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Introductory note: the federalist, [27 october 1787–28 may 1788], introductory note: the federalist.

[New York, October 27, 1787–May 28, 1788]

The Federalist essays have been printed more frequently than any other work of Hamilton. They have, nevertheless, been reprinted in these volumes because no edition of his writings which omitted his most important contribution to political thought could be considered definitive. The essays written by John Jay and James Madison, however, have not been included. They are available in many editions, and they do not, after all, properly belong in the writings of Alexander Hamilton.

The Federalist , addressed to the “People of the State of New-York,” was occasioned by the objections of many New Yorkers to the Constitution which had been proposed on September 17, 1787, by the Philadelphia Convention. During the last week in September and the first weeks of October, 1787, the pages of New York newspapers were filled with articles denouncing the Constitution. 1 The proposed government also had its defenders, but their articles were characterized by somewhat indignant attacks on those who dared oppose the Constitution rather than by reasoned explanations of the advantages of its provisions. 2

The decision to publish a series of essays defending the Constitution and explaining in detail its provisions was made by Alexander Hamilton. Both the reasons for his decision and the date on which he conceived the project are conjecturable. Having gone to Albany early in October to attend the fall session of the Supreme Court, he was not in New York City during the early weeks of the controversy over the Constitution. 3 He must, nevertheless, have concluded that if it were to be adopted, convincing proof of its merits would have to be placed before the citizens of New York. His decision to write the essays may have been made before he left Albany, for according to tradition he wrote the first number of The Federalist in the cabin of his sloop on the return trip to New York. 4

At some time before the appearance of the first essay, written under the pseudonym “Publius,” Hamilton sought and found collaborators, for the first essay, published in The [New York] Independent Journal: or, the General Advertiser on October 27, 1787, was followed in four days by an essay by John Jay. Neither Hamilton nor Jay left a record of any plans they might have made, but the third collaborator, James Madison, later wrote that “the undertaking was proposed by Alexander Hamilton to James Madison with a request to join him and Mr. Jay in carrying it into effect. William Duer was also included in the original plan; and wrote two or more papers, which though intelligent and sprightly, were not continued, nor did they make a part of the printed collection.” 5 Hamilton also sought the assistance of Gouverneur Morris, who in 1815 remembered that he had been “warmly pressed by Hamilton to assist in writing the Federalist.” 6

In reprinting the text of The Federalist the original manuscripts have been approximated as nearly as possible. As the first printing of each essay, despite typographical errors, was presumably closest to the original, the text published in this edition is that which was first printed. The texts of those essays among the first seventy-seven which were written by Hamilton or are of doubtful authorship are taken from the newspapers in which they first appeared; the texts of essays 78–85 are taken from the first edition of The Federalist , edited by John and Archibald McLean. 7

With the exception of the last eight numbers, all the issues of The Federalist were first printed in the newspapers of New York City. The first essay was published on October 27, 1787, in The Independent Journal: or, the General Advertiser , edited by John McLean and Company. Subsequent essays appeared in The Independent Journal and in three other New York newspapers: New-York Packet , edited by Samuel and John Loudon; The Daily Advertiser , edited by Francis Childs; and The New-York Journal, and Daily Patriotic Register , edited by Thomas Greenleaf. 8

The first seven essays, published between October 27 and November 17, 1787, appeared on Saturdays and Wednesdays in The Independent Journal , a semiweekly paper, and a day or two later in both New-York Packet and The Daily Advertiser . At the conclusion of essay 7 the following announcement appeared in The Independent Journal: “In order that the whole subject of these Papers may be as soon as possible laid before the Public, it is proposed to publish them four times a week, on Tuesday in the New-York Packet and on Thursday in the Daily Advertiser.” The intention thus was to publish on Tuesday in New-York Packet , on Wednesday in The Independent Journal , on Thursday in The Daily Advertiser , and on Saturday in The Independent Journal .

The announced plan was not consistently followed. On Thursday, November 22, The Daily Advertiser , according to the proposed schedule, published essay 10, but after its publication no other essay appeared first in that newspaper. To continue the proposed plan of publication—a plan which occasionally was altered by publishing three instead of four essays a week—the third “Publius” essay of the next week appeared on Friday in New-York Packet . After November 30 the essays appeared in the following manner: Tuesday, New-York Packet , Wednesday, The Independent Journal , Friday, New-York Packet , and Saturday, The Independent Journal . The third essay of the week appeared either on Friday in the Packet or on Saturday in The Independent Journal . This pattern of publication was followed through the publication of essay 76 (or essay 77, in the numbering used in this edition of Hamilton’s works) on April 2, 1788. The remaining essays were first printed in the second volume of McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends ’s edition of May 28, 1788, and beginning on June 14 were reprinted, at intervals of several days, first in The Independent Journal and then in New-York Packet .

The first edition, printed by J. and A. McLean 9 and corrected by Hamilton, is the source from which most editions of The Federalist have been taken. On January 1, 1788, McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends , having observed “the avidity” with which the “Publius” essays had been “sought after by politicians and persons of every description,” announced plans for the publication of “The FEDERALIST, A Collection of Essays, written in favour of the New Constitution, By a Citizen of New-York , Corrected by the Author, with Additions and Alterations.” 10 The promised volume, including the first thirty-six essays, was published on March 22, 1788. Hamilton was not altogether pleased with the volume, for he stated in the preface 11 that it contained “violations of method and repetitions of ideas which cannot but displease a critical reader.” Despite such imperfections, he hoped that the essays would “promote the cause of truth, and lead to a right judgment of the true interests of the community.” Interested readers were promised a second volume of essays as soon as the editor could prepare them for publication.

“This Day is published,” The Independent Journal advertised on May 28, 1788, “The FEDERALIST, VOLUME SECOND.” This volume contained the remaining essays, including the final eight which had not yet appeared in the newspapers. As in the first volume, there were editorial revisions which probably were made by Hamilton. The final eight essays, which first appeared in this volume were reprinted in The Independent Journal and in New-York Packet between June 14, 1788, and August 16, 1788.

In addition to the McLean edition, during Hamilton’s lifetime there were two French editions 12 and two American editions of The Federalist . The second American edition, printed by John Tiebout in 1799, was not a new printing but a reissue of the remaining copies of the McLean edition with new title pages. The third American edition, published in 1802, not only was a new printing; it also contained revisions presumably approved by Hamilton. It is this, the Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends edition, which must be taken as Hamilton’s final version of The Federalist . 13

George F. Hopkins announced his plan for a new edition of The Federalist in the January 13, 1802, issue of New-York Evening Post . “Proposals, By G. F. Hopkins, 118 Pearl Street,” read the advertisement in the Post , “For Publishing by Subscription, in Two handsome Octavo Volumes, THE FEDERALIST, ON THE CONSTITUTION, BY PUBLIUS Written in 1788. TO WHICH IS ADDED, PACIFICUS, ON THE PROCLAMATION OF NEUTRALITY. Written in 1793. The whole Revised and Corrected. With new passages and notes .” Hopkins proposed not only to issue a revised text but to give the author of each essay; by naming Hamilton, Madison, and Jay as the authors of The Federalist , he publicly broke the poorly kept secrecy surrounding its authorship. Almost a year passed before Hopkins, on December 8, 1802, offered to the public “in a dress which it is believed will meet with general approbation” the new edition.

Although it is certain that Hamilton did not himself revise the text published in the Hopkins edition, available evidence indicates that he approved the alterations which were made. In 1847 J. C. Hamilton wrote to Hopkins requesting information on the extent to which Hamilton had made or approved the revisions. Hopkins replied that the changes had been made by a “respectable professional gentleman” who, after completing his work, had “put the volumes into the hands of your father, who examined the numerous corrections, most of which he sanctioned, and the work was put to press.” The editor, who was not named by Hopkins, was identified by J. C. Hamilton as John Wells, an eminent New York lawyer. The Hopkins edition, Hamilton’s son emphatically stated, was “ revised and corrected by John Wells … and supervised by Hamilton.” 14 Henry B. Dawson in his 1864 edition of The Federalist contested J. C. Hamilton’s conclusion and argued that the changes were made by William Coleman, editor of New-York Evening Post , and that they were made without Hamilton’s authorization or approval. According to Dawson, Hopkins declared on two different occasions in later years—once to James A. Hamilton and once to John W. Francis—that Hamilton refused to have any changes made in the essays. 15 Although it is impossible to resolve the contradictory statements on Hamilton’s participation in the revisions included in the 1802 edition of The Federalist , J. C. Hamilton presents the more convincing evidence. He, after all, quoted a statement by Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends , while Dawson related only a conversation.

The McLean and Hopkins editions thus constitute Hamilton’s revision of the text of The Federalist . Hamilton made some minor changes in essays written by Jay and Madison—changes which in the McLean edition they presumably authorized. Jay never revised the essays he wrote, and it was not until 1818 that Madison authorized the publication of an edition which included his own corrections of his essays. This edition was published by Jacob Gideon, 16 a printer in Washington, D.C.

It is, then, from the newspapers of the day, the McLean edition of 1788, and the Hopkins edition of 1802 that a definitive text of Hamilton’s contribution to The Federalist must be reconstructed. In the present edition, as stated above, the texts of essays 1–77 have been taken from the newspapers in which they first appeared; the texts of essays 78–85 are from volume two of the McLean edition. All changes which Hamilton later made or approved in the texts of the essays he wrote have been indicated in notes. Thus in essays 1–77 all changes made in the McLean and Hopkins editions in Hamilton’s essays are given. In essays 78–85 all the changes which appeared in the Hopkins edition are noted. The edition in which a revision was made is indicated by a short title, either by the name “McLean” or “Hopkins.” To this rule there are, however, three exceptions: 1. When an obvious typographical error appears in the text taken from the newspaper, it has been corrected without annotation. 2. When in McLean there is a correction of a printer’s error which, if left unchanged, would make the text meaningless or inaccurate, that correction has been incorporated in the text; the word or words in the newspaper for which changes have been substituted are then indicated in the notes. 3. Obvious printer’s errors in punctuation have been corrected; a period at the end of a question, for example, has been changed to a question mark. When a dash is used at the end of a sentence, a period has been substituted.

Because of changes made in the McLean edition, the numbering of certain essays presents an editorial problem. When McLean, with Hamilton’s assistance, published the first edition of The Federalist , it was decided that the essay published in the newspaper as 35 should follow essay 28, presumably because the subject matter of 35 was a continuation of the subject treated in 28. It also was concluded, probably because of its unusual length, that the essay which appeared in the newspapers as essay 31 should be divided and published as two essays. When these changes were made, the original numbering of essays 29–36 was changed in the following way:

Essays 36–78 in the McLean edition thus were one number higher than the number given the corresponding essay in the newspaper.

