Constitutional Myths

by Ray Raphael

  33.Gregory E. Maggs, “A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution,” George Washington University Law School, Public Law Research Paper No. 258, March 9, 2007, 838, 831, 840, http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MAGGS.pdf. The “haste” excuse is politically naive. Maggs plays the innocent when he states without evidence that Hamilton, Madison, and Jay “did not have time to adjust their vocabulary” or to modify “how they spoke in the Federalist Papers because of their own political goal of obtaining ratification of the Constitution.” If the avowed purpose of the project was to push for ratification, what advocate would not weigh his words with that end in mind? The authors “probably had little reason to want to misrepresent what the Convention intended,” Maggs contends, but in fact they had a very good reason: to make the proposed new government appear less threatening so people would accept it (837–38).

  34.In The Federalist No. 59, Hamilton reported that a quorum in the Senate would “consist of sixteen members,” although at the time he wrote eleven states had ratified the Constitution, yielding twenty-two senators, and according to Article I, Section 5, Clause 1, quorum was to be a simple majority, in this case twelve. If all thirteen states were counted, the majority of twenty-six senators would be fourteen. In The Federalist No. 84, Hamilton wrote, “The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed.” This was actually the number of representatives only, listed in a state-by-state enumeration in Article I, Section 2, Clause 3, and did not include senators; once all thirteen states had ratified, the total number in both houses of Congress would total ninety-one. In Federalist No. 68, Hamilton explained the runoff for executive officers in case the electors did not produce a majority: “The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter.” This was not the case. According to Article I, Section 2, Clause 3, the House, not the Senate, chose the vice president as well as the president if electors produced no majority winner, and only if the House produced two or more runners-up with equal votes would the Senate break that tie. The first two of these mistakes, whether intentionally or not, furthered arguments Hamilton was making at those moments. A larger quorum in the Senate produced greater security from intrigue, and a smaller number of representatives and senators would reduce the expenses of the federal government. See Seth Barrett Tillman, “The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation,” West Virginia Law Review 105 (March 2003): 603–13. Regarding Hamilton’s prevarication: Selection of the president had been a major focus of debate on several different occasions over the course of the Federal Convention. Although Hamilton had missed some of those sessions, he was present when delegates overwhelmingly rejected Wilson’s idea for popular selection on June 2, and he had returned in time to participate in the floor discussion of the elector scheme presented by the Committee of Eleven in early September. He had been one of five delegates appointed on September 8 to the Committee of Style, charged with fine-tuning the wording of the entire Constitution in the final days, and in that capacity he must have read and considered the clause in the Committee of Eleven’s report and adopted by the Convention: “Each State shall appoint in such manner as its Legislature may direct, a number of electors …” Hamilton’s Committee of Style made one small change in this provision, substituting a more legalistic “the Legislature thereof” for “its Legislature.”

  35.Rossiter, Federalist Papers, xiii. For calling Hamilton’s position on removal an “error,” see Maggs, “Concise Guide,” 837–38. For more on what historians call “the great removal debate,” see Raphael, Mr. President, 161–66. For the debate itself, see Annals of Congress, 1:473–599.

  36.See Seth Barrett Tillman, “The Puzzle of Hamilton’s Federalist No. 77,” Harvard Journal of Law and Public Policy 33:1 (2010): 149–67. Tillman tries to untangle the puzzle by making a purely legalistic distinction between the words “displace” (Hamilton’s term) and “removal” (the term used in the congressional debates). This subtle distinction supposedly makes Hamilton’s views logically consistent, but that is not even necessary. There is no political or historical reason why Hamilton’s words to one audience in one context should not contradict his words to another audience in a different context.

