relative odds of citing a Federalist Paper in majority opinion are sixteen and twenty-fold higher if a dissenting or concurring opinion also cited the Federalist Papers.” Given that unilateral disarmament does not appear to be an option, all it takes is a single fan of Publius on the Court to continue the war for The Federalist.47
Whereas Publius has reigned supreme as the nation’s authoritative commenter on the Constitution, historians and legal scholars in recent years have paid more attention to the political purpose of his essays. The “overriding imperative” of authors on both sides of the ratification debates was “to determine whether the Constitution would be adopted, not to formulate definitive interpretations of its individual clauses,” wrote Jack Rakove in 1996. Naturally, these scholars began to ask: by what authority can The Federalist, an avowedly biased tract, lay claim to the privileged status it has enjoyed for two centuries?48
Several justifications have been posited.
Some say its iconic status is reason enough. It is so celebrated, so revered, that we find it “simply unthinkable” that courts could ignore it. But this reasoning is clearly circular: The Federalist is authoritative because we have claimed it to be so.49
Some say it provides insights into the “legislative history” of the Constitution because its two leading authors figured prominently at the Convention. But Madison and Hamilton were only two of fifty-five framers, and they both defended views in The Federalist that differed markedly from those they had expressed at the Federal Convention. (For Madison’s contradictory positions, see chapter 5.) Further, if we really wish to know about the Convention, Madison’s extensive transcriptions of the debates constitute a far better source.
Some say The Federalist provides insights into the legislative history of the ratification conventions, which made the actual decisions to adopt the Constitution, but we have no historical evidence suggesting that the essays influenced outcomes in any convention.
Some, including Justice Scalia, say that Publius helps us understand how words and arguments were construed at the time, thereby revealing “how the text of the Constitution was originally understood.” This may be true, but why pay such attention to a single document and so little to all the other writings of the time, penned by the Constitution’s opponents as well as its supporters, that could similarly disclose how contemporaries used words and understood the constitutional text? Scalia demonstrates that The Federalist can be historically useful, but he stops far short of proving it is authoritative.50
Perhaps the most common argument, made implicitly more frequently than explicitly, is that the authors were wise and brilliant men who took the time to think more deeply about the Constitution than anybody else. But if Hamilton was indeed wise and brilliant, when exactly was that so? When he penned his essays as Publius or when he was touting a stronger, more centralized government both before and after that time? And when was Madison so brilliant? While advocating a sweeping national veto of state laws at the Federal Convention, while stating that federal powers were “few and defined” in The Federalist, or while claiming a state’s right to “interpose” and declare federal law “no further valid” a decade later? (See chapter 5.) Both Hamilton and Madison displayed brilliance in their various political incarnations, but brilliance and authoritativeness are not synonymous. The former can be fickle, the latter not.51
Where, then, d
oes that leave us? Although the purposive intent of The Federalist—securing ratification—skews the text and undermines its reliability as an authoritative source for interpreting the Constitution, this political function augments rather than diminishes its historical significance. Precisely because the essays were geared to persuade a broad public, they tell us much more than a merely abstract treatise on government possibly could. The authors confronted strong opposition, and we have much to gain by observing the ways they tried to win it over.52
The Federalist is instructive on another level. Even though it does not “explicate” the Constitution, it reflects competing strains within that document. It is no accident that in the hotly contested constitutional debates of the early republic, advocates of opposing positions—strict versus loose construction of the “necessary and proper” clause, national supremacy versus state sovereignty—found support from Publius. Until the 1840 publication of Madison’s Notes of Debates in the Federal Convention of 1787, which shed light on the framers’ arguments and decisions, Americans had direct access only to limited and fragmentary accounts of the Convention’s proceedings and settled for Publius instead. Historically, we see in the many citations of The Federalist how Americans have always posited rival interpretations of the Constitution. We learn questions, not answers.
The Federalist reveals much, but it is not conclusive. It does not tell us what the framers of the Constitution really meant in any given passage or what those who ratified the Constitution thought that passage meant. To discover the intent of the framers, if indeed that is ever possible (see chapter 8), we would do better to examine Madison’s Notes of Debates in the Federal Convention. To discover what the Constitution meant to those who actually voted on ratification, we should look directly at the proceedings of the state conventions, where the document was debated item by item. Those proceedings enjoy a level of authority that The Federalist cannot possibly claim. In Madison’s words, delegates to the state conventions, elected by the people and responsible to them, gave the Constitution “all the authority which it possesses.”53