Because McLean changed the numbers of some of the essays, later editors have questioned whether there were 84 or 85 essays. This is understandable, for there were only 84 essays printed in the newspapers, the essays 32 and 33 by McLean having appeared in the press as a single essay. The last essay printed in The Independent Journal accordingly was numbered 84. The last eight essays published in New-York Packet , on the other hand, were given the numbers used in the second volume of McLean’s edition. The last number of The Federalist printed by New-York Packet in April had been numbered “76”; the following essay, published in June, was numbered “78.” By omitting the number “77,” the editor of New-York Packet , like McLean, numbered the last of the essays “85.”

Later editions of The Federalist , except for that published by Henry B. Dawson, have followed the numbering of the McLean edition. Since no possible purpose would be served and some confusion might result by restoring the newspaper numbering, the essays in the present edition have been given the numbers used by McLean in 1788, and the newspaper number has been placed in brackets.

Almost a century and a half of controversy has centered on the authorship of certain numbers of The Federalist . Similar to most other eighteenth-century newspaper contributors, the authors of The Federalist chose to write anonymously. When The Federalist essays appeared in the press, many New Yorkers probably suspected that Hamilton, if not the sole author of the “Publius” essays, was the major contributor. Friends of Hamilton and Madison, and perhaps those of Jay, certainly knew that this was a joint enterprise and who the authors were. 17 The number of essays written by each author, if only because the question probably never arose, aroused no curiosity. The Federalist , after all, was written for the immediate purpose of persuading the citizens of New York that it was to their interest to adopt the Constitution; certainly not the authors, and probably few readers, realized that the essays which in the winter of 1788 appeared so frequently in the New York press under the signature of “Publius” would become a classic interpretation of the Constitution of the United States. In 1802, George F. Hopkins proposed to publish a new edition of The Federalist in which the authors would be identified; but because of Hamilton’s “decided disapprobation” 18 no identification of the authors was made in that edition. It was not until three years after Hamilton’s death that The Port Folio , a Philadelphia weekly, published a list of the authors of the essays, thus opening a controversy which still remains unsettled. 19

The evidence on the authorship of several of the essays is contradictory because both Hamilton and Madison made, or allegedly made, several lists in which they claimed authorship of the same essays. It is neither necessary nor instructive to discuss the minor discrepancies found in the claims by the two men in their respective lists. 20 The whole problem is simplified by keeping in mind that of the eighty-five essays the authorship of only fifteen is disputed. Despite contrary claims in several of the least credible lists published during the first two decades of the nineteenth century, it has long been accepted that Hamilton wrote essays 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85; that Madison was the author of essays 10, 14, 37–48; and that Jay contributed essays 2–5 and 64. 21 The authorship of only essays 18–20, 49–58, and 62–63 is therefore debatable.

The number of disputed essays can be reduced by examining the reliability of the several Madison and Hamilton lists. There are four reputed Madison lists: 1. An article, signed “Corrector,” which appeared in the National Intelligencer on March 20, 1817, and which, according to the anonymous author, was copied from “a penciled memorandum in the hand of Madison.” 22 2. A statement of authorship, supposedly endorsed by Madison, made by Richard Rush, a member of Madison’s cabinet, in his copy of The Federalist . 23 3. An article in the City of Washington Gazette , December 15, 1817, claiming to set forth a list “furnished by Madison himself.” 24 4. The edition of The Federalist published by Jacob Gideon in 1818, which based its attribution of authorship on Madison’s own “copy of the work which that gentleman had preserved for himself.” 25 There is no evidence that Madison approved the first three lists; the fourth, the Gideon edition, was not only based on Madison’s copy, but it was endorsed by him as correct.

Hamilton’s claims to authorship are more complicated. Despite statements by his partisans, there are only three Hamilton lists that merit the serious attention of the historian who applies any known tests for evaluating historical evidence. They are the so-called “Benson list,” the list allegedly preserved by Hamilton in his own copy of The Federalist , and the “Kent list.”

The Benson list, according to a story first related by William Coleman in March, 1817, was left by Hamilton, shortly before his death, between the pages of a book in the library of his long-time friend, Judge Egbert Benson. Arriving at Benson’s office, Hamilton was told by Robert Benson, Jr., Egbert’s nephew and clerk, that the Judge and Rufus King had gone to Massachusetts for a few days. As Hamilton conversed with the law clerk, he idly handled one of the volumes on the shelves in the office. After Hamilton’s death which occurred two days later, Benson remembered the incident and, looking in the book Hamilton had picked up, he found a scrap of paper, unsigned but in Hamilton’s hand, listing the essays he had written. 26 Judge Benson, according to the traditional account, pasted it on the inside cover of his copy of The Federalist but somewhat later, fearing that he might lose such a valuable document, deposited it in the New York Society Library. The memorandum was presumably stolen in 1818. 27

The existence of the Benson list was corroborated by two witnesses, Robert Benson and William Coleman. Coleman, editor of New-York Evening Post , is the less credible authority; he may have seen the Benson list, but it is significant that he never definitely stated that he did. The most emphatic statement that he made, elicited by the demands for proof made by an antagonist in a newspaper controversy over the authorship of The Federalist , was as follows:

“I, therefore, for the entire satisfaction of the public, now state, that the memorandum referred to is in General Hamilton’s own hand writing, was left by him with his friend judge BENSON, the week before his death, and was, by the latter, deposited in the city library, where it now is, and may be seen, pasted in one of the volumes of The Federalist .” 28

The statement of Robert Benson, the law clerk to whom Hamilton spoke on the day before his encounter with Burr, is more convincing, but it was made many years after the event, and it is far from being conclusive. “I was then a student in the office,” Benson recalled “and well known to the General” who called and enquired for Judge Benson.

“I replied that he had left the city with Mr. King. The General in his usual manner then went to the book case and took down a book which he opened and soon replaced, and left the office. Some time after the General’s death, a memorandum in his handwriting was found in a volume of Pliny’s letters, I think , which, I believe , was the book he took down, and which memorandum was afterwards wafered by the Judge in the inside cover of the first volume of the Federalist, and where it remained for several years. He subsequently removed it, and, as I understand , gave it to some public library.… The marks of the wafers still remain in the volume, and above them in Judge Benson’s handwriting is, what is presumed, and I believe to be , a copy of the General’s memorandum above referred to.” 29

The Benson list is suspect, then, because the claim for its authenticity is based on the evidence of two men neither of whom stated that he actually saw it. If there had not already been too much fruitless speculation on Hamilton’s thoughts and intentions, it would be interesting to explain why Hamilton chose such a roundabout method to make certain that future generations would recognize his contribution to such a celebrated book. Perhaps he knew that Robert Benson would search all the volumes in his uncle’s office on the suspicion that Hamilton, however uncharacteristically, had concealed a note on some important subject; or perhaps he thought that Benson frequently read Pliny’s Letters and thus could be sure the note would be found. One can speculate endlessly on the motives for Hamilton’s extraordinary behavior, but the significant fact is that the Benson list is inadequate as historical evidence.

Evidence of the existence of Hamilton’s own copy of The Federalist in which he supposedly listed the essays he wrote comes from a notice which appeared on November 14, 1807, in The Port Folio . “The Executors of the last will of General Hamilton,” the Philadelphia weekly announced, “have deposited in the Publick Library of New-York a copy of ‘ The Federalist ,’ which belonged to the General in his lifetime, in which he has designated in his own handwriting, the parts of that celebrated work written by himself, as well as those contributed by Mr. JAY and Mr. MADISON.” No one has seen Hamilton’s copy in the last 150 years; whether it existed or what happened to it, if it did exist, cannot now be known. 30

While the numbers claimed by Hamilton in the Benson list and in his own copy of The Federalist are the same, the list by Chancellor James Kent disagrees in several particulars from the other two. The Kent list, in the Chancellor’s own writing, was found on the inside cover of his copy of The Federalist , now in the Columbia University Libraries. Because of differences in the ink and pen he used, Kent’s statement may be divided into three parts, each of which was written at a different time. In the following copy of Kent’s notes the three parts are indicated by Roman numerals:

The numbers which were written over the numbers Kent first wrote are not in Kent’s writing. However familiar one is with the handwriting of another, it is difficult to determine if a single numeral is in his writing. But despite the impossibility of positive identification, a close comparison of numerals made by Hamilton with the numerals which were added to the Kent list strongly indicates that the changes are in the writing of Hamilton. The Kent list thus becomes the only evidence in Hamilton’s writing which now exists. See also James Kent to William Coleman, May 12, 1817 ( ALS , Columbia University Libraries).

Certain reasonable deductions can be made from the evidence presented by Kent’s notes. The ink clearly reveals that the three notes were made at different times. The information in part I of the notes was obtained from someone other than Hamilton, for otherwise Kent would not have written in part II “that Mr. Hamilton told me.” The information in part II must have been given to Kent in a conversation, for it is evident that Kent was not sure that he remembered what Hamilton had said or that Hamilton could remember, without reference to a copy of The Federalist , which essays he had written.

Part III—because it refers to Hamilton as “general” (a rank which he attained in 1798), and because the conversation alluded to took place in Albany—must have been made between 1800, the year in which Hamilton resumed his law practice after completing his duties as inspector general of the Army, and his death in 1804. The third section of Kent’s memorandum also indicates that Hamilton corrected and approved the Kent list. It constitutes, therefore, the most reliable evidence available on Hamilton’s claims of authorship. It should be noted, however, that Kent later doubted the accuracy of Hamilton’s memory, for on the page opposite his memorandum he pasted a copy of the article from the City of Washington Gazette , which stated that Madison had written essays 10, 14, 17, 18, 19, 21, 37–58, 62–63, and that Jay was the author of essays 2, 3, 4, 5, 64. Underneath this clipping Kent wrote:

“I have no doubt Mr. Jay wrote No 64 on the Treaty Power—He made a Speech on that Subject in the NY Convention, & I am told he says he wrote it. I suspect therefore from internal Ev. the above to be the correct List, & not the one on the opposite page.” 31

A comparison of the Kent list (for those essays claimed by Hamilton) with the Gideon edition (for those essays claimed by Madison) makes it clear that there is room for doubt only over the authorship of essays 18, 19, 20, 50, 51, 52, 54–58, and 62–63. About three of these—18, 19, and 20—there should be no dispute, for there is a statement by Madison which Hamilton’s claim does not really controvert. On the margin of his copy of The Federalist opposite number 18 Madison wrote:

“The subject matter of this and the two following numbers happened to be taken up by both Mr. H and Mr. M. What had been prepared by Mr. H who had entered more briefly into the subject, was left with Mr. M on its appearing that the latter was engaged in it, with larger materials, and with a view to a more precise delineation; and from the pen of the latter, the several papers went to the Press.”