  37.R. B. Bernstein identifies seven arguments for how to resolve the Constitution’s troublesome silence on dismissals. “The Constitution As an Exploding Cigar and Other ‘Historian’s Heresies’ About a Constitutional Orthodoxy,” New York Law School Law Review 55 (2010–11): 1042–43. It took Hamilton little time to discover a different error in the Constitution, not just an omission but a genuine “defect.” On January 25, 1789, ten days before electors were to cast their votes for the first president and vice president under the new Constitution, he wrote to James Wilson: “Every body is aware of that defect in the constitution which renders it possible that the man intended for Vice President may in fact turn up President.” Since electors were to cast two votes but were not directed to distinguish between president and vice president, those preferring the second candidate on a ticket to the top candidate could “throw away a few votes” for the presidential candidate, thereby allowing his running partner to become president. The system could be gamed, and Hamilton himself attempted to do so in the elections of 1789, 1796, and 1800. See Raphael, Mr. President, 199–206, and Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, CT: Yale University Press, 2001), chap. 5.

  38.Annals of Congress, 1:474; William Loughton Smith to Edward Rutledge, June 21, 1789, in South Carolina Historical Magazine 69 (1968), 6, 8, cited in Tillman, “Puzzle of Hamilton’s Federalist No. 77,” 162. Tillman dismisses Hamilton’s disavowal because it does not live up to legal standards of proof, but historical standards are quite different. Smith’s letter to Rutledge, written at the time, is extant. Benson’s report of the communication with Hamilton is plausible, while any conjecture that this conversation was manufactured is implausible. While Hamilton’s exact words are admittedly open to question, the basic message, that he repudiated his words in The Federalist No. 77, is not only plausible but also consistent with all other evidence. The only inconsistency lies with Hamilton’s stated views in diverse contexts; legally this might create a problem, but historically it does not.

  39.This argument set up Hamilton’s opposition to a Bill of Rights, the subject of his next essay, The Federalist No. 84: protections against nonenumerated powers would be pointless (see chapter 7).

  40.Hamilton to Washington, February 23, 1791, Hamilton, Papers, 8:98, 100, 103. Here is Hamilton’s more complete statement of his argument reversing the burden of proof: “The very general power of laying & collecting taxes & appropriating their proceeds—that of borrowing money indefinitely—that of coining money & regulating foreign coins—that of making all needful rules and regulations respecting the property of the United States—these powers combined, as well as the reason & nature of the thing speak strongly this language: That it is the manifest design and scope of the constitution to vest in congress all the powers requisite to the effectual administration of the finances of the United States. As far as concerns this object, there appears to be no parsimony of power. To suppose then, that the government is precluded from the employment of so usual as well as so important an instrument for the administration of its finances as that of a bank, is to suppose, what does not coincide with the general tenor & complexion of the constitution, and what is not agreeable to impressions that any mere spectator would entertain concerning it. Little less than a prohibitory clause can destroy the strong presumptions which result from the general aspect of the government. Nothing but demonstration shou
ld exclude the idea, that the power exists” (Papers, 8:132).

  41.In fact, many Americans were scared by the mere possibility of such a thing as the incorporation of a national bank. Six of the eight states that proposed amendments to the Constitution at their ratification conventions (Massachusetts, New Hampshire, Virginia, New York, North Carolina, and Rhode Island) wanted to prohibit the government from granting exclusive advantages of commerce, such as would be enjoyed by investors in the Bank of the United States.

  42.Morton J. Frisch, ed., The Pacificus-Helvidius Debates (Indianapolis: Liberty Fund, 2007), 1, 11–13.

  43.Ibid., 64.

