Beyond Petty Factionalism
The Federalist Papers and
Originalism in Process
The Federalist Papers
Mark Twain once quipped that classics are books that everyone has heard of and nobody reads. The Federalist Papers fits this description, except for the jurists who read them. They are a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the pseudonym "Publius." They were published in 1787 and 1788 in several New York State newspapers to promote the ratification of the United States Constitution. The primary purpose of these papers was to explain and advocate for the newly proposed Constitution, which was then being debated and considered by the states. The authors aimed to address criticisms of the proposed Constitution and to provide reasons for its provisions. In doing so, the papers provide insights into the framers' intentions and the philosophical and historical underpinnings of the Constitution. Historian Bernard Bailyn argues that the Papers, along with the Constitution and other works of the early "founders," were attempts to create a new world. Slaves and indigenous peoples were not included in their equations. It was a world for wealthy men and farmers. Land was itself mere property. And yet, with these many limitations, they rightly recognized that political theorizing is a creative act, risky, but necessary. Their originality invites us, today, to likewise be creative, building upon their insights and open to beckonings from the future. We, too, are to help in building the world anew. And we must do so in ways that move beyond petty factionalism into a cultural context in which each of us and all of us seek the common good - the common good of our nation, to be sure, and also, as deeply, the world itself.
This will require a more optimistic view of human nature than Hamilton, Madison, and Jay held. We will need to recognize that our well-being is interconnected with, rather than separate from, the well-being of others. But they, too, saw this as a possibility. Hamilton put it this way: "The supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence." Process philosophy, with its emphasis on relationality, shows how the portion of virtue, of care for the global as well as the local, is both hopeful and reasonable.
- Jay McDaniel
This will require a more optimistic view of human nature than Hamilton, Madison, and Jay held. We will need to recognize that our well-being is interconnected with, rather than separate from, the well-being of others. But they, too, saw this as a possibility. Hamilton put it this way: "The supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence." Process philosophy, with its emphasis on relationality, shows how the portion of virtue, of care for the global as well as the local, is both hopeful and reasonable.
- Jay McDaniel
To Begin the World Anew
"Two time Pulitzer Prize-winning historian Bernard Bailyn has distilled a lifetime of study into this brilliant illumination of the ideas and world of the Founding Fathers. In five succinct essays he reveals the origins, depth, and global impact of their extraordinary creativity.
The opening essay illuminates the central importance of America’s provincialism to the formation of a truly original political system. In the chapters following, he explores the ambiguities and achievements of Jefferson’s career, Benjamin Franklin’s changing image and supple diplomacy, the circumstances and impact of the Federalist Papers, and the continuing influence of American constitutional thought throughout the Atlantic world. To Begin the World Anew enlivens our appreciation of how America came to be and deepens our understanding of the men who created it."
Excerpts from chapter
on the Federalist Papers
Beyond Factionalism/Virtue and Honor
Tension, balance, adversarial clashes leading to conciliating moderation lay at the core of the Federalist Federalist writers’ thought—but they knew that a mechanically tense, self-balancing system did not activate or maintain itself. Its success would depend in the end on the character of the people who managed it and who allowed themselves to be ruled by it—their reasonableness, their common sense, their capacity to rise above partisan passions to act for the common good and remain faithful to constitutional limits. The Federalist authors shared the common belief that most people everywhere, in their deepest nature, are selfish and corruptible and that the desire for domination is so overwhelming that no one should be trusted with unqualified authority, but they were confident that under the Constitution’s checks and balances power would not be unconfined, and for such a self-limiting system there would be virtue enough in the American people for success. “As there is a degree of depravity in mankind,” Madison wrote, “which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.” But it was Hamilton, in one of the last of the Federalist papers, who made the point most succinctly: “The supposition of universal venality in human nature,” he wrote, “is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence. And experience justifies the theory.”
The Uses and Misuses of Power
Defending the establishment of sufficient national power to sustain a stable and effective society, they sought to preserve the maximum range of personal rights consistent with it. In this fundamental concern for the balance of power and liberty— which had been the central theme of America’s earlier struggle with Britain—the Federalist writers, conservators of what were then radical political principles, are our contemporaries. Their constitutional idiom is ours; their political problems at the deepest level are ours; and we share their cautious optimism that personal freedom and national power—the preservation of private rights and the maintenance of public safety—can be compatible. But maintaining that balance is still a struggle, in times of danger or disillusion a bitter struggle; and so we continue to look back to what these extraordinarily thoughtful men wrote so hurriedly under such intense pressure two centuries ago. The Federalist papers—not a theoretical treatise on political philosophy but a practical commentary on the uses and misuses of power—still speak to us directly.