The problem of determining the authorship of these three essays is merely one of deciding on the comparative contributions of the two men. Although there are several sentences which are very similar to remarks Hamilton recorded in the outline for his speech of June 18, 1787, on the Constitution, most of the material was undoubtedly supplied by Madison who without doubt wrote these essays. Essay 20, for example, is virtually a copy of notes which Madison had taken in preparation for the Constitutional Convention. 32 On the other hand, Hamilton, however slight his contribution, did contribute to these essays. The authorship of 50, 51, 52, 54, 55, 56, 57, 58, 62, and 63 is more difficult to determine, 33 but Madison’s claim as represented by the Gideon edition appears more convincing than Hamilton’s claim as represented by the Kent list.

Internal evidence has proved to be of little assistance in determining the authorship of The Federalist . The ablest studies in this field are those by Edward G. Bourne 34 and J. C. Hamilton. 35 Bourne attributes all disputed essays to Madison; J. C. Hamilton asserts that they were written by his father. Bourne and J. C. Hamilton attempt to prove their respective cases by printing excerpts from the disputed essays parallel to similar, and sometimes identical, passages from other writings by each man. Bourne presents very convincing evidence for Madison’s authorship of numbers 49, 51, 53, 62, 63, and a fair case for Madison having written numbers 50 and 52; his case for 54, 55, 56, 57, and 58 is particularly weak as he offers no evidence from Madison’s other writings and relies on the argument that, as essays 48–58 are a group, the author who wrote the earlier essays must also have written the later ones in the group. J. C. Hamilton, on the other hand, produces some evidence that Hamilton wrote essays 55–58, and he offers contrived and unconvincing arguments in support of Hamilton’s authorship of the remaining disputed essays. The significant point, however, is that each man was able to find evidence that his candidate wrote all the disputed essays. The contradictory conclusions of these two men—one of whom studied intensively the previous writings of Madison and the other whose life-long study of his father gave him a knowledge of Hamilton’s writings which never has been excelled—point up the difficulties of deciding this dispute on the basis of internal evidence.

The problems posed by internal evidence are made even more difficult by the fact that both Hamilton and Madison defended the Constitution with similar arguments and by the fact that they both had a remarkably similar prose style. To attempt to find in any of the disputed essays words which either man used and which the other never employed is futile, if only because the enormous amount which each wrote allows the assiduous searcher to discover almost any word in the earlier or subsequent writings of both. 36 The search for parallel statements in the disputed essays and in earlier writings is also an unrewarding enterprise. Madison doubtless did not approve of the ideas expressed in Hamilton’s famous speech on June 18, 1787, to the Convention; but before 1787 both men agreed on the weaknesses of the Confederation and the necessity of a stronger central government. 37 The similarity of their thinking is particularly apparent to one who examines their collaboration when they were both members of the Continental Congress in 1783. Their later political differences prove little about what they wrote in 1787–88.

If one were to rely on internal evidence, it would be impossible to assign all the disputed essays to either Hamilton or Madison. While such evidence indicates that Madison surely wrote numbers 49–54 and probably 62–63, it also suggests that Hamilton wrote 55–58. In this edition of Hamilton’s writings, however, greater weight is given to the claims made by the disputants than to internal evidence. Madison’s claims were maturely considered and emphatically stated; Hamilton, on the other hand, showed little interest in the question, and he died before it had become a matter of acrimonious controversy. But the fact remains that Hamilton’s claims have never been unequivocally refuted, and the possibility remains that he could have written essays 50–52, 54–58, 62–63. As a consequence, these essays have been printed in this edition of Hamilton’s writings. Madison’s adherents may, however, derive some consolation from the fact that in the notes to each of these essays it is stated that Madison’s claims to authorship are superior to those of Hamilton.

1 .  The most important of these was by “Cato,” presumably George Clinton. The first “Cato” letter was published in The New-York Journal, and Weekly Register on September 27, 1787.

2 .  See, for example, the two articles by “Caesar” ( September 28 and October 15, 1787 ), which erroneously have been attributed to H.

3 .  An anonymous newspaper article, signed “Aristides” and published in The [New York] Daily Advertiser on October 6, stated that H’s absence from the city prevented him from defending himself against newspaper attacks. An entry in H’s Cash Book dated November 4 (see “Cash Book,” March 1, 1782–1791 ) indicates that he attended the October session of the Supreme Court in Albany.

4 .  The story was first related in Hamilton, History description begins John C. Hamilton, Life of Alexander Hamilton, a History of the Republic of the United States of America (Boston, 1879). description ends III, 369, and has been repeated in most works on The Federalist .

5 .  A memorandum by Madison entitled “The Federalist,” quoted in J. C. Hamilton, ed., The Federalist: a Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865), I, lxxxv.

The essays by William Duer, signed “Philo-Publius,” are published at the end of the second volume of J. C. Hamilton’s edition of The Federalist .

6 .  Morris to W. H. Wells, February 24, 1815, in Sparks, The Life of Gouverneur Morris description begins Jared Sparks, The Life of Gouverneur Morris (Boston, 1832). description ends , III, 339.

7 .  Drafts of only two essays, 5 and 64, both of which were written by John Jay, have been found. The draft of essay 5 is in the John Jay Papers, Columbia University Libraries. The draft of essay 64 is in the New-York Historical Society, New York City. The draft of essay 3 is now owned by Mr. Ruddy Ruggles of Chicago.

8 .  Most writers have stated that all the essays first appeared in The Independent Journal: or, the General Advertiser or New-York Packet . Others (J. C. Hamilton and Henry B. Dawson, for example) were aware that they appeared first in different newspapers, but they did not determine accurately the newspaper in which each essay first appeared.

The Independent Journal and New-York Packet carried the entire series of essays, while The Daily Advertiser ceased to print them after essay 51. The New-York Journal carried only essays 23 through 39. At no time, however, did an essay appear in The New-York Journal without appearing in at least one of the three other papers at the same time. On January 1, 1788, Thomas Greenleaf, editor of the Journal and supporter of George Clinton, printed a letter signed “45 Subscribers” which complained about Greenleaf’s publication of “Publius,” which was already appearing in three newspapers. Shortly after this, on January 30, 1788, Greenleaf discontinued publication of the essays with number 39 (numbered by him 37).

9 .  The full title is The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed Upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, No. 41, Hanover-Square. MDCCLXXXVIII). This is referred to hereafter as the “McLean edition.”

10 .  The Independent Journal: or, the General Advertiser January 1, 1788.

11 .  There is no question that H was the author of the preface and that he corrected the essays. Not only was this stated by McLean’s advertisement, but Madison, writing years later, said that the essays “were edited as soon as possible in two small vols. the preface to the 1st. vol. drawn up by Mr. H., bearing date N. York Mar. 1788” ( Hunt, Writings of Madison description begins Gaillard Hunt, ed., The Writings of James Madison (New York, 1902). description ends , VIII, 411).

12 .  The first French edition, published in two volumes in 1792, listed the authors as “MM. Hamilton, Madisson et Gay, Citoyens de l’Etat de New-York.” The second edition, published in 1795 and also in two volumes, named “MM. Hamilton, Madisson et Jay” as the authors. For a description of these editions, see The Fœderalist: A Collection of Essays, Written in Favor of the New Constitution, as Agreed upon by the Fœderal Convention, September 17, 1787. Reprinted from the Original Text . With an Historical Introduction and Notes by Henry B. Dawson. In Two Volumes (Morrisania, New York, 1864), I, lxiv–lxvi.

13 .  The FEDERALIST, On the New Constitution. By Publius. Written in 1788. To Which is Added, PACIFICUS, On the Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, At Washington’s Head, 1802). Cited hereafter as the “Hopkins edition.”

14 .  J. C. Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xci, xcii.

15 .  Henry B. Dawson, The Fœderalist , I, lxx–lxxi.

16 .  The Federalist, on The New Constitution, written in the year 1788, By Mr. Hamilton, Mr. Madison, and Mr. Jay with An Appendix, containing The Letters of Pacificus and Helvidius, on the Proclamation of Neutrality of 1793; Also the Original Articles of Confederation, and The Constitution of the United States, with the Amendments Made Thereto. A New Edition. The Numbers Written by Mr. Madison corrected by Himself (City of Washington: Printed and Published by Jacob Gideon, Jun., 1818). Cited hereafter as the “Gideon edition.”

17 .  Three days after the publication of the first essay, Hamilton sent George Washington a copy of it. Hamilton wrote that the essay was “the first of a series of papers to be written in its [the Constitution’s] defense.” Washington, of course, knew that H was the author, for H customarily sent to Washington anonymous newspaper articles which he wrote. On December 2, 1787, Madison wrote to Edmund Randolph:

“The enclosed paper contains two numbers of the Federalist. This paper was begun about three weeks ago, and proposes to go through the subject. I have not been able to collect all the numbers, since my return to Philad, or I would have sent them to you. I have been the less anxious, as I understand the printer means to make a pamphlet of them, when I can give them to you in a more convenient form. You will probably discover marks of different pens. I am not at liberty to give you any other key, than, that I am in myself for a few numbers; and that one, besides myself was a member of the Convention.” ( Hunt, Writings of Madison description begins Gaillard Hunt, ed., The Writings of James Madison (New York, 1902). description ends , V, 60–61.)

18 .  The first edition of The Federalist which attributed specific essays to individual authors appeared as the second and third volumes of a three-volume edition of H’s writings published in 1810 ( The Federalist, on the new constitution; written in 1788, by Mr. Hamilton, Mr. Jay, and Mr. Madison … A new edition, with the names and portraits of the several writers . In Two Volumes [New York, published by Williams & Whiting, 1810]).

19 .  The letter in The Port Folio of November 14, 1807, reads as follows:

“Mr. OLDSCHOOL,

“The Executors of the last will of General HAMILTON have deposited in the Publick Library of New-York a copy of ‘ The Federalist ,’ which belonged to the General in his lifetime, in which he has designated, in his own hand-writing, the parts of that celebrated work written by himself, as well as those contributed by Mr. JAY and Mr. MADISON. As it may not be uninteresting to many of your readers, I shall subjoin a copy of the General’s memorandum for publication in ‘The Port Folio.’   M.

