By John Frisby • Nov 13th, 2008 • Category: Uncategorized

The Federalist Papers are a series of 85 articles advocating the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788. A compilation of these and eight others, called The Federalist, was published in 1788 by J. and A. McLean.

The Federalist Papers serve as a primary source for interpretation of the Constitution, as they outline the philosophy and motivation of the proposed system of government. The authors of the Federalist Papers wanted to both influence the vote in favor of ratification and shape future interpretations of the Constitution. According to historian Richard B. Morris, they are an “incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer.”

The articles were written by Alexander Hamilton (51 articles: nos. 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85), James Madison (27 articles: nos. 10, 14, 18–20, 37–58, and 62–63), and John Jay (5 articles: 2–5 and 64). They appeared under the pseudonym “Publius,” in honor of Roman consul Publius Valerius Publicola. Madison is generally credited as the father of the Constitution and became the fourth President of the United States. Hamilton was an active delegate at the Constitutional Convention, and became the first Secretary of the Treasury. John Jay became the first Chief Justice of the United States.

Federalist No. 10, which discusses the means of preventing faction and advocates for a large republic (and warns of the dangers of a democracy), is generally regarded as the most important of the 85 articles from a philosophical perspective. Federalist No. 84 is also notable for its opposition to a Bill of Rights. Federalist No. 78 is another important one, laying down groundwork that would eventually become judicial review. Federalist No. 51 may be the clearest exposition of what has come to be called “Federalism.”

The Federalist Papers (specifically Federalist No. 84) are notable for their opposition to what later became the United States Bill of Rights. The idea of adding a bill of rights to the constitution was originally controversial because the constitution, as written, did not specifically enumerate or protect the rights of the people, rather it listed the powers of the government and left all that remained to the states and the people. Alexander Hamilton, the author of Federalist No. 84, feared that such an enumeration, once written down explicitly, would later be interpreted as a list of the only rights that people had.

However, Hamilton’s opposition to the Bill of Rights was far from universal. Robert Yates, writing under the pseudonym Brutus, articulated this view point in the so-called Anti-Federalist No. 84, asserting that a government unrestrained by such a bill could easily devolve into tyranny. Other supporters of the Bill argued that a list of rights would not and should not be interpreted as exhaustive; i.e., that these rights were examples of important rights that people had, but that people had other rights as well. People in this school of thought were confident that the judiciary would interpret these rights in an expansive fashion. The matter was further clarified by the Ninth Amendment.

Link to complete Federalist Papers http://www.foundingfathers.info/federalistpapers/

The states sent the Constitution for ratification in late September 1787. Immediately, the Constitution became the target of numerous articles and public letters written by Anti-Federalists and other opponents of the Constitution. For instance, the important Anti-Federalist authors “Cato” and “Brutus” debuted in New York papers on September 27 and October 18, respectively. Hamilton began the Federalist Papers project as a response to the opponents of ratification, a response that would explain the new Constitution to the residents of New York and persuade them to ratify it. He wrote in Federalist No. 1 that the series would “endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention.”

Hamilton recruited collaborators for the project. He enlisted Jay, who fell ill and was unable to contribute much to the series. Madison, present in New York as a delegate to the Congress, was recruited by Hamilton and Jay and became Hamilton’s major collaborator. Governor Morris and William Duer were also apparently considered; Morris turned down the invitation and Hamilton rejected three essays written by Duer. Duer later wrote in support of the three Federalist authors under the name “Philo-Publius,” or “Friend of Publius.”

Hamilton also chose “Publius” as the pseudonym under which the series would be written. While many other pieces representing both sides of the constitutional debate were written under Roman names, Albert Furtwangler contends that “‘Publius’ was a cut above ‘Caesar’ or ‘Brutus’ or even ‘Cato.’ Publius Valerius was not a late defender of the republic but one of its founders. His more famous name, Publicola, meant ‘friend of the people.’” It was not the first time Hamilton had used this pseudonym: in 1778, he had applied it to three letters attacking Samuel Chase.