Use of Federalist Papers in Supreme Court
Overall, for the Supreme Court justices The Federalist has never been a treatise on political theory or a masterwork on political science, but a guide to the disposition of power in specific circumstances, an authority on the constitutional use of force and the constraints on the use of force in the intricate functioning of the federalist system of government in America. As these questions grew in complexity and importance in the late twentieth century, so too did the need for an authentic voice of the founding generation to guide the reasoning of the nation’s final arbiters of the legitimate use of power.
Originalism in Process
Mark Twain once quipped that classics are books everyone knows about and very few people read. The Federalist Papers fit this description. And so does the US Constitution, which they (the papers) sought to defend. The Papers are exercises in political theorizing.
Political theorizing is, or can be, a creative activity of helping start the world anew. This involves responding to existing circumstances, building upon past successes, moving beyond failures, and attempting to develop insights on how people might be governed, or even govern themselves, in the future, in ways that balance needs for unity, security, and, plurality, and individual rights.
This was the task of the writers of the Federalist Papers: James Madison, Alexander Hamilton, and John Jay, as they exemplified the process in practice, combining openness to fresh possibilities from the future with an honest assessment of what works and doesn't work, considering the exigencies of the present. They brought with them assumptions about human nature, namely that human beings, when left to themselves, seek power and domination. This led to their emphasis on checks and balances, ensuring that no single individual or group of individuals could wield too much power.
Here is a small sampling of their many themes:
Close readings of the papers by scholars show that the various essays are not always consistent or clear. The Federalist Papers contain ambiguities, as did the Constitution itself. At least so we learn from the BBC podcast below. And yet in their writing and courage, they show that the very act of political theorizing can be, in its own way, a creative and thus artistic process. Practical, yes. But also flexible and imaginative.
Today, as noted above, the Federalist Papers are read by very few, mostly jurists. Their primary function in the United States is as a reference point for members of the Supreme Court. It is doubtful that most members of Congress have, or have the capacity to read and understand them.
But it is important for members of Congress, for all American citizens, to recognize that political theorizing does not lie only in referencing the past, even if the Constitution or the Federalist Papers are included, but also in taking the spirit of creativity, so well illustrated in their work, into the present so that we, too, might help begin the world anew for the sake of a more perfect union.
Self-described "originalists" like to say that they are trying to be faithful to the intentions of the writers of the Constitution as they make their decisions. From a process perspective, originalism is always originalism in process. Even the principles of the Constitution, as defended in the Federalist Papers, are lures for thought, feeling, and creativity. The key is to take the contents of the Federalist papers seriously, as do justices both liberal and conservative, but also to take the spirit in which they were written seriously. Otherwise juridical judgements fall into a fundamentalism that is the bane of any democracy in crisis. The boon is to let go of fundamentalisms at let the many of the past "become one" in fresh ways, relevant to the times. This kind of creativity would be faithful to the intentions of the authors.
- Jay McDaniel
Political theorizing is, or can be, a creative activity of helping start the world anew. This involves responding to existing circumstances, building upon past successes, moving beyond failures, and attempting to develop insights on how people might be governed, or even govern themselves, in the future, in ways that balance needs for unity, security, and, plurality, and individual rights.
This was the task of the writers of the Federalist Papers: James Madison, Alexander Hamilton, and John Jay, as they exemplified the process in practice, combining openness to fresh possibilities from the future with an honest assessment of what works and doesn't work, considering the exigencies of the present. They brought with them assumptions about human nature, namely that human beings, when left to themselves, seek power and domination. This led to their emphasis on checks and balances, ensuring that no single individual or group of individuals could wield too much power.
Here is a small sampling of their many themes:
- Necessity of a Stronger Union: They argued that the Articles of Confederation, which were the governing documents at the time, were too weak and ineffective, leading to problems like interstate disputes and financial instability.
- Checks and Balances: The papers delve into the structure of the proposed government, emphasizing the importance of separating powers among the three branches (legislative, executive, judicial) to prevent the concentration and abuse of power.
- Safeguard against Factionalism: In Federalist No. 10, James Madison argued that a larger republic would be a safeguard against factions, as more factions would exist, making it less likely for any one faction to dominate.
- Role of the Judiciary: Federalist No. 78, written by Hamilton, focuses on the judiciary and argues for its independence as a way to safeguard the Constitution and individual rights.
Close readings of the papers by scholars show that the various essays are not always consistent or clear. The Federalist Papers contain ambiguities, as did the Constitution itself. At least so we learn from the BBC podcast below. And yet in their writing and courage, they show that the very act of political theorizing can be, in its own way, a creative and thus artistic process. Practical, yes. But also flexible and imaginative.
Today, as noted above, the Federalist Papers are read by very few, mostly jurists. Their primary function in the United States is as a reference point for members of the Supreme Court. It is doubtful that most members of Congress have, or have the capacity to read and understand them.
But it is important for members of Congress, for all American citizens, to recognize that political theorizing does not lie only in referencing the past, even if the Constitution or the Federalist Papers are included, but also in taking the spirit of creativity, so well illustrated in their work, into the present so that we, too, might help begin the world anew for the sake of a more perfect union.
Self-described "originalists" like to say that they are trying to be faithful to the intentions of the writers of the Constitution as they make their decisions. From a process perspective, originalism is always originalism in process. Even the principles of the Constitution, as defended in the Federalist Papers, are lures for thought, feeling, and creativity. The key is to take the contents of the Federalist papers seriously, as do justices both liberal and conservative, but also to take the spirit in which they were written seriously. Otherwise juridical judgements fall into a fundamentalism that is the bane of any democracy in crisis. The boon is to let go of fundamentalisms at let the many of the past "become one" in fresh ways, relevant to the times. This kind of creativity would be faithful to the intentions of the authors.
- Jay McDaniel
BBC Podcast on The Federalist Papers
Click here for a 45 minute podcast on The Federalist Papers offered by In Our Time.
Melvyn Bragg and guests discuss Alexander Hamilton, James Madison and John Jay's essays written in 1787/8 in support of the new US Constitution. They published these anonymously in New York as 'Publius' but, when it became known that Hamilton and Madison were the main authors, the essays took on a new significance for all states. As those two men played a major part in drafting the Constitution itself, their essays have since informed debate over what the authors of that Constitution truly intended. To some, the essays have proved to be America’s greatest contribution to political thought.
With
Frank Cogliano: Professor of American History at the University of Edinburgh and Interim Saunders Director of the International Centre for Jefferson Studies at Monticello
Kathleen Burk: Professor Emerita of Modern and Contemporary History at University College London
And
Nicholas Guyatt: Professor of North American History at the University of Cambridge
Producer: Simon Tillotson
Melvyn Bragg and guests discuss Alexander Hamilton, James Madison and John Jay's essays written in 1787/8 in support of the new US Constitution. They published these anonymously in New York as 'Publius' but, when it became known that Hamilton and Madison were the main authors, the essays took on a new significance for all states. As those two men played a major part in drafting the Constitution itself, their essays have since informed debate over what the authors of that Constitution truly intended. To some, the essays have proved to be America’s greatest contribution to political thought.
With
Frank Cogliano: Professor of American History at the University of Edinburgh and Interim Saunders Director of the International Centre for Jefferson Studies at Monticello
Kathleen Burk: Professor Emerita of Modern and Contemporary History at University College London
And
Nicholas Guyatt: Professor of North American History at the University of Cambridge
Producer: Simon Tillotson
Reading List on Federalist Papers
offered by BBC's In Our Time
Bernard Bailyn, To Begin the World Anew: The Genius and Ambiguities of the American Founders (Knopf, 2003)
Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (Harvard University Press, 2015)
Noah Feldman, The Three Lives of James Madison: Genius, Partisan, President (Random House, 2017)
Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Harvard University Press, 2018)
Alexander Hamilton, John Jay, James Madison (eds. George W. Carey and James McClellan), The Federalist: The Gideon Edition (Liberty Fund, 2001)
Alison L. LaCroix, The Ideological Origins of American Federalism (Harvard University Press, 2010)
James Madison, Alexander Hamilton and John Jay, The Federalist Papers (Penguin, 1987)
Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon and Schuster, 2010)
Michael I. Meyerson, Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (Basic Books, 2008)
Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, 1996)
Jack N. Rakove and Colleen A. Sheehan, The Cambridge Companion to The Federalist (Cambridge University Press, 2020)
About the US Constitution
The U.S. Constitution, written in 1787 and ratified by nine of the original 13 states a year later, is the world’s longest-surviving written constitution. But that doesn’t mean it has stayed the same over time.
The Founding Fathers intended the document to be flexible in order to fit the changing needs and circumstances of the country. In the words of Virginia delegate Edmund Randolph, one of the five men tasked with drafting the Constitution, the goal was to “insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.”
Since the Bill of Rights was adopted in 1791, Congress has passed just 23 additional amendments to the Constitution, and the states have ratified only 17 of them. Beyond that, many changes in the American political and legal system have come through judicial interpretation of existing laws, rather than the addition of new ones by the legislative branch.
The Founding Fathers intended the document to be flexible in order to fit the changing needs and circumstances of the country. In the words of Virginia delegate Edmund Randolph, one of the five men tasked with drafting the Constitution, the goal was to “insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.”
Since the Bill of Rights was adopted in 1791, Congress has passed just 23 additional amendments to the Constitution, and the states have ratified only 17 of them. Beyond that, many changes in the American political and legal system have come through judicial interpretation of existing laws, rather than the addition of new ones by the legislative branch.