“Nos. 2, 3, 4, 5, 54 Mr. JAY. Nos. 10, 14, 37, to 48 inclusive, Mr. MADISON. Nos. 18, 19, 20, Mr. HAMILTON and Mr. MADDISON jointly—all the rest by Mr. HAMILTON.”

20 .  There are several lists other than those subsequently discussed in the text. On the flyleaf of volume 1 of his copy of The Federalist , Thomas Jefferson wrote the following: “No. 2. 3. 4. 5. 64 by Mr. Jay. No. 10. 14. 17. 18. 19. 21. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 62. 63. by Mr. Madison. The rest of the work by Alexander Hamilton.” Jefferson’s copy of The Federalist , now in the Rare Book Room of the Library of Congress, came to him indirectly from H’s wife, Elizabeth. It bears the inscription: “For Mrs. Church from her Sister . Elizabeth Hamilton.” The words, “For Mrs. Church from her Sister ,” are in the handwriting of Elizabeth Hamilton. Angelica Schuyler Church, despite her admiration for her brother-in-law, had long been a friend of Jefferson and must have sent her copy of The Federalist to him. It is not known from whom Jefferson got his information on the authorship of the essays, but presumably it was from Madison. It will be noted that there is only one minor difference between Jefferson’s attribution of the essays and that made by Madison: Jefferson attributed essay 17 to Madison. A facsimile is printed in E. Millicent Sowerby, Catalog of the Library of Thomas Jefferson (Washington, D.C., 1953), III, 228.

On the title page of George Washington’s copy of The Federalist there is an assignment of authorship which reads as follows: “Jay author—1, 2, 3, 4, 5, and 54. Madison—10, 14, 37–48 exclusive of last. 18, 19, 20, productive of Jay, AH and Madison. All rest by Gen’l Hamilton.” This memorandum is in an unidentified handwriting. Except for two differences it conforms to the Benson list. Without more information on the source of the list, its reliability is highly suspect (Washington’s copy of The Federalist is in the National Archives).

Henry Cabot Lodge in his edition of The Federalist ( HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , XI, xxvii), placed in evidence lists of authors which he found in copies of The Federalist owned by Fisher Ames and George Cabot. Both correspond to the Benson list.

21 .  Jay’s authorship of these essays is incontestable. H supposedly stated in the Benson list that he wrote 64 and that Jay was the author of 54. The draft of 64, in the writing of Jay, is in the New-York Historical Society, New York City. Both H and Madison agreed that Jay wrote 2, 3, 4, and 5.

That Jay contributed only five essays was due to an attack of rheumatism which lasted through the winter of 1787. It was not due, as his earlier biographers stated, to an injury which he received in the “Doctors’ Riot” in New York. The riot did not occur until April, 1788, by which time most of the “Publius” essays had been written (Frank Monaghan, John Jay [New York, 1935], 290).

22 .  “I take upon me to state from indubitable authority,” Corrector wrote “that Mr. Madison wrote Nos. 10, 14, 18, 19, 20, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, 63, and 64. Mr. Jay wrote Nos. 2, 3, 4, and 5; and Mr. Hamilton the residue” ([Washington] National Intelligencer , March 20, 1817).

23 .  Benjamin Rush, the oldest son of Richard, sent Henry B. Dawson the following description of the notes in the edition of The Federalist owned by his father: “On a fly-leaf of the second volume there is the following memorandum in my father’s handwriting. I copy it exactly as it appears: ‘The initials, J.M. J.J. and A.H. throughout the work, are in Mr. Madison’s hand, and designate the author of each number. By these it will be seen, that although the printed designations are generally correct, they are not always so’” (Benjamin Rush to Dawson, August 29, 1863, New-York Historical Society, New York City).

Madison’s attribution of authorship, according to Benjamin Rush, was exactly the same as that which the Virginian authorized in the Gideon edition.

24 .  The anonymous author of the article in the City of Washington Gazette stated that Madison wrote essays 10, 14, 17, 18, 19, 21, 37–58, 62–63, that Jay was the author of essays 2, 3, 4, 5, and 64, and that H wrote the rest.

25 .  Gideon, p. 3. In this edition, essays 10, 14, 18–20, 37–58, 62–63 are assigned to Madison; 2, 3, 4, 5, and 64 to Jay; and the remainder to H. Madison’s copy of The Federalist , with corrections in his handwriting, is in the Rare Book Room of the Library of Congress.

26 .  The memorandum by H, as printed by William Coleman, reads as follows: “Nos. 2. 3. 4. 5. 54, Mr. Jay; Nos. 10, 14, 37 to 48 inclusive, Mr. Madison; Nos. 18, 19, 20, Mr. Hamilton and Mr. Madison jointly; all the rest by Mr. Hamilton” ( New-York Evening Post , March 25, 1817).

27 .  According to Coleman the memorandum was deposited by Egbert Benson in “the city library,” as the New York Society Library was then sometimes known. The remainder of the story related in this paragraph is taken from J. C. Hamilton’s account of a “ Copy of a statement in my possession made for me by Egbert Benson, Esq., a nephew of Judge Benson.” It is quoted in Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii.

28 .  New-York Evening Post , January 23, 1818.

The volume from which the memorandum was stolen may have been at one time in the New York Society Library; however, it is no longer there. That library has no McLean edition of The Federalist that bears any marks which indicate that a piece of paper once had been pasted on the inside cover.

29 .  Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii. The italics have been inserted.

J. C. Hamilton did not get this statement from Robert Benson. It was, as has been stated, from the “ Copy of a statement in my possession made for me by Egbert Benson, Esq., a nephew of Judge Benson” ( ibid. , xcvii).

30 .  For the attribution of authorship which H made in his copy of The Federalist , see note 20.

H’s copy is now in neither the New York Society Library, the New-York Historical Society, nor the New York Public Library, and those libraries have no record of ever having owned it. G. W. Cole, ed., A Catalogue of Books Relating to the Discovery and Early History of North and South America, The E. D. Church Library (New York, 1907), V, Number 1230, lists an item purporting to be H’s copy of The Federalist with notes in his writing. According to the librarian of the Huntington Library, San Marino, California, which acquired the Church library, the notes were not in the writing of H. The book, which is no longer in the Huntington Library, was sold to an unknown purchaser.

J. C. Hamilton, probably unintentionally, contradicts the statement that the names of the authors in his father’s copy of The Federalist were in H’s handwriting. He stated that his father dictated to him the authors of the essays which he then copied into H’s copy ( The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii).

31 .  Not too much reliance should be placed on Kent’s endorsement of the Madison list in the City of Washington Gazette . According to that list, Madison wrote not only all the disputed essays but also essay 17. As Madison’s most ardent defenders assign this essay to H, it seems that Kent’s statement indicated nothing more than his suspicion that H may have made errors in his assignment of authors of the essays.

While Kent’s statement shows that he doubted the accuracy of the attribution of essays made by H, it raises several questions that cannot satisfactorily be answered. The clipping from the City of Washington Gazette was dated December 15, 1817, and the notes on the opposite page of the flyleaf, as stated in the text, could not have been written later than 1804. How, then, could Kent have written that he doubted that Jay wrote essay 64 when the essay was attributed to Jay on a page which was in front of Kent as he wrote? The only possible answer is that Kent, when writing in 1817 or later, failed to look carefully at the changes which had been made in his earlier memorandum and had his uncorrected list in mind. Whatever the explanation for his later statement, it is at least certain that he did not change the earlier list after he saw the article in the City of Washington Gazette .

32 .  “Notes of Ancient and Modern Confederacies, preparatory to the federal Convention of 1787” ( Madison, Letters description begins James Madison, Letters and Other Writings of James Madison (Philadelphia, 1867). description ends , I, 293–315).

33 .  A favorite argument of those who support Madison’s claim to essays 49–58 of The Federalist is that since those essays constitute a unit, one man must have written all of them. The essays deal with: 1. the necessity of the departments of government having checks on each other, and 2. the House of Representatives. Madison’s defenders, in their desire to prove his authorship, forget that essays 59, 60, and 61, essays which they attribute to H, also deal with the House of Representatives. There are, furthermore, several obvious breaks in continuity among the essays from 48 to 58, at which a change of authors could have taken place. Essay 51, for example, ends the discussion of the necessity that “these departments shall be so far connected and blended as to give to each a constitutional control over the others,” and essay 52 begins the discussion of the House of Representatives. A change could also have occurred after essay 54 or essay 57. This is not to say that changes in authorship did occur; it is to indicate that the “unit” argument will not stand up under scrutiny.

34 .  “The Authorship of the Federalist,” The American Historical Review , II (April, 1897), 443–60.

35 .  The fact that only Bourne and J. C. Hamilton are cited does not mean that other studies of the authorship of The Federalist have been ignored or overlooked. It means rather that other authors, while sometimes introducing new arguments, have relied heavily on the research of Bourne and J. C. Hamilton. To cite all those who have agreed with Bourne or Hamilton would be redundant; to summarize all the arguments of the numerous students of The Federalist —based for the most part on Bourne and Hamilton’s original research—is a task best left to the historiographer of that work.

There have been, of course, other able studies of the authorship of the disputed essays. Among the defenders of H’s claim, Henry Cabot Lodge (“The Authorship of the Federalist,” HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , XI, xv–xlv) and Paul L. Ford (“The Authorship of The Federalist,” The American Historical Review , II [July, 1897], 675–82) have been the most able advocates. The most convincing exponent of Madison’s claim since Bourne is Douglass Adair (“The Authorship of the Disputed Federalist Papers,” The William and Mary Quarterly , 3rd. ser., Vol. I, Numbers 2 and 3 [April and July, 1944], 97–122, 235–64). In two essays which brilliantly summarize the century-old controversy over the authorship of the disputed essays, Adair amplifies the research of Bourne and attempts to assign the disputed essays on the basis of the political philosophy which they reveal.

36 .  See, for example, S. A. Bailey, “Notes on Authorship of Disputed Numbers of the Federalist,” Case and Comment , XXII (1915), 674–75. Bailey credits Madison with sole authorship of the disputed essays on the basis of the use of the word “while” by H and “whilst” by Madison. Although the evidence for Bailey’s conclusion is convincing—and there is far more evidence than he produces—his argument is destroyed by H’s occasional use of “whilst.” In essay 51, for example, H, who himself edited the essays for publication by McLean, substituted “whilst” for “and.” In essay 81, certainly written by H, the word “whilst” is used. Edward G. Bourne (see note 35), to give another example, offers as evidence for Madison’s authorship of essay 56 his use of the word “monitory,” which, according to Bourne, was “almost a favorite word with Madison.” Yet in essay 26, H, in revising the essays for publication in the McLean edition, changed “cautionary” to “monitory.” Similarly, to assign authorship on the basis of differences in the spelling of certain words in different essays—for example, “color” or “colour,” “federal” or “fœderal”—would be hazardous. The editors of the various newspapers in which the essays appeared obviously changed the spelling of certain words to conform to their individual preferences.

