A NEW KIND OF FEDERALISM

The first and most obvious approach The Federalist Papers used was a new definition of federalism. Having just won a revolution against an oppres­sive monarchy, the former American colonists were in no mood to replace it with another centralized, unre­strained regime. On the other hand, their experience with instability and disorganization under the Articles of Confederation, due to jealousy and competition between the individual states, made them recep­tive to the creation of a stronger na­tional govern­ment. A num­ber of The Federalist Papers argued that a new kind of balance, never achieved else­where, was possible. Indeed, the Papers were themselves a balance be­tween the nationalist propensities of Hamilton, who reflected the com­mercial interests of a port city, New York, and the wariness of Madison, who shared the suspicion of distant authority that was widely held by Virginia farmers.

Madison proposed that, instead of the absolute sovereignty of each state under the Articles of Confed­eration, the states would retain a "residual sovereignty" in all those areas that did not require national concern. The very process of ratifi­cation of the Constitution, he argued, symbolized the concept of federalism rather than nationalism. He said: "This assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and individual states to which they respectively belong.... The act, therefore, establishing the Consti­tution, will not be a national but a federal act."

Hamilton suggested what he called a "concurrency" of powers between the national and state governments. But his analogy of planets revolving around the sun yet retaining their separate status placed greater emphasis on a central authority. Hamilton and Jay (also from New York) cited examples of alliances in ancient Greece and contemporary Europe that invariably fell apart in times of crisis. To the authors of The Federalist Papers, whatever their differ­ences, the lesson was clear: survival as a respected nation required the transfer of important, though limit­ed, powers to the central govern­ment. They believed that this could be done without destroying the identity or autonomy of the separate states.

CHECKS AND BALANCES

The Federalist Papers also provide the first specific mention found in polit­ical literature of the idea of checks and balances as a way of restricting governmental power and preventing its abuse. The words are used mainly in reference to the bicameral legisla­ture, which both Hamilton and Madison regarded as the most pow­erful branch of government. As originally conceived, the presumably impetuous, popularly elected House of Representatives would be checked and balanced by a more conservative Senate chosen by state legislatures. (The Seventeenth Amendment to the Constitution, added in 1913, changed this provision to mandate the popular election of senators.) On one occasion, however, Madison argued more generally that "office should check office," and Hamilton observed that "a democratic assem­bly is to be checked by a democratic senate and both these by a democra­tic chief magistrate."

In his most brilliant essay (Number 78), Hamilton defended the Su­preme Court's right to rule upon the constitutionality of laws passed by national or state legislatures. This historically crucial power of "judicial review," he argued, was an appropri­ate check on the legislature, where it was most likely that "the pestilential breath of faction may poison the fountains of justice." Hamilton explicitly rejected the British system of allowing the Parliament to over­ride by majority vote any court deci­sion it finds displeasing. Rather, "the courts of justice are to be considered the bulwarks of a limited Consti­tution against legislative encroach­ments." Only the painstaking and difficult process of amending the Constitution, or the gradual transformation of the Supreme Court's members to another viewpoint, could reverse the Court's interpreta­tion of that document.

HUMAN NATURE, GOVERNMENT, AND INDIVIDUAL RIGHTS

Behind the notion of checks and bal­ances lay a profoundly realistic view of human nature. While Madison and Hamilton believed that people at their best were capable of reason, self-discipline, and fairness, they also recognized their susceptibility to passion, intolerance, and greed. In a famous passage, after discussing what measures were needed to pre­serve liberty, Madison wrote: "It may be a reflection on human nature that such devices should be necessary to control 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, neither exter­nal nor internal controls on govern­ment would be necessary. In framing government which is to be admin­istered by men over men, the great difficulty lies in this: You must first enable the government to control the governed, and in the next place oblige it to control itself."

In the most striking and original of The Federalist Papers (Number 10),Madison addressed this double chal­lenge. His central concern was the need "to break and control the vio­lence of faction," by which he meant political parties, and which he regarded as the greatest danger to popular government: "I understand a number of citizens... 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."