  44.Scalia’s remarks were reported by Representative Jan Schakowsky (D-IL), in Huffington Post, January 25, 2011. Souter’s quotation from Printz v. United States (1997), Cornell University Law School, Legal Information Institute, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0898_ZD1.html. Citation numbers are from Melvyn R. Durchslag, “The Supreme Court and the Federalist Papers: Is There Less Here Than Meets the Eye?” William & Mary Bill of Rights Journal 14 (2005): 346, 344. Multiple citations are also discussed in Pamela C. Corley, Robert M. Howard, and David C. Nixon, “The Supreme Court and Opinion Content: The Use of the Federalist Papers,” Political Research Quarterly 58:2 (June 2005): 329–40. Citations from The Federalist in Printz are discussed by William N. Eskridge Jr.: “The Federalist cannot be understood without exploring the larger historical context. Even if Madison’s and Hamilton’s essays were not strategic documents and were representative views of citizens at the time, scholars must refer to other contemporary documents and current theories of the ideological debate during the founding period to understand the essays’ meanings. This would involve mastery of a massive body of scholarship that is not evidenced by either judges or many law professors at this time. In Printz, for example, Justices Scalia and Souter sparred over the proper construction of Hamilton’s The Federalist No. 27. Souter read this essay to defend the proposition that state officials would be ‘incorporated’ into national programs at the discretion of Congress, a reading disputed by Scalia. Missing in the heated exchange was any historical context: To what Anti-Federalist argument was Hamilton responding? How did the argument mesh with Hamilton’s theory of state versus national sovereignty (a terribly complicated issue but one critical to one’s reading of The Federalist No. 27)? How widely was Hamilton’s theory of sovereignty held? His views about national supremacy? The Justices did not address the primary documents and historiographical literature addressing these issues.” “Textualism and Original Understanding: Should the Supreme Court Read The Federalist but Not Statutory Legislative History?” George Washington Law Review 66 (1998): 1309–10.

  45.Jack N. Rakove, “Early Uses of The Federalist,” in Charles R. Kesler, ed., Saving the Revolution: The Federalist Papers and the American Founding (New York: The Free Press, 1987), 237–47.

  46.Maggs, “Concise Guide,” 802, 819; Rakove, “Early Uses of The Federalist,” 234–49. For increased use in recent years, see Ira C. Lupu, “Time, the Supreme Court, and The Federalist,” George Washington Law Review 66 (1998): 1324–35. William H. Manz tabulates citations of The Federalist for the October 1996 term, not only in majority opinions but also in petitioners’ briefs, respondents’ briefs, and amicus briefs, and he compares these with citations from legislative and other historical sources. Manz, “Citations in Supreme Court Opinions and Briefs: A Comparative Study,” Law Library Journal 94 (2002): 282–83. See also Buckner F. Melton Jr., “The Supreme Court and The Federalist: A Citation List and Analysis, 1789–1996,” Kentucky Law Journal 85 (1996): 243–345, and supplements for 1996–2001 (90 [2001]: 415–40) and 2001–2006 (95 [2006]: 749–64). Nomination proceedings: Dan T. Coenen, “A Rhetoric for Ratification: The Argument of The Federalist and Its Impact on Constitutional Interpretation,” Duke Law Review 56 (2006): 472.

  47.Pamela C. Corley, Robert M. Howard, and David C. Nixon, “The Supreme Court and Opinion Content: The Use of the Federalist Papers,” Political Research Quarterly, 58:2 (June 2005): 336.

  48.Rakove, Original Meanings, 17. As early as 1952, Alpheus T. Mason argued persuasively that strategic considerations drove the ratification debates in various directions: “To quiet the fears of opponents, advocates of ratification said things which, in later years, proved embarrassing to themselves and misleading to scholars. On the other hand, certain of the Constitution’s enemies turned alarmist, portraying the proposed national charter in the most extreme terms. The strategy obscured positions on all sides and made the Constitution’s meaning less than crystal clear.” Mason, “The Federalist—A Split Personality,” American Historical Review 57:3 (April 1952): 625–43, reprinted in John P. Roche, ed., Origins of American Political Thought (New York: Harper and Row, 1967), 163, 168, quoted in Peter J. Smith, “Sources of Federalism: An Empirical Analysis of the Court’s Quest for Original Meaning,” UCLA Law Review 52 (2004), n. 159. Other works discussing the grounds for the alleged authoritative stature of The Federalist include (among many others) Coenen, “Rhetoric for Ratification,” 469–543; James W. Ducayet, “Publius and Federalism: On the Use and Abuse of The Federalist in Constitutional Interpretation,” New York University Law Review 68 (1993): 821–69; Eskridge, “Should the Supreme Court Read The Federalist?” 1301–23; Tillman, “Federalist Papers as Reliable Historical Source Material,” 601–19; Durchslag, “Supreme Court and the Federalist Papers,” 243–349. John F. Manning argues persuasively that even an originalist judge (see chapter 8) basing his opinion of textual evidence alone cannot cite The Federalist as determinative of the meaning of a specific passage: “Modern readers should approach The Federalist the same way a reasonable ratifier would have. A textualist judge must never simply conclude that ‘the Constitution means X because this or that number of The Federalist said that it means X.’ To be sure, The Federalist has significant interpretive value as a detailed, contemporaneous exposition of the Constitution by authors who were intimately familiar with its legal and political background. The Federalist is nonetheless a piece of political advocacy, whose contents may at times reflect the exigencies of debate, rather than a dispassionate account of constitutional meaning.” “Textualism and the Role of The Federalist in Constitutional Adjudication,” George Washington Law Review 66 (1998): 1339.