37 .  Similarity between a statement in one of the disputed essays and an earlier remark in the writings of either Madison or H is perhaps valid evidence. It does not seem relevant, however, to attempt to prove authorship by reference to the later writings of either of the men. As both presumably read all the essays, they might later have borrowed a statement from a number of The Federalist written by the other without being aware of its source.

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Federalist papers

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Federalist papers , series of 85 essays on the proposed new Constitution of the United States and on the nature of republican government , published between 1787 and 1788 by Alexander Hamilton , James Madison , and John Jay in an effort to persuade New York state voters to support ratification. Seventy-seven of the essays first appeared serially in New York newspapers, were reprinted in most other states, and were published in book form as The Federalist on May 28, 1788; the remaining eight essays appeared in New York newspapers between June 14 and August 16, 1788.

All the papers appeared over the signature “Publius,” and the authorship of some of the papers was once a matter of scholarly dispute . However, computer analysis and historical evidence has led nearly all historians to assign authorship in the following manner: Hamilton wrote numbers 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85; Madison , numbers 10, 14, 18–20, 37–58, and 62–63; and Jay, numbers 2–5 and 64.

The authors of the Federalist papers presented a masterly defense of the new federal system and of the major departments in the proposed central government. They also argued that the existing government under the Articles of Confederation , the country’s first constitution, was defective and that the proposed Constitution would remedy its weaknesses without endangering the liberties of the people.

As a general treatise on republican government, the Federalist papers are distinguished for their comprehensive analysis of the means by which the ideals of justice , the general welfare , and the rights of individuals could be realized. The authors assumed that people’s primary political motive is self-interest and that people—whether acting individually or collectively—are selfish and only imperfectly rational. The establishment of a republican form of government would not of itself provide protection against such characteristics: the representatives of the people might betray their trust; one segment of the population might oppress another; and both the representatives and the public might give way to passion or caprice . The possibility of good government, they argued, lay in the crafting of political institutions that would compensate for deficiencies in both reason and virtue in the ordinary conduct of politics. This theme was predominant in late 18th-century political thought in America and accounts in part for the elaborate system of checks and balances that was devised in the Constitution.

The authors of the Federalist papers argued against the decentralization of political authority under the Articles of Confederation. They worried, for example, that national commercial interests suffered from intransigent economic conflicts between states and that federal weakness undermined American diplomatic efforts abroad. Broadly, they argued that the government’s impotence under the Articles of Confederation obstructed America’s emergence as a powerful commercial empire.

The authors were also critical of the power assumed by state legislatures under the Articles of Confederation—and of the characters of the people serving in those assemblies. In the authors’ view, the farmers and artisans who rose to power in postrevolutionary America were too beholden to narrow economic and regional interests to serve the broader public good. Of particular concern to the authors was the passage by state legislatures of pro-debtor legislation and paper money laws that threatened creditors’ property rights . Unlike most Americans of the period, who typically worried about the conspiracies of the elite few against the liberties of the people, the authors were concerned about tyrannical legislative majorities threatening the rights of propertied minorities. The Articles of Confederation, in their view, had provided no safeguards against the vices of the people themselves, and the American Revolution’s enthusiasm for liberty had diminished popular appreciation of the need for good governance. The Federalist papers presented the 1786–87 insurrection of debtor farmers in western Massachusetts— Shays’s Rebellion —as a symptom of this broader crisis.

The authors of the Federalist papers argued for an increase in the “energy” of the federal government to respond to this crisis. However, the national government’s increased power would have to be based in republican principles and retain a federal distribution of power; there would be no return to monarchical rule or consolidation of central authority.

In one of the most notable essays, “Federalist 10,” Madison rejected the then common belief that republican government was possible only for small states. He argued that stability, liberty, and justice were more likely to be achieved in a large area with a numerous and heterogeneous population. Although frequently interpreted as an attack on majority rule, the essay is in reality a defense of both social, economic, and cultural pluralism and of a composite majority formed by compromise and conciliation. Decision by such a majority, rather than by a monistic one, would be more likely to accord with the proper ends of government. This distinction between a proper and an improper majority typifies the fundamental philosophy of the Federalist papers; republican institutions, including the principle of majority rule, were not considered good in themselves but were good because they constituted the best means for the pursuit of justice and the preservation of liberty.

U.S. Constitution.net

Federalist Papers and the Constitution

During the late 1780s, the United States faced significant challenges with its initial governing framework, the Articles of Confederation. These issues prompted the creation of the Federalist Papers, a series of essays aimed at advocating for a stronger central government under the newly proposed Constitution. This article will examine the purpose, key arguments, and lasting impact of these influential writings.

Background and Purpose of the Federalist Papers

The Articles of Confederation, though a pioneer effort, left Congress without the power to tax or regulate interstate commerce, making it difficult to pay off Revolutionary War debts and curb internal squabbles among states.

In May 1787, America's brightest political minds convened in Philadelphia and created the Constitution—a document establishing a robust central government with legislative, executive, and judicial branches. However, before it could take effect, the Constitution needed ratification from nine of the thirteen states, facing opposition from critics known as Anti-Federalists.

The Federalist Papers, a series of 85 essays written by Alexander Hamilton , James Madison , and John Jay under the pseudonym "Publius," aimed to calm fears and win support for the Constitution. Hamilton initiated the project, recruiting Madison and Jay to contribute. Madison drafted substantial portions of the Constitution and provided detailed defenses, while Jay, despite health issues, also contributed essays.

The Federalist Papers systematically dismantled the opposition's arguments and explained the Constitution's provisions in detail. They gained national attention, were reprinted in newspapers across the country, and eventually collated into two volumes for broader distribution.

Hamilton emphasized the necessity of a central authority with the power to tax and enforce laws, citing specific failures under the Articles like the inability to generate revenue or maintain public order. Jay addressed the need for unity and the inadequacies of confederation in foreign diplomacy.

The Federalist Papers provided the framework needed to understand and eventually ratify the Constitution, remaining essential reading for anyone interested in the foundations of the American political system.

Key Arguments in the Federalist Papers

Among the key arguments presented in the Federalist Papers, three themes stand out:

• The need for a stronger central government
• The importance of checks and balances
• The dangers of factionalism

Federalist No. 23 , written by Alexander Hamilton, argued for a robust central government, citing the weaknesses of the Articles of Confederation. Hamilton contended that empowering the central government with the means to enforce laws and collect taxes was essential for the Union's survival and prosperity.

In Federalist No. 51 , James Madison addressed the principle of checks and balances, arguing that the structure of the new government would prevent any single branch from usurping unrestrained power. Each branch—executive, legislative, and judicial—would have the means and motivation to check the power of the others, safeguarding liberty.

Federalist No. 10 , also by Madison, delved into the dangers posed by factions—groups united by a common interest adverse to the rights of others or the interests of the community. Madison acknowledged that factions are inherent within any free society and cannot be eliminated without destroying liberty. He argued that a well-constructed Union would break and control the violence of faction by filtering their influence through a large republic.

Hamilton's Federalist No. 78 brought the concept of judicial review to the forefront, establishing the judiciary as a guardian of the Constitution and essential for interpreting laws and checking the actions of the legislature and executive branches. 1

The Federalist Papers meticulously dismantled Anti-Federalist criticisms and showcased how the proposed system would create a stable and balanced government capable of both governing effectively and protecting individual rights. These essays remain seminal works for understanding the underpinnings of the United States Constitution and the brilliance of the Founding Fathers.

Analysis of Federalist 10 and Federalist 51

Federalist 10 and Federalist 51 are two of the most influential essays within the Federalist Papers, elucidating fundamental principles that continue to support the American political system. They were carefully crafted to address the concerns of Anti-Federalists who feared that the new Constitution might pave the way for tyranny and undermine individual liberties.

In Federalist 10 , James Madison addresses the inherent dangers posed by factions. He argues that a large republic is the best defense against their menace, as it becomes increasingly challenging for any single faction to dominate in a sprawling and diverse nation. The proposed Constitution provides a systemic safeguard against factionalism by implementing a representative form of government, where elected representatives act as a filtering mechanism.

Federalist 51 further elaborates on how the structure of the new government ensures the protection of individual rights through a system of checks and balances. Madison supports the division of government into three coequal branches, each equipped with sufficient autonomy and authority to check the others. He asserts that ambition must be made to counteract ambition, emphasizing that the self-interest of individuals within each branch would serve as a natural check on the others. 2

Madison also delves into the need for a bicameral legislature, comprising the House of Representatives and the Senate. This dual structure aims to balance the demands of the majority with the necessity of protecting minority rights, thereby preventing majoritarian tyranny.

Together, Federalist 10 and Federalist 51 form a comprehensive blueprint for a resilient and balanced government. Madison's insights address both the internal and external mechanisms necessary to guard against tyranny and preserve individual liberties. These essays speak to the enduring principles that have guided the American republic since its inception, proving the timeless wisdom of the Founding Fathers and the genius of the American Constitution.

Impact and Legacy of the Federalist Papers

The Federalist Papers had an immediate and profound impact on the ratification debates, particularly in New York, where opposition to the Constitution was fierce and vocal. Alexander Hamilton, a native of New York, understood the weight of these objections and recognized that New York's support was crucial for the Constitution's success, given the state's economic influence and strategic location. The essays were carefully crafted to address New Yorkers' specific concerns and to persuade undecided delegates.

The comprehensive detail and logical rigor of the Federalist Papers succeeded in swaying public opinion. They systematically addressed Anti-Federalist critiques, such as the fear that a strong central government would trample individual liberties. Hamilton, Madison, and Jay argued for the necessity of a powerful, yet balanced federal system, capable of uniting the states and ensuring both national security and economic stability.

In New York, the Federalist essays began appearing in newspapers in late 1787 and continued into 1788. Despite opposition, especially from influential Anti-Federalists like Governor George Clinton, the arguments laid out by "Publius" played a critical role in turning the tide. They provided Federalists with a potent arsenal of arguments to counter Anti-Federalists at the state's ratification convention. When the time came to vote, the persuasive power of the essays contributed significantly to New York's eventual decision to ratify the Constitution by a narrow margin.

