by Ray Raphael
37.Numbers for the Google search are for December 20, 2011. Madison’s 1794 quotation on the relief for San Domingo refugees, within the context of the congressional debate, is in Annals of Congress, 4:170.
38.Madison’s sponsorship of powers of incorporation, on August 18 and September 14, would take a peculiar twist. During the national bank debate in 1791, he claimed that Congress lacked the authority to incorporate, and to prove it, he “well recollected that a power to grant charters of incorporation had been proposed in the General Convention but rejected.” (Annals of Congress, 2:1945 [February 2, 1791]; Rakove, Original Meanings, 351.) He had turned full circle, and he used his earlier defeat to demonstrate, in his mind, that the framers did not intend to give Congress the power to incorporate. In this debate, Madison came as close to breaking his oath of secrecy about the Convention’s deliberations as he had ever done. (See chapter 8 for more on Madison’s citation of his own previous motion, but to reverse effect.)
39.Here is Madison’s full distilling of a speech he made in favor of national control of the militia on August 23: “As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.”
40.Supreme Court of the United States, National Federation of Independent Businesses v. Sebelius, Secretary of Health and Human Services (2012), Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, 3, http://www.supremecourt.gov/opinions/11pdf/11–393c3a2.pdf.
6. The Federalist Papers
1.At http://www.saveourcountrynow.net/archives/tag/tea-party.
2.At http://www.law.cornell.edu/supct/html/95–1478.ZD1.html.
3.For authorship of the essays, see DHRC, 13:488–90. In addition to Publius, several writers published serial essays in the newspapers under pseudonyms that were also drawn from Roman history: Caesar, Brutus, Cato, Fabius, Cincinnatus.
4.Hamilton, Papers, 4:287–88; Madison, Papers, 10:259–60; DHRC, 13:486–88. Duer’s essays later appeared in New York newspapers under the pen name “Philo-Publius.”
5.In this chapter, as throughout the book, when I cite any essay from The Federalist by number, I offer no further reference. There are countless print editions and ways to access The Federalist on the Internet, and readers will undoubtedly have their own preferences. I find the one posted by the Avalon Project, from the Yale Law School, easy to navigate: http://avalon.law.yale.edu/subject_menus/fed.asp.
6.Hamilton’s naming the letters “The Federalist” was itself a political move. Late in 1786 and early in 1787, those who urged a stronger confederation labeled themselves “Federalists” and called those more wary of change “narrow-soul’d, antifederal politicians in the several States.” Fortuitously, the 1787 Convention, charged with revising and upgrading the Articles of Confederation, was dubbed “the federal convention.” Afterward, supporters of the Convention’s proceedings used this nomenclature to solidify their claim to the word “Federalist,” which meant of course that those who opposed them were “Anti-Federalists”—negative obstructionists at best. Ironically, this rhetorical ploy reversed the use of the term “Federalist” at the Convention, where “Federalists” were those who wanted the states to continue as sovereign entities, as opposed to nationalists, who wanted a strong national government (see the Preface, above). “A union of the states merely federal” was not enough, Gouverneur Morris had maintained at the start of the Convention, for it was no more than “a mere compact, resting on the good faith of the parties.” The federal model, he said, should be supplanted by a “national, supreme government” (see chapter 1). Afterward, opponents of the proposed Constitution stayed true to use of the word at the Convention and declared themselves the true “Federalists.” On October 17, “A Democratic Federalist” penned a lengthy rebuttal to James Wilson’s famous speech in favor of the Constitution (see below). Ten days later, Hamilton published his first essay as Publius, adopting the title “The Federalist” to support views similar to Wilson’s and to oppose those of such writers as “A Democratic Federalist.” Subsequently, on November 8, “Federal Farmer” published what are now considered among the most effective “Anti-Federalist” letters, and on November 28, “A Republican Federalist” followed with his own reasons for opposing ratification of the Constitution unless there were amendments. In the tussle over the name, however, Hamilton’s side prevailed: supporters of the Federal Convention, in popular usage, became “Federalists,” like Publius (DHRC, 13:89, 193, 387 and 14:255).
