The Federalist Papers 9

But what would prevent one of the four elements of the federal gov¬ernment—the executive, the two branches of the legislature, and the judiciary—from dominating the others and thus establishing a one¬sided, autocratic regime? It could not happen, The Federalist replied. Each branch of the federal government had powers that could negate those of the others, and all four overlapped in their powers sufficiently to brake the others’ possible excesses.
As for the absence of a Bill of Rights, Hamilton confronted the issue directly, in his own distinctive way. The Constitution itself, he argued, guaranteed essential rights—jury trials in criminal cases, habeas corpus, freedom from bills of attainder, from ex-post-facto laws, from religious tests for officeholding, and from titles of nobility. And quite aside from that, the concept was inapplicable. Bills of rights were “stipulations between kings and their subjects,” in effect abridgments of royal prerogatives that had been fought for “sword in hand.” Here the people have all the rights not explicidy surrendered in grants of power to the government. “Why declare that things shall not be done which there is no power to do?” To do so might well fur¬nish ambitious men “a plausible pretence for claims to that power.” And as for the most general concern of all, there was no reason, The Federalist wrote, why a centralized national government must be incompatible with personal liberty if, as the Constitution provided, that authority were limited to enumerated powers, all others being retained by the states and the people. If it ever happened that those restrictions, enforced by the courts, were ignored by federal office¬holders, then the whole constitution of government would be at an end and private problems would scarcely matter in the general catas¬trophe that would result.
So in page after page (592 pages in all in the first book edition), in essay after essay, week after week through seven months while the fate of the nation hung in the balance, the authors of the Federalist papers, amid a bedlam of conflicting voices, explained and explored the Constitution, article by article, clause by clause—the need for it, its powers and limitations, and its proof against the attacks aimed to defeat it. But in explaining the document and the government it would create, the Federalist authors, impelled by the urgency they felt and the complexity of reconciling radical ideals of political liberty with the present need for power, went beyond the range of familiar problems to reach a level of thought deeper and more original than that of any of the other pamphleteers and essayists. Pragmatically, unsystematically, almost inadvertently, they drew fundamental prin¬ciples into the popular debate. They were not attempting to write a formal treatise on the foundations of government or to create a new science of politics. Their aim was simply to convince people whose minds and experiences were shaped by the Revolutionary ideology that the principles they revered, especially the preservation of private rights, would still apply under the powers of the new federal govern¬ment. But doing so presented unexpected challenges, paradoxes, and dilemmas that forced them to think freshly and devise new formula¬tions which enriched, elaborated, and deepened the political tradi¬tion they had inherited and continued to revere.
New phrases, fresh terms crop up in their defense of the Constitu¬tion, reflecting new angles of vision in approaching the problems of power. So Hamilton, insisting with increasing urgency that the two levels of government, states and nation, could coexist within the same territory without conflict, focused that famous issue on the dis¬tinction, familiar in law but not in political thought, between repug¬nance and concurrence. Jurisdictions that confronted each other, he argued, might, like conflicting laws, find their powers repugnant to each other. If that happened, a struggle would inevitably result until the dominance of one was somehow established. In a contest of gov¬ernments this would mean nothing less than civil war. But repug¬nance was not inevitable. Two authorities with similar powers could concur, if their roles were clearly established—could divide their responsibilities into separate spheres—could even reinforce each other and clarify each other’s role. The Constitution’s federalist divi¬sion of absolute powers was a structure of concurrence, he argued, not repugnancy. To understand that distinction was to understand the heart of the Constitution and the public world it would create.
If the concept of repugnancy was misleading, so too was the doc¬trine, so celebrated by Thomas Paine in Common Sense, that simplicity in government was a virtue, complexity an unmitigated evil. The opposite, The Federalist argued, was true. For the simpler the structure of government, the more likely it was to be dominated by particular interests or individuals at the expense of others. Complexity not sim¬plicity was needed to provide the institutional conditions for adver¬sarial challenges, without which ambition could run free.

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