These passions or interests that endanger the rights of others may be religious or political or, most often, economic. Factions may divide along lines of haves and have-nots, credi­tors and debtors, or according to the kinds of property possessed. Madi­son wrote: "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 themselves into different classes, actuated by different senti­ments and view. The regulations of these various and interfering inter­ests forms the principal task of mod­ern legislation...."

How can fair, rational, and free peo­ple mediate so many competing claims or the factions that derive from them? Since it is impossible to outlaw passion or self-interest, a proper form of government must be able to prevent any faction, whether minority or majority, from imposing its will against the general good. One defense against an overbearing faction, Madison said, is the republi­can (or representative) form of gov­ernment, which tends "to refine and enlarge the public views by passing them through the medium of a cho­sen body of citizens."

But even more important, according to Madison, was broadening the geographic and popular basis of the republic, as would happen under the national government proposed by the new Constitution. He wrote: "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.... 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."

What is being urged here is the prin­ciple of pluralism, which welcomes diversity both for its own sake as a testimony to individual variety and freedom, but even more crucially for its positive effect in neutralizing conflicting passions and interests. Just as the great variety of religious faiths in the United States makes unlikely the imposition of a single established church, so the variety of states with many divergent regions and concerns makes unlikely the national victory of an inflamed and potentially oppressive faction or party. A confirmation of Madison's argument can be found in the evolu­tion of the major American politi­cal parties, which have tended to be moderate and nonideological because they each encompass such a diversity of sectional and economic interests.

THE SEPARATION OF POWERS

The idea of separating powers among the various branches of gov­ernment to avoid the tyranny of con­centrated power falls under the larg­er category of checks and balances. But The Federalist Papers see another virtue in the separation of powers, namely, an increase in governmental efficiency and effectiveness. By being limited to specialized func­tions, the different branches of gov­ernment develop both an expertise and a sense of pride in their roles, which would not be the case if they were joined together or overlapped to any considerable degree.

Qualities that might be crucial to one function could be ill-suited for another. Thus Hamilton termed "energy in the executive" as essential to defending the country against for­eign attacks, administering the laws fairly, and protecting property and individual liberty, which he viewed as closely related rights. On the other hand, not energy but "deliber­ation and wisdom" are the best qual­ifications for a legislator, who must earn the confidence of the people and conciliate their divergent interests.

This difference of needs also explains why executive authority should be placed in the hands of one person, the president, since a plural­ity of executives could lead to paral­ysis and "frustrate the most impor­tant measures of government, in the most critical emergencies of the state." That is, once the legislature, reflecting the will of the people, has rendered its deliberate and fully debated judgment by passing a law, the executive must firmly carry out that law without favoritism, resisting any self-interested pleas for excep­tion. And in the event of an attack by a foreign state, the executive must have the power and energy to respond immediately and forcefully. As for the judiciary, the qualities wanted there are special as well: not (he executive's energy and dispatch, nor the legislator's responsiveness to popular sentiment or ability to com­promise, but "integrity and moderation." And, by being appointed for life, judges would have freedom from popular, executive, or legislative pressures.

THE PERENNIAL QUESTIONS OF POLITICS

The memorable observations in The Federalist Papers about government, society, liberty, tyranny, and the nature of political man are not always easy to locate. Much in these essays is dated or repetitious or archaic in style. The authors had nei­ther the time nor the inclination to put their thoughts in an orderly and comprehensive form. Yet The Feder­alist Papers remain indispensable to anyone seriously interested in the perennial questions of political theo­ry and practice raised by Hamilton and Madison. "No more eloquent, tough-minded, and instructive answers have ever been given by an American pen," wrote the distin­guished political historian Clinton Rossitor in the 20th century. "The message of The Federalist reads: no happiness without liberty, no liberty without self-government, no self-government without constitutional­ism, no constitutionalism without morality—and none of these great goods without stability and order."