7.For numbers printed and left unsold, see DHRC, 19:141.
8.Douglass Adair, “The Authorship of the Disputed Federalist Papers,” William and Mary Quarterly, 3rd ser., 1:2 (1944): 97–122 and 1:3, 235–64, reprinted as chap. 2 of Douglass Adair, Fame and the Founding Fathers: Essays of Douglass Adair, ed. Trevor Colbourn (New York: Norton for the Institute of Early American History and Culture, 1974; repr., Indianapolis, IN: Liberty Fund, 1998).
9.There were four separate editions published in 1961, two under the revised title The Federalist Papers: Clinton Rossiter, ed., The Federalist Papers (New York: New American Library/Mentor Books, 1961); Roy P. Fairfield, ed., The Federalist Papers (Garden City, NY: Anchor Books/Doubleday, 1961); Benjamin F. Wright, ed., The Federalist (Cambridge, MA: Belknap Press of Harvard University Press/John Harvard Library, 1961); Jacob E. Cooke, ed., The Federalist (Middletown, CT: Wesleyan University Press, 1961). Whereas Fairfield’s edition had little impact, Rossiter’s became a classic and remains in print today. On these editions and their relative merits, see Douglass G. Adair, “The Federalist Papers,” William and Mary Quarterly, 3rd ser., 22 (1965): 131–39, reprinted as chap. 13 of Adair, Fame and the Founding Fathers. Adair never discusses the innovative title. Cooke’s Wesleyan University Press’s edition, unlike that of the New American Library, was based faithfully on the newspaper versions, complete with the repetitive salutations for every essay: “To the People of the State of New-York.” While Cooke’s version is treated to this day as authoritative, it is not widely circulated outside scholarly circles, nor is any reprint under the original title, The Federalist.
Outside of publishing, the term “Federalist Papers” has an interesting etymology. The authors themselves referred to their separate essays as “papers,” although they never hinted that the word should become part of the title. Starting in 1912 (in both Kiernan v. Portland and Pacific States Tel. & Tel. Co. v. Oregon), Supreme Court justices used the lowercased “papers” after “Federalist” to denote essays written under the “Federalist” title. From there, in a seemingly natural but not entirely logical evolution, they eventually capitalized “Papers,” effectively including it in the title—first in United States v. South Eastern Underwriters Association in 1944 and several dozen times since then. Although the previous conjoining of “Federalist” with “papers” did provide the editors at New American Library with a trace of a precedent, their decision to give the book a new title after more than one and a half centuries was certainly a brazen move.
10.For Justice Thomas’s reference to “The Federalist Papers,” see McIntyre v. Ohio Elections Commission (1995), Missouri v. Jenkins (1995), Loving v. United States (1996), and Gonzales v. Raich (2005).
11.The 1788 bound volumes can be accessed through Early American Imprints, series I, Evans (1639–1800), doc. 21127.
12.For a listing of editions of The Federalist in the century following its publication, see Paul Leicester Ford, Pamphlets on the Constitution of the United States (Brooklyn, NY, 1888), 397–406, and Henry Cabot Lodge’s introduction, written in 1886, to The Federalist (G.P. Putnam’s Sons, 1892), xxxvi–xlii. In later years, and particularly with the addition of the word “Papers,” the title is left on its own, without a subtitle.
13.There is some justification for this omission. The original bound volumes had also dropped the repetitive salutations—but in their stead, v
ol. 1 opened with an introduction by Hamilton that stated, “It is supposed that a collection of the papers which have made their appearance in the Gazettes of this City, under the title of The FEDERALIST, may not be without effect in assisting the public judgment on the momentous question of the Constitution of the United States.” Further, on the first page of the opening essay, in large font, were the words, “Addressed to the People of the State of New-York,” thereby eliminating the need for repetition in other essays. Both features were dropped in many reprints based on the bound volumes, downplaying the local emphasis.
14.Rossiter, Federalist Papers, xii–xiii.
15.Rossiter, Federalist Papers, xi.