The impact of the Federalist Papers extends far beyond New York. They influenced debates across the fledgling nation, helping to build momentum towards the required nine-state ratification. Their detailed exposition of the Constitution's provisions and the philosophic principles underlying them offered critical insights for citizens and delegates in other states. The essays became indispensable tools in the broader national dialogue about what kind of government the United States should have, guiding the country towards ratification.

The long-term significance of the Federalist Papers in American political thought and constitutional interpretation is substantial. Over the centuries, they have become foundational texts for understanding the intentions of the Framers. Jurists, scholars, and lawmakers have turned to these essays for guidance on interpreting the Constitution's provisions, shaping American constitutional law. Judges, including the justices of the Supreme Court, have frequently cited these essays in landmark rulings to elucidate the Framers' intent.

The Federalist Papers have profoundly influenced the development of American political theory, contributing to discussions about federalism, republicanism, and the balance between liberty and order. Madison's arguments in Federalist No. 10 have become keystones in the study of pluralism and the mechanisms by which diverse interests can coexist within a unified political system.

The essays laid the groundwork for ongoing debates about the role of the federal government, the balance of power among its branches, and the preservation of individual liberties. They provided intellectual support for later expansions of constitutional rights through amendments and judicial interpretations.

Their legacy also includes a robust defense of judicial review and the judiciary's role as a guardian of the Constitution. Hamilton's Federalist No. 78 provided a compelling argument for judicial independence, which has been a cornerstone in maintaining the rule of law and protecting constitutional principles against transient political pressures.

The Federalist Papers were crucial in the ratification of the Constitution, particularly in the contentious atmosphere of New York's debates. Their immediate effect was to facilitate the acceptance of the new governing framework. In the long term, their meticulously argued positions have provided a lasting blueprint for constitutional interpretation, influencing American political thought and practical governance for over two centuries. The essays stand as a testament to the foresight and philosophical acumen of the Founding Fathers, continuing to illuminate the enduring principles of the United States Constitution.

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Course: US history   >   Unit 3

• The Articles of Confederation
• What was the Articles of Confederation?
• Shays's Rebellion
• The Constitutional Convention
• The US Constitution

The Federalist Papers

• The Bill of Rights
• Social consequences of revolutionary ideals
• The presidency of George Washington
• Why was George Washington the first president?
• The presidency of John Adams
• Regional attitudes about slavery, 1754-1800
• Continuity and change in American society, 1754-1800
• Creating a nation

• The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788.
• The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.
• The Federalist Papers is considered one of the most significant American contributions to the field of political philosophy and theory and is still widely considered to be the most authoritative source for determining the original intent of the framers of the US Constitution.

The Articles of Confederation and Constitutional Convention

• In Federalist No. 10 , Madison reflects on how to prevent rule by majority faction and advocates the expansion of the United States into a large, commercial republic.
• In Federalist No. 39 and Federalist 51 , Madison seeks to “lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty,” emphasizing the need for checks and balances through the separation of powers into three branches of the federal government and the division of powers between the federal government and the states. 4 ‍  
• In Federalist No. 84 , Hamilton advances the case against the Bill of Rights, expressing the fear that explicitly enumerated rights could too easily be construed as comprising the only rights to which American citizens were entitled.

What do you think?

• For more on Shays’s Rebellion, see Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002).
• Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles, and Letters During the Struggle over Ratification; Part One, September 1787 – February 1788 (New York: Penguin Books, 1993).
• See Federalist No. 1 .
• See Federalist No. 51 .
• For more, see Michael Meyerson, Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (New York: Basic Books, 2008).

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Federalist Papers

George Washington  was sent draft versions of the first seven essays on November 18, 1787 by James Madison, who revealed to Washington that he was one of the anonymous writers. Washington agreed to secretly transmit the drafts to his in-law David Stuart in Richmond, Virginia so the essays could be more widely published and distributed. Washington explained in a letter to David Humphreys that the ratification of the Constitution would depend heavily "on literary abilities, & the recommendation of it by good pens," and his efforts to proliferate the Federalist Papers reflected this feeling. 1

Washington was skeptical of Constitutional opponents, known as Anti-Federalists, believing that they were either misguided or seeking personal gain. He believed strongly in the goals of the Constitution and saw The Federalist Papers and similar publications as crucial to the process of bolstering support for its ratification. Washington described such publications as "have thrown new lights upon the science of Government, they have given the rights of man a full and fair discussion, and have explained them in so clear and forcible a manner as cannot fail to make a lasting impression upon those who read the best publications of the subject, and particularly the pieces under the signature of Publius." 2

Although Washington made few direct contributions to the text of the new Constitution and never officially joined the Federalist Party, he profoundly supported the philosophy behind the Constitution and was an ardent supporter of its ratification.

The philosophical influence of the Enlightenment factored significantly in the essays, as the writers sought to establish a balance between centralized political power and individual liberty. Although the writers sought to build support for the Constitution, Madison, Hamilton, and Jay did not see their work as a treatise, per se, but rather as an on-going attempt to make sense of a new form of government.

The Federalist Paper s represented only one facet in an on-going debate about what the newly forming government in America should look like and how it would govern. Although it is uncertain precisely how much The Federalist Papers affected the ratification of the Constitution, they were considered by many at the time—and continue to be considered—one of the greatest works of American political philosophy.

Adam Meehan The University of Arizona

Notes: 1. "George Washington to David Humphreys, 10 October 1787," in George Washington, Writings , ed. John Rhodehamel (New York: Library of America, 1997), 657.

2. "George Washington to John Armstrong, 25 April 1788," in George Washington, Writings , ed. John Rhodehamel (New York: Library of America, 1997), 672.

Bibliography: Chernow, Ron. Washington: A Life . New York: Penguin, 2010.

Epstein, David F. The Political Theory of The Federalist . Chicago: University of Chicago Press, 1984.

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

George Washington, Writings , ed. John Rhodehamel. New York: Library of America, 1997.

The American Founding

Introduction to the Federalist Papers

Origin of the Federalist

The 85 essays appeared in one or more of the following four New York newspapers: 1)  The New York Journal , edited by Thomas Greenleaf, 2)  Independent Journal , edited by John McLean, 3)  New York Advertiser , edited by Samuel and John Loudon, and 4)  Daily Advertiser , edited by Francis Childs. This site uses the 1818 Gideon edition. Initially, they were intended to be a 20-essay response to the  Antifederalist  attacks on the  Constitution  that were flooding the New York newspapers right after the  Constitution  had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27,  George Mason ‘s objections were in circulation and the Brutus Essays were launched on October 18. The number of essays in  The Federalist  was extended in response to the relentless, and effective,  Antifederalist  criticism of the proposed  Constitution .

McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of  The Federalist  appeared between January 11 and April 2, 1788. On May 28, McLean took  Federalist  37-77 as well as the yet to be published  Federalist  78-85 and issued them all as Volume 2 of  The Federalist . Between June 14 and August 16, these eight remaining essays— Federalist  78-85—appeared in the  Independent Journal  and  New York Packet .

THE STATUS OF  THE FEDERALIST

One of the persistent questions concerning the status of  The Federalist  is this: is it a propaganda tract written to secure ratification of the  Constitution  and thus of no enduring relevance or is it the authoritative expositor of the meaning of the  Constitution  having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see  The Federalist  as incoherent; didn’t  Hamilton  and  Madison  disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to  Madison , there were occasions when the last part of an essay was being written as the first part was being typed.

• One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day.
• Moreover, because  Hamilton  and  Madison  parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with a certain haste, doesn’t mean that they were unreflective and not well written.  Federalist  10 , the most famous of all the essays, is actually the final draft of an essay that originated in  Madison ‘s  Vices  in 1787, matured at the  Constitutional Convention  in June 1787, and was refined in a letter to Jefferson in October 1787. All of  Jay ‘s essays focus on foreign policy, the heart of the Madisonian essays are  Federalist  37-51 on the great difficulty of founding, and  Hamilton  tends to focus on the institutional features of federalism and the separation of powers.

I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the  Constitution .  The Federalist  now acquired a “timeless” and higher purpose, a sort of icon status equal to the very  Constitution  that it was defending and interpreting. And we can see this switch in tone in  Federalist  37  when  Madison  invites his readers to contemplate the great difficulty of founding.  Federalist  38 , echoing  Federalist  1 , points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the  Constitution  as the work of “demigods,” and  The Federalist  “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in  The Federalist  that makes the essays attractive to readers of every generation.

AUTHORSHIP OF  THE FEDERALIST

A second question about  The Federalist  is how many essays did each person write? James Madison —at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York— John Jay , and  Alexander Hamilton —both of New York— wrote these essays under the pseudonym, “Publius.” So one answer to the question is that it doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the icon status of  The Federalist , there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that  Jay  wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between  Hamilton  and  Madison . Suffice it to note, that  Madison ‘s last contribution was  Federalist  63 , leaving  Hamilton  as the exclusive author of the nineteen Executive and Judiciary essays.  Madison  left New York in order to comply with the residence law in Virginia concerning eligibility for the  Virginia ratifying convention . There is also widespread agreement that  Madison  wrote the first 13 essays on the great difficulty of founding. There is still dispute over the authorship of  Federalist  50-58, but these have persuasively been resolved in favor of  Madison .

OUTLINE OF  THE FEDERALIST

A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves.  Federalist  1  outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak.

Martin Diamond was one of the earliest scholars to break  The Federalist  into its component parts. He identified Union as the subject matter of the first 36  Federalist  essays and Republicanism as the subject matter of the last 49 essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The fist three topics outlined in  Federalist  1  are:

• The utility of the union
• The insufficiency of the present confederation under the  Articles of Confederation
• The need for a government at least as energetic as the one proposed.

The opening paragraph of  Federalist  15  summarizes the previous 14 essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.’” So we can say with confidence that  Federalist  1-14 is devoted to the utility of the union. Similarly,  Federalist  23  opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed…is the point at the examination of the examination at which we are arrived.” Thus  Federalist  15-22 covered the second point dealing with union or federalism. Finally,  Federalist  37  makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first 36 essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism.

The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in  Federalist  1 : 4) the  Constitution  conforms to the  true principles of republicanism , 5) the analogy of the  Constitution  to state governments, and 6) the added benefits from adopting the  Constitution . Let’s work our way backward. In  Federalist  85 , we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for  Federalist  37-84, or virtually the entire Part II of  The Federalist .