  49.The quote is from Coenen, “Rhetoric for Ratification,” 528. The taxonomy of justifications that follows is based on Coenen, 528–40.

  50.Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), 38.

  51.Coenen offers a more sophisticated alternative to these traditional justifications: “Precisely because Publius’s purpose was to gain support from a broad and diverse audience with arguments based on reason, the views set forth in the Papers could be neither sloppy nor personal nor idiosyncratic. Rather, Publius’s depiction of the Constitution had to reflect a broadly acceptable view of the document’s meaning. And because that depiction had to reflect a broadly acceptable view, it seems fair to conclude that it articulated something that approximated a consensus” (Coenen, “Rhetoric for Ratification,” 539). There is a germ of truth in this, but only a germ. Yes, Publius’s arguments were rational, and yes, they were aimed at a broad public; yet so too were other essays written for and against the Constitution. Why are some rational arguments, on one side only, to be considered authoritative and others not? The notion that there was any sort of “consensus” on the Constitution would be big news to the people of those times. The Constitution’s supporters and opponents tugged mightily for the soul of the nation. The war of words was occasionally punctuated by physical skirmishes. The American nation was young and malleable, without a firm sense of national tradition, and in this moment of decision the stakes were unimaginably high.

  52.We learn from Publius that despite residual localism and fears of centralization, the idea of “Union,” featured in the first fourteen essays, could be politically attractiv
e. In the next set of essays, Publius detailed the failures of the Articles of Confederation and of confederations generally, opening the way for a truly national government “with the power of extending its operations to individuals” rather than through the intermediary of state governments. Due to deep traditions of colonial provincialism this embrace of national government was a revolutionary notion, but it was vital to the Constitution so Publius tackled it forthrightly. Likewise, because Publius devoted the next seven essays (30 through 36) to the single issue of national taxation, we can infer that he sensed great resistance in that regard but had no choice but to confront it, for without the power to tax the federal government could not function (see chapter 2). The emphasis in essays 37 through 46—the shared sovereignty between the federal and state governments—suggests that people would never accept the new plan unless they were convinced that state governments would survive in some meaningful manner. The following twenty essays touted the cross-checking mechanisms of the various branches, with an emphasis on the distinctions between the two houses of Congress; this argument too was geared to alleviate fears of concentrated power (see chapter 4). Essays 67–78 attempted to ease concerns over the seemingly greatest concentration of power: the presidency. People hoped to have a say in the choice of the president and they wanted to circumscribe his powers, Publius observed, and he wrote these essays with those desires in mind. In the final set of essays, Publius tried to balance the need for a supreme judicial authority with concerns that such a body would undermine state judicial systems or individual liberties. In sum, by watching Hamilton, Madison, and Jay allay people’s fears, giving ground on some counts but holding firm on others, we see how the Constitution’s radical enlargement of centralized power could be presented in such a way that sufficient numbers of Americans might accept the proposed new plan.