16.New York: Basic Books, 2008, p. 139. Rossiter, in his 1961 introduction to The Federalist Papers, took care not to make this leap. “Publius, by his own admission, spoke to a select audience of reasonable, responsible and established men,” most of whom already supported the Constitution. The “chief usefulness of The Federalist,” he concluded, “was as a kind of debaters handbook in Virginia and New York.” Note Rossiter’s continued use of the old title, even as his publishers tacked on a new one (Rossiter, Federalist Papers, xi).
17.Washington to Hamilton, August 28, 1788, Washington, Papers (CS), 6:480–81.
18.DHRC, 13:493–94. Rufus King, a Federalist from Massachusetts who had taken an active role at the Federal Convention, commented on Publius’s lack of popular appeal after Publius’s first twenty-six essays: “The ‘Landholder’ will do more service our way, than the elaborate works of Publius.” “Landholder”—Oliver Ellsworth, another Federalist veteran of the Convention—did not shy from addressing his opponents directly, calling them out by their names, and readers, or at least newspaper editors, preferred this style. The sixth of Landholder’s thirteen essays, which probably inspired King’s comment, was reprinted in eighteen newspapers in eight states outside of Connecticut, Ellsworth’s home state. The Federalist No. 19, published two days earlier, was reprinted in only one state outside of Publius’s putative home state of New York, and The Federalist No. 20, published one day after Landholder VI, was not published in a single out-of-state paper. Rufus King to Jeremiah Wadsworth, December 23, 1787, DHRC, 15:71. For the authorship of Landholder, see DHRC, 13:561. For Landholder’s essays published shortly before King’s comment, see DHRC, 14:231–35, 334–39, and 398–403. For circulation numbers, see DHRC, 14:533.
19.DHRC, 13:490 for Madison’s and Washington’s attempt to circulate The Federalist in Virginia. DHRC, 19:540–49 for newspaper publication of Publius’s essays.
20.DHRC, 13:337–38 and 344 for newspaper publication of Wilson’s speech. For reprinting of more than 800 essays and articles from the ratification debates, see the appendices in DHRC, vol. 13–18. For a visual representation of how Publius compares to the others, note in particular 15:575–79, 16:597–600, and 18:407; there, if a piece appears in only one state, the odds are strong that it’s one of Publius’s. It can be argued that newspapers didn’t reprint Publius once bound volumes were promised, but given that the second volume, which included the majority of the essays (numbers 37 through 85), did not appear until very late in the game (see below), this excuse cannot be used to promote their impact.
21.The numbers for Common Sense most often cited—100,000, 120,000, and 150,000—come from Paine’s boastful pronouncements. They are estimates only, for Paine had little to do with most of the printings. There is no independent corroboration, and in-depth analysis of the evidence points to a lower figure. Even so, it seems likely that somewhere in the neighborhood of fifty thousand is realistic, one hundred times the number for The Federalist. (Trish Loughran, The Republic in Print: Print Culture in the Age of Nation-Building, 1770–1870 (New York: Columbia University Press, 2009), 40–58, 452–60.
22.DHRC, 18:83–85, 20:878–80, 1116–18.
23.New York Journal, June 12, 1788, in DHRC, 21:1582. The landslide against the Constitution might have been slightly exaggerated by the sympathetic New York Journal, but the Albany Gazette, June 5, 1788, gives a preliminary report of a 2-to-1 majority for the Constitution’s opponents (DHRC, 21:1581). Publius’s newspaper articles had not effectively stemmed that landslide. Following The Federalist No. 21, only one of the remaining sixty-four essays appeared in any of the state’s papers north of the city (DHRC, 19:540–49).
24.Jay’s Address to the People of New-York, on the Subject of the Constitution was published two weeks before New York’s elections for delegates, and contemporary reports suggest that had it not been published, the majority of the convention opposed to the Constitution would have been greater yet. For its influence, see Maier, Ratification, 336–38, and DHRC, 20:922–42. Webster quote: DHRC, 20:924. The conversion quotation, one of several testifying to Jay’s influence, is from Samuel Blachley Webb to Joseph Barrell, April 27, 1788, ibid., 924. Jay’s Address was reprinted in its entirety in serial form in seven out-of-state newspapers, a mark no group of Publius’s essays ever achieved. Federalists focused specifically on circulating it in New Hampshire, which soon became the ninth and deciding state to ratify the Constitution. For Jay’s Address see also chap. 3, n. 47.