I propose that we substitute the word  Constitutionalism  for  Republicanism  as the subject matter for essays 37-51, reserving the appellation  Republicanism  for essays 52-84. This substitution is similar to the “Merits of the  Constitution ” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in  Federalist  37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with  Federalist  52 .

Finally, to assist the reader in following the argument of  The Federalist , I have broken the argument down into seven major parts. This breakdown follows the open ended one provided in  Federalist  1 . This can be used in conjunction with the  Essay-by-Essay Summary  and the actual text of  The Federalist .

Note:  The text of  The Federalist  used on this site is from the edition reviewed by James Madison and published by Jacob Gideon in 1818. There may be slight variations in language from the essays as originally published.

State:  Virginia

Age at Convention:  36

Date of Birth:  March 16, 1751

Date of Death:  June 28, 1836

Schooling:  College of New Jersey (Princeton) 1771

Occupation:  Politician

Prior Political Experience:  Lower House of Virginia 1776, 1783-1786, Upper House of Virginia 1778, Virginia State Constitutional Convention 1776, Confederation Congress 1781- 1783, 1786-1788, Virginia House of Delegates 1784-1786, Annapolis Convention Signer 1786

Committee Assignments:  Third Committee of Representation, Committee of Slave Trade, Committee of Leftovers, Committee of Style

Convention Contributions:  Arrived May 25 and was present through the signing of the Constitution. He is best known for writing the Virginia Plan and defending the attempt to build a stronger central government. He kept copious notes of the proceedings of the Convention which were made available to the general public upon his death in 1836. William Pierce stated that “Mr. Madison is a character who has long been in public life; and what is very remarkable every Person seems to acknowledge his greatness. He blends together the profound politician, with the Scholar. … The affairs of the United States, he perhaps, has the most correct knowledge of, of any Man in the Union.”

New Government Participation:  Attended the ratification convention of Virginia and supported the ratification of the Constitution. He also coauthored the Federalist Papers. Served as Virginia’s U.S. Representative (1789-1797) where he drafted and debated the First Twelve Amendments to the Constitution; ten of which became the Bill of Rights; author of the Virginia Resolutions which argued that the Alien and Sedition Acts of 1798 were unconstitutional. Served as Secretary of State (1801-1809) Elected President of the United States of America (1809-1817).

Biography from the National Archives:  The oldest of 10 children and a scion of the planter aristocracy, Madison was born in 1751 at Port Conway, King George County, VA, while his mother was visiting her parents. In a few weeks she journeyed back with her newborn son to Montpelier estate, in Orange County, which became his lifelong home. He received his early education from his mother, from tutors, and at a private school. An excellent scholar though frail and sickly in his youth, in 1771 he graduated from the College of New Jersey (later Princeton), where he demonstrated special interest in government and the law. But, considering the ministry for a career, he stayed on for a year of postgraduate study in theology.

Back at Montpelier, still undecided on a profession, Madison soon embraced the patriot cause, and state and local politics absorbed much of his time. In 1775 he served on the Orange County committee of safety; the next year at the Virginia convention, which, besides advocating various Revolutionary steps, framed the Virginia constitution; in 1776-77 in the House of Delegates; and in 1778-80 in the Council of State. His ill health precluded any military service.

In 1780 Madison was chosen to represent Virginia in the Continental Congress (1780-83 and 1786-88). Although originally the youngest delegate, he played a major role in the deliberations of that body. Meantime, in the years 1784-86, he had again sat in the Virginia House of Delegates. He was a guiding force behind the Mount Vernon Conference (1785), attended the Annapolis Convention (1786), and was otherwise highly instrumental in the convening of the Constitutional Convention in 1787. He had also written extensively about deficiencies in the Articles of Confederation.

Madison was clearly the preeminent figure at the convention. Some of the delegates favored an authoritarian central government; others, retention of state sovereignty; and most occupied positions in the middle of the two extremes. Madison, who was rarely absent and whose Virginia Plan was in large part the basis of the Constitution, tirelessly advocated a strong government, though many of his proposals were rejected. Despite his poor speaking capabilities, he took the floor more than 150 times, third only after Gouverneur Morris and James Wilson. Madison was also a member of numerous committees, the most important of which were those on postponed matters and style. His journal of the convention is the best single record of the event. He also played a key part in guiding the Constitution through the Continental Congress.

Playing a lead in the ratification process in Virginia, too, Madison defended the document against such powerful opponents as Patrick Henry, George Mason, and Richard Henry Lee. In New York, where Madison was serving in the Continental Congress, he collaborated with Alexander Hamilton and John Jay in a series of essays that in 1787-88 appeared in the newspapers and were soon published in book form as The Federalist (1788). This set of essays is a classic of political theory and a lucid exposition of the republican principles that dominated the framing of the Constitution.

In the U.S. House of Representatives (1789-97), Madison helped frame and ensure passage of the Bill of Rights. He also assisted in organizing the executive department and creating a system of federal taxation. As leaders of the opposition to Hamilton’s policies, he and Jefferson founded the Democratic-Republican Party.

In 1794 Madison married a vivacious widow who was 16 years his junior, Dolley Payne Todd, who had a son; they were to raise no children of their own. Madison spent the period 1797-1801 in semiretirement, but in 1798 he wrote the Virginia Resolutions, which attacked the Alien and Sedition Acts. While he served as Secretary of State (1801-9), his wife often served as President Jefferson’s hostess.

In 1809 Madison succeeded Jefferson. Like the first three Presidents, Madison was enmeshed in the ramifications of European wars. Diplomacy had failed to prevent the seizure of U.S. ships, goods, and men on the high seas, and a depression wracked the country. Madison continued to apply diplomatic techniques and economic sanctions, eventually effective to some degree against France. But continued British interference with shipping, as well as other grievances, led to the War of 1812.

The war, for which the young nation was ill prepared, ended in stalemate in December 1814 when the inconclusive Treaty of Ghent which nearly restored prewar conditions, was signed. But, thanks mainly to Andrew Jackson’s spectacular victory at the Battle of New Orleans (Chalmette) in January 1815, most Americans believed they had won. Twice tested, independence had survived, and an ebullient nationalism marked Madison’s last years in office, during which period the Democratic-Republicans held virtually uncontested sway.

In retirement after his second term, Madison managed Montpelier but continued to be active in public affairs. He devoted long hours to editing his journal of the Constitutional Convention, which the government was to publish 4 years after his death. He served as co-chairman of the Virginia constitutional convention of 1829-30 and as rector of the University of Virginia during the period 1826-36. Writing newspaper articles defending the administration of Monroe, he also acted as his foreign policy adviser.

Madison spoke out, too, against the emerging sectional controversy that threatened the existence of the Union. Although a slaveholder all his life, he was active during his later years in the American Colonization Society, whose mission was the resettlement of slaves in Africa.

Madison died at the age of 85 in 1836, survived by his wife and stepson.

Age at Convention:  62

Date of Birth:  December 11,1725

Date of Death:  October 7, 1792

Schooling:  Personal tutors

Occupation:  Planter and Slave Holder, Lending and Investments, Real Estate Land Speculation, Public Security Investments, Land owner

Prior Political Experience:  Author of Virginia Bill of Rights, State Lower House of Virginia 1776-1780, 1786-1787, Virginia State Constitutional Convention 1776

Committee Assignments:  First Committee of Representation, Committee of Assumption of State Debts, Committee of Trade, Chairman Committee of Economy, Frugality, and Manufactures

Convention Contributions:  Arrived May 25 and was present through the signing of the Constitution, however he did not sign the Constitution. Initially Mason advocated a stronger central government but withdrew his support toward the end of the deliberations. He argued that the Constitution inadequately represented the interests of the people and the States and that the new government will “produce a monarchy, or a corrupt, tyrannical aristocracy.” William Pierce stated that “he is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in America.” He kept notes of the debates at the Convention.

New Government Participation:  He attended the ratification convention of Virginia where he opposed the ratification of the Constitution. Did not serve in the new Federal Government.

Biography from the National Archives:  In 1725 George Mason was born to George and Ann Thomson Mason. When the boy was 10 years old his father died, and young George’s upbringing was left in the care of his uncle, John Mercer. The future jurist’s education was profoundly shaped by the contents of his uncle’s 1500-volume library, one-third of which concerned the law.

Mason established himself as an important figure in his community. As owner of Gunston Hall he was one of the richest planters in Virginia. In 1750 he married Anne Eilbeck, and in 23 years of marriage they had five sons and four daughters. In 1752 he acquired an interest in the Ohio Company, an organization that speculated in western lands. When the crown revoked the company’s rights in 1773, Mason, the company’s treasurer, wrote his first major state paper, Extracts from the Virginia Charters, with Some Remarks upon Them.

During these years Mason also pursued his political interests. He was a justice of the Fairfax County court, and between 1754 and 1779 Mason was a trustee of the city of Alexandria. In 1759 he was elected to the Virginia House of Burgesses. When the Stamp Act of 1765 aroused outrage in the colonies, George Mason wrote an open letter explaining the colonists’ position to a committee of London merchants to enlist their support.

In 1774 Mason again was in the forefront of political events when he assisted in drawing up the Fairfax Resolves, a document that outlined the colonists’ constitutional grounds for their objections to the Boston Port Act. Virginia’s Declaration of Rights, framed by Mason in 1776, was widely copied in other colonies, served as a model for Jefferson in the first part of the Declaration of Independence, and was the basis for the federal Constitution’s Bill of Rights.

The years between 1776 and 1780 were filled with great legislative activity. The establishment of a government independent of Great Britain required the abilities of persons such as George Mason. He supported the disestablishment of the church and was active in the organization of military affairs, especially in the West. The influence of his early work, Extracts from the Virginia Charters, is seen in the 1783 peace treaty with Great Britain, which fixed the Anglo-American boundary at the Great Lakes instead of the Ohio River. After independence, Mason drew up the plan for Virginia’s cession of its western lands to the United States.

By the early 1780s, however, Mason grew disgusted with the conduct of public affairs and retired. He married his second wife, Sarah Brent, in 1780. In 1785 he attended the Mount Vernon meeting that was a prelude to the Annapolis convention of 1786, but, though appointed, he did not go to Annapolis.

At Philadelphia in 1787 Mason was one of the five most frequent speakers at the Constitutional Convention. He exerted great influence, but during the last two weeks of the convention he decided not to sign the document.