The Federalist Papers appeared in three New York newspapers: the Independent Journal, the New-York Packet, and the Daily Advertiser, beginning on October 27, 1787. Between them, Hamilton, Madison and Jay kept up a rapid pace, with at times three or four new essays by Publius appearing in the papers in a week. Garry Wills observes that the pace of production “overwhelmed” any possible response: “Who, given ample time could have answered such a battery of arguments? And no time was given.”[10] Hamilton also encouraged the reprinting of the essay in newspapers outside New York state, and indeed they were published in several other states where the ratification debate was taking place. However, they were only irregularly published outside New York, and in other parts of the country they were often overshadowed by local writers.

The high demand for the essays led to their publication in a more permanent form. On January 1, 1788, the New York publishing firm J. & A. McLean announced that they would publish the first thirty-six essays as a bound volume; that volume was released on March 2 and was titled The Federalist. New essays continued to appear in the newspapers; Federalist No. 77 was the last number to first appear in that form, on April 2. A second bound volume containing the last forty-nine essays was released on May 28. The remaining eight papers were later published in the newspapers as well.

A number of later publications are worth noting. A 1792 French edition ended the collective anonymity of Publius, announcing that the work had been written by “MM Hamilton, Maddisson E Gay,” citizens of the State of New York. In 1802 George Hopkins published an American edition that similarly named the authors. Hopkins wished as well that “the name of the writer should be prefixed to each number,” but at this point Hamilton insisted that this was not to be, and the division of the essays between the three authors remained a secret.

The first publication to divide the papers in such a way was an 1810 edition that used a list provided by Hamilton to associate the authors with their numbers; this edition appeared as two volumes of the compiled “Works of Hamilton.” In 1818, Jacob Gideon published a new edition with a new listing of authors, based on a list provided by Madison. The difference between Hamilton’s list and Madison’s form the basis for a dispute over the authorship of a dozen of the essays.

The authorship of seventy-three of the Federalist essays is fairly certain. Twelve are disputed, though some newer evidence suggests Madison as the author. The first open designation of which essay belonged to whom was provided by Hamilton, who in the days before his ultimately fatal duel with Aaron Burr provided his lawyer with a list detailing the author of each number. This list credited Hamilton with a full sixty-three of the essays (three of those being jointly written with Madison), almost three quarters of the whole, and was used as the basis for an 1810 printing that was the first to make specific attribution for the essays.

Madison did not immediately dispute Hamilton’s list, but provided his own list for the 1818 Gideon edition of The Federalist. Madison claimed twenty-nine numbers for himself, and he suggested that the difference between the two lists was “owing doubtless to the hurry in which [Hamilton's] memorandum was made out.” A known error in Hamilton’s list—Hamilton incorrectly ascribed No. 54 to Jay, when in fact Jay wrote No. 64—has provided some evidence for Madison’s suggestion.

Statistical analysis has been undertaken on several occasions to try to decide the authorship question based on word frequencies and writing styles. Nearly all of the statistical studies show that all twelve disputed papers were written by Madison.

The Federalist Papers were written to support the ratification of the Constitution, specifically in New York. Whether they succeeded in this mission is questionable. Separate ratification proceedings took place in each state, and the essays were not reliably reprinted outside of New York; furthermore, by the time the series was well underway, a number of important states had already ratified it, for instance Pennsylvania on December 12. New York held out until July 26; certainly The Federalist was more important here than anywhere else, but Furtwangler argues that it “could hardly rival other major forces in the ratification contests”–specifically, these forces included the personal influence of well-known Federalists, for instance Hamilton and Jay, and Anti-Federalists, including Governor George Clinton. Further, by the time New York came to a vote, ten states had already ratified the Constitution and it had thus already passed — only nine states had to ratify it for the new government to be established among them; the ratification by Virginia, the tenth state, placed pressure on New York to ratify. In light of that, Furtwangler observes, “New York’s refusal would make that state an odd outsider.”

As for Virginia, which only ratified the Constitution at its convention on June 25, Hamilton writes in a letter to Madison that the collected edition of The Federalist had been sent to Virginia; Furtwangler presumes that it was to act as a “debater’s handbook for the convention there,” though he claims that this indirect influence would be a “dubious distinction.” Probably of greater importance to the Virginia debate, in any case, were George Washington’s support for the proposed Constitution and the presence of Madison and Edmund Randolph, the governor, at the convention arguing for ratification.

Federal judges, when interpreting the Constitution, frequently use the Federalist Papers as a contemporary account of the intentions of the framers and ratifiers. They have been applied on issues ranging from the power of the federal government in foreign affairs (in Hines v. Davidowitz) to the validity of ex post facto laws (in the 1798 decision Calder v. Bull, apparently the first decision to mention The Federalist). As of the year 2000, The Federalist had been quoted 291 times in Supreme Court decisions.

The amount of deference that should be given to the Federalist Papers in constitutional interpretation has always been somewhat controversial. As early as 1819, Chief Justice John Marshall noted in the famous case McCulloch v. Maryland, that “the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained.” Madison himself believed not only that The Federalist Papers were not a direct expression of the ideas of the Founders, but that those ideas themselves, and the “debates and incidental decisions of the Convention,” should not be viewed as having any “authoritative character.” In short, “the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses.”

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The Anti-Federalist Papers

During the period from the drafting and proposal of the federal Constitution in September, 1787, to its ratification in 1789 there was an intense debate on ratification. The principal arguments in favor of it were stated in the series written by Madison, Hamilton, and Jay called the Federalist Papers, although they were not as widely read as numerous independent local speeches and articles. The arguments against ratification appeared in various forms, by various authors, most of whom used a pseudonym. Collectively, these writings have become known as the Anti-Federalist Papers. They contain warnings of dangers from tyranny that weaknesses in the proposed Constitution did not adequately provide against, and while some of those weaknesses were corrected by adoption of the Bill of Rights, others remained, and some of these dangers are now coming to pass.

The most important way to read the pro- and anti-federalist papers is as a debate on how the provisions of the Constitution would be interpreted, or “constructed”. Those opposing ratification, or at least raising doubts about it, were not so much arguing against the ratification of some kind of federal constitution, as against expansive construction of provisions delegating powers to the national government, and the responses from pro-ratificationists largely consisted of assurances that the delegations of power would be constructed strictly and narrowly. Therefore, to win the support of their opponents, the pro-ratificationists essentially had to consent to a doctrine of interpretation that must be considered a part of the Constitution, and that therefore must be the basis for interpretation today. This doctrine can be summed up by saying, “if a construction would have been objectionable to the anti-federalists, it should be initially presumed unconstitutional”.

Link to complete Anti-Federalist Papers: http://www.wepin.com/articles/afp/index.htm

References

Adair, Douglass. Fame and the Founding Fathers. Indianapolis: Liberty Fund, 1974. A collection of essays; that used here is “The Disputed Federalist Papers.”

Frederick Mosteller and David L. Wallace. Inference and Disputed Authorship: The Federalist. Addison-Wesley, Reading, Mass., 1964.

Furtwangler, Albert. The Authority of Publius: A Reading of the Federalist Papers. Ithaca, New York: Cornell University Press, 1984.

Wills, Gary. Explaining America: The Federalist, Garden City, NJ: 1981.

The Antifederalist Papers, edited with an Introduction by Morton Borden, Michigan State University Press, 1965 .

Documentary History of the Ratification of the Constitution, edited by John P. Kaminski and others, Wisconsin Historical Society, now up to 19 volumes and growing.

The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, edited by Bernard Bailyn, Library of America, 1993, 2 vol.

The Complete Anti-Federalist, edited by Herbert Storing and Murray Dry, University of Chicago Press, 1981, 7 vol.

The Anti-Federalist, edited by Herbert Storing, University of Chicago Press, 1985

The Anti-Federalist Papers and the Constitutional Convention Debates, edited by Ralph Ketcham, Penguin, 1986

http://en.wikipedia.org/wiki/Federalist_Papers

http://www.foundingfathers.info/federalistpapers/

http://www.constitution.org/afp.htm

http://www.wepin.com/articles/afp/index.htm

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