25.Reprints of The Federalist No. 85: DHRC, 18:137. To win enough opposition votes for ratification in New York, Federalist delegates did allow the New York Convention to call for a second constitutional convention, but this new convention would be only to consider proposed amendments. The final quote is from Glenn Beck, The Original Argument: The Federalists’ Case for the Constitution Adapted for the 21st Century (New York: Mercury Radio Arts, 2011), 11. Jay’s concern was that to call a second convention without first approving the results of the first would produce political bedlam, and in light of the political discord already displayed in the ratification debates, that argument, in the words of Federalist Noah Webster, was “altogether unanswerable” (DHRC, 20:924).
26.Despite the vow of secrecy, rumors of Hamilton’s June 18 speech at the Convention (see the following paragraph in the text) had leaked out and were used by the Constitution’s opponents to discredit the proposed Constitution. Also, some opponents speculated that Hamilton was Publius, but that was not confirmed.
27.“Conjectures about the New Government,” an unpublished and undated manuscript in Hamilton’s handwriting, probably written sometime between September 17 and September 30 (Hamilton, Papers, 4:276).
28.Quotations in these paragraphs are from Hamilton’s speech to the Federal Convention on June 18 and from The Federalist No. 69.
29.Hamilton’s notes are from Hamilton, Papers, 4:178–87. This quote is on 186.
30.Jay makes the same mistake in The Federalist No. 64: “They [delegates to the Federal Convention] have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose.” Madison got it right. In Federalist No. 44 he wrote, “The election of the President and Senate, will depend, in all cases, on the legislatures of the several States,” and in Federalist No. 45, “Without the intervention of the State Legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves determine it.”
31.For Hamilton’s obsession with electors and the need to place them at a considerable remove from the people, note the convoluted and nearly incomprehensible electoral plan he penned near the close of the convention, transcribed in Hamilton, Papers, 4:259–61. Some historians suggest that the framers rejected popular election of the president for mechanical reasons, not because they disapproved of popular elections per se. It would have been impossible to create an election machinery on a national scale, they say, and any attempt to develop a uniform franchise requirement would have torn the Convention asunder. This begs the question. The framers could have called for popular elections in each state without a federal machinery; such elections could be conducted by state governments and open to voters enfranchised by local standards. They had no difficul
ty in reverting to state standards in legislative elections, and they could have done the same for executive elections. Further, to prevent a state from achieving undue influence by expanding its electorate and boosting its vote totals, they could have weighted each state’s popular votes according to a preexisting formula, just as they did with their elector plan, and that formula might well have been the same as that of the final system, based on the total number of representatives and senators from each state. One handy way of doing this would have been to give each state a certain number of electors, but rather than allow these electors to make their own decisions, bind them to the results of popular elections, as is the custom today. Expecting representatives to follow instructions from their constituents was common in New England and practiced to some extent elsewhere during the Revolutionary era, so it would not have been a stretch to build on this custom and have the populace instruct electors. (See Ray Raphael, “The Democratic Moment: The Revolution in Popular Politics,” in Edward G. Gray and Jane Kamensky, eds., The Oxford Handbook of the American Revolution [New York: Oxford University Press, 2012].) In sum, there was no objective or mechanical reason to institute an intermediate level of decision makers between the people and the president; that was a discretionary decision to keep the people from voting directly for the president. For a full treatment of the issues surrounding the selection of the presidency at the Convention, see Ray Raphael, Mr. President, chap. 3–5.
32.“Unreasonableness of the people”: Hamilton, Papers, 4:185. “Popular views”: DHRC, 22:1768. Tillinghast quote: DHRC, 22:1796. At the New York convention, Hamilton, who had expressed such harsh words about republican government at the Federal Convention, now embraced it: “After all, Sir, we must submit to this idea, that the true principle of a republic is, that the people should choose whom they please to govern them.” DHRC, 22:1773. See also Maier, Ratification, 355.