Mason’s refusal prompts some surprise, especially since his name is so closely linked with constitutionalism. He explained his reasons at length, citing the absence of a declaration of rights as his primary concern. He then discussed the provisions of the Constitution point by point, beginning with the House of Representatives. The House he criticized as not truly representative of the nation, the Senate as too powerful. He also claimed that the power of the federal judiciary would destroy the state judiciaries, render justice unattainable, and enable the rich to oppress and ruin the poor. These fears led Mason to conclude that the new government was destined to either become a monarchy or fall into the hands of a corrupt, oppressive aristocracy.

Two of Mason’s greatest concerns were incorporated into the Constitution. The Bill of Rights answered his primary objection, and the 11th amendment addressed his call for strictures on the judiciary.

Throughout his career Mason was guided by his belief in the rule of reason and in the centrality of the natural rights of man. He approached problems coolly, rationally, and impersonally. In recognition of his accomplishments and dedication to the principles of the Age of Reason, Mason has been called the American manifestation of the Enlightenment. Mason died on October 7, 1792, and was buried on the grounds of Gunston Hall.

State:  New York (Born in British West Indies, immigrated 1772)

Age at Convention:  30

Date of Birth:  January 11, 1757

Date of Death:  July 12, 1804

Schooling:  Attended Kings College (Columbia)

Occupation:  Lawyer, Public Security Interests, Real Estate, Land Speculation, Soldier

Prior Political Experience:  Confederation Congress 1782-1783, Represented New York at Annapolis Convention 1786, Lower State Legislature of New York 1787

Committee Assignments:  Committee of Rules, Committee of Style

Convention Contributions:  Arrived May 25, departed June 30, and except for one day, August 13, he was absent until September 6. Upon his return he remained present through the signing of the Constitution. His most important contribution was the introduction and defense of the Hamilton plan on June 18, 1787, that argued neither the Virginia Plan nor the New Jersey Plan were adequate to the task at hand. William Pierce stated that “there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.”

New Government Participation:  Attended the New York ratifying convention and supported the ratification of the Constitution. President Washington nominated and the Senate confirmed Hamilton as the Secretary of the Treasury (1789 – 1796). He was the principle author of the Federalist Papers.

Biography from the National Archives:  Hamilton was born in 1757 on the island of Nevis, in the Leeward group, British West Indies. He was the illegitimate son of a common-law marriage between a poor itinerant Scottish merchant of aristocratic descent and an English-French Huguenot mother who was a planter’s daughter. In 1766, after the father had moved his family elsewhere in the Leewards to St. Croix in the Danish (now United States) Virgin Islands, he returned to St. Kitts while his wife and two sons remained on St. Croix.

The mother, who opened a small store to make ends meet, and a Presbyterian clergyman provided Hamilton with a basic education, and he learned to speak fluent French. About the time of his mother’s death in 1768, he became an apprentice clerk at Christiansted in a mercantile establishment, whose proprietor became one of his benefactors. Recognizing his ambition and superior intelligence, they raised a fund for his education.

In 1772, bearing letters of introduction, Hamilton traveled to New York City. Patrons he met there arranged for him to attend Barber’s Academy at Elizabethtown (present Elizabeth), NJ. During this time, he met and stayed for a while at the home of William Livingston, who would one day be a fellow signer of the Constitution. Late the next year, 1773, Hamilton entered King’s College (later Columbia College and University) in New York City, but the Revolution interrupted his studies.

Although not yet 20 years of age, in 1774-75 Hamilton wrote several widely read pro-Whig pamphlets. Right after the war broke out, he accepted an artillery captaincy and fought in the principal campaigns of 1776-77. In the latter year, winning the rank of lieutenant colonel, he joined the staff of General Washington as secretary and aide-de-camp and soon became his close confidant as well.

In 1780 Hamilton wed New Yorker Elizabeth Schuyler, whose family was rich and politically powerful; they were to have eight children. In 1781, after some disagreements with Washington, he took a command position under Lafayette in the Yorktown, VA, campaign (1781). He resigned his commission that November.

Hamilton then read law at Albany and quickly entered practice, but public service soon attracted him. He was elected to the Continental Congress in 1782-83. In the latter year, he established a law office in New York City. Because of his interest in strengthening the central government, he represented his state at the Annapolis Convention in 1786, where he urged the calling of the Constitutional Convention.

In 1787 Hamilton served in the legislature, which appointed him as a delegate to the convention. He played a surprisingly small part in the debates, apparently because he was frequently absent on legal business, his extreme nationalism put him at odds with most of the delegates, and he was frustrated by the conservative views of his two fellow delegates from New York. He did, however, sit on the Committee of Style, and he was the only one of the three delegates from his state who signed the finished document. Hamilton’s part in New York’s ratification the next year was substantial, though he felt the Constitution was deficient in many respects. Against determined opposition, he waged a strenuous and successful campaign, including collaboration with John Jay and James Madison in writing The Federalist. In 1787 Hamilton was again elected to the Continental Congress.

When the new government got under way in 1789, Hamilton won the position of Secretary of the Treasury. He began at once to place the nation’s disorganized finances on a sound footing. In a series of reports (1790-91), he presented a program not only to stabilize national finances but also to shape the future of the country as a powerful, industrial nation. He proposed establishment of a national bank, funding of the national debt, assumption of state war debts, and the encouragement of manufacturing.

Hamilton’s policies soon brought him into conflict with Jefferson and Madison. Their disputes with him over his pro-business economic program, sympathies for Great Britain, disdain for the common man, and opposition to the principles and excesses of the French revolution contributed to the formation of the first U.S. party system. It pitted Hamilton and the Federalists against Jefferson and Madison and the Democratic-Republicans.

During most of the Washington administration, Hamilton’s views usually prevailed with the President, especially after 1793 when Jefferson left the government. In 1795 family and financial needs forced Hamilton to resign from the Treasury Department and resume his law practice in New York City. Except for a stint as inspector-general of the Army (1798-1800) during the undeclared war with France, he never again held public office.

While gaining stature in the law, Hamilton continued to exert a powerful impact on New York and national politics. Always an opponent of fellow-Federalist John Adams, he sought to prevent his election to the presidency in 1796. When that failed, he continued to use his influence secretly within Adams’ cabinet. The bitterness between the two men became public knowledge in 1800 when Hamilton denounced Adams in a letter that was published through the efforts of the Democratic-Republicans.

In 1802 Hamilton and his family moved into The Grange, a country home he had built in a rural part of Manhattan not far north of New York City. But the expenses involved and investments in northern land speculations seriously strained his finances.

Meanwhile, when Jefferson and Aaron Burr tied in Presidential electoral votes in 1800, Hamilton threw valuable support to Jefferson. In 1804, when Burr sought the governorship of New York, Hamilton again managed to defeat him. That same year, Burr, taking offense at remarks he believed to have originated with Hamilton, challenged him to a duel, which took place at present Weehawken, NJ, on July 11. Mortally wounded, Hamilton died the next day. He was in his late forties at death. He was buried in Trinity Churchyard in New York City.

State:  New York

Age at Ratifying Convention:  42

Affiliation:  Federalist

Nom de Plume:  Publius (with Madison and Hamilton)

Vote at Ratifying Convention:  Yea

Date of Birth:  December 12, 1745

Date of Death:  May 17, 1829

Schooling:  King’s College (Columbia)

Occupation:  Attorney, Judge

Prior Political Experience:  Delegate to the First Continental Congress, 1774; Delegate to the Second Continental Congress; New York Provincial Congress; Chief Justice of the New York Supreme Court, 1777-1778; United States Secretary of Foreign Affairs, 1784-1790

Other Political Activities:  Chief Justice of the United States Supreme Court, 1790-1795; Governor of New York, 1795-1800

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The first amendment, we the people, james madison, ratification, and the federalist papers.

September 16, 2021

September 17 is Constitution Day—the anniversary of the framers signing the Constitution in 1787. This week’s episode dives into what happened after the Constitution was signed—when it had to be approved by “we the people,” a process known as ratification—and the arguments made on behalf of the Constitution. A major collection of those arguments came in the form of a series of essays, today often referred to as The Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay using the pen name Publius and published initially in newspapers in New York. Guests Judge Gregory Maggs, author of the article “A Concise Guide to The Federalist Papers as a Source of the Original Meaning of the United States Constitution,” and Colleen Sheehan, professor and co-editor of The Cambridge Companion to The Federalist, shed light on the questions: What do The Federalist Papers say? What did their writers set out to achieve by writing them? How do they explain the ideas behind the Constitution’s structure and design—and where did those ideas come from? And why is it important to read The Federalist Papers today?

FULL PODCAST

This episode was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Sam Desai, John Guerra, and Lana Ulrich.

PARTICIPANTS

Colleen Sheehan is the Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. She is author of numerous books, including several on James Madison, and she co-edited The Cambridge Companion to The Federalist .

Judge Gregory E. Maggs is a judge on the U.S. Court of Appeals for the Armed Forces. He was a member of the full-time faculty at GW Law School from 1993 to 2018. He is the author of numerous works including the article “A Concise Guide to The Federalist Papers as a Source of the Original Meaning of the United States Constitution.”

Jeffrey Rosen   is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of  The Atlantic .

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Questions or comments about the show? Email us at [email protected] .

Continue today’s conversation on Facebook and Twitter using  @ConstitutionCtr .

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Please subscribe to  We the People   and  L ive at the National Constitution Center   on Apple Podcasts ,  Stitcher , or your favorite podcast app.

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

 [00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. September 17th is Constitution Day, the anniversary of the framers signing of the constitution in 1787.

This week, we dive into the philosophy of the Federalist Papers written by Madison, Hamilton, and John Jay to support the ratification of the constitution after it was signed. I'm so excited to be joined by two of America's leading experts on the Federalist Papers. Colleen Sheehan is director of graduate studies at the Arizona State School of Civic and Economic Thought and Leadership. She's the author of many books, including several on James Madison, and she co-edited The Cambridge Companion to The Federalist. Colleen, it is wonderful to have you back on the show.

[00:01:05] Colleen Sheehan: Always happy to be here with you, Jeff.

[00:01:07] Jeffrey Rosen: And Judge Gregory Maggs is a judge on the US court of appeals for the armed forces. He was my colleague as a member of the full-time faculty of GW Law School from 1993 to 2018, still teaches. And he's the author of many works including the article, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution. Greg, thank you so much for joining.

[00:01:34] Gregory Maggs: I'm delighted to be here. Thank you for inviting me.

[00:01:36] Jeffrey Rosen: Colleen, in your wonderful essay in the Cambridge Companion to the Federalist Papers, you write that the Federalist Papers can be traced back to Aristotle and the declaