The Federalist Papers 3

In this near-religious veneration for a series of political arguments that emerged from a frantic public struggle there is a strange and important paradox. The Federalist is an eighteenth-century docu¬ment, written in and limited by the circumstances of that distant time; yet it is seen now, and increasingly, as not merely relevant in some vague way to our postindustrial world but instructive, even pre¬scriptive, on specific problems of the twenty-first century. But the authors of the Federalist papers lived in a preindustrial world whose social and economic problems were utterly different from ours and whose social policies, insofar as they had any, if implemented now would create chaos. They knew about special interests and about social and political passions, but they had no idea how powerfully public opinion in a modern democracy can be manipulated, espe¬cially by instruments of communication they could not have con¬ceived of. Much of their thinking—-certainly Madison’s—was based on assumptions about physical distance and its calming and dissipat¬ing effect on political passions; but we live at a time when distance is obliterated and scattered forces can coalesce by instantaneous com¬munication with intensifying effect. The instruments of coercive force that they knew, the machinery of physical intimidation, were far weaker than ours, and the modes of escaping from the power of the state more numerous.
Beyond all that, the Constitution that the Federalist papers de¬fended and explained is simply a different instrument from the Con¬stitution as we know it now. Hundreds of federal court decisions, in implementing clauses of the Constitution, have given them new shape. The amendments that have been added to the Constitution— especially the Civil War amendments which made possible the exten¬sion of the federal Bill of Rights into the states and overthrew the Founders’ notions of citizenship—have fundamentally altered the scope and meaning of the Constitution. Further, the Federalist authors deplored political parties, which they identified not with broad policy positions but with narrow, selfish “factional” interests; but we know that, while special interests exist in abundance, political parties, for all their divisiveness, are essential to the functioning both of our fed¬eral system and of the separated powers within the federal and state governments. And the Founders made elaborate provision for what they called a filtration of popular influences which—in the form of electors specially chosen to select the president and state legislatures as electors of senators—we have discarded. It is a reworked, signifi-cantly amended Constitution that we live with. Yet, though modern commentators explain our present, elaborated Constitution as it now actually operates, we still go back to the Federalist papers, written more than two centuries ago, for instruction and understanding.
Why? Should we? What, if anything, accounts for The Federalist’s authority? Where does its value now lie?
The starting point, I believe, for understanding the relevance of The Federalist in our time is to go back to the context from which the papers emerged.
In 1878 William Gladstone, the British prime minister, declared that the American Constitution was “the most wonderful work ever struck off at a given time by the brain and purpose of man.” He was right about the wonder of the Constitution, but he was wrong about the “given time.” It was no product of a single stroke. The creation of the Constitution stretched out through four distinct stages: from 1787 at least to the end of Washington’s first administration in 1793.
The first stage was, of course, the secret constitutional convention in Philadelphia in which the Constitution was written—May to September 1787. Only fifty-five people attended that four-month convention, but in itself it was an extended process—a history in itself—of subtie and complex changes, compromises, revisions, and adjustments.
The second stage was the public debate within the states on the ratification of the proposed Constitution, which lasted from late Sep¬tember 1787 through July 1788, when all the states but North Car¬olina and Rhode Island ratified. It was understood at least halfway through that process that amendments, based on proposals from the states, would be added that would constitute a Bill of Rights.
The third stage was the work of the first session of the First Con¬gress, March to September 1789, when two fundamental supple¬ments to the Constitution were made. In the House, the first ten amendments, the Bill of Rights, were devised, by Madison working with some eighty of the states’ recommendations, and sent out to the states for approval. In the Senate, the Judiciary Act, drafted by Oliver Ellsworth, was passed, which fleshed out the Constitution’s brief Article III, on the judiciary, by creating the federal court system and giving to it powers that the people in Philadelphia had not dared to include.
But still, the whole thing was merely words on paper until imple¬mented by Washington’s government. Washington knew how mal¬leable the situation was; he understood that every move he and his administration made would be a precedent that would shape the actuality of the Constitution, and he proceeded with great care. It was Washington, for example, who created the structure of the exec¬utive offices (the cabinet) and it was he who defined the Senate’s role in foreign policy and something of the operational meaning of the words “advice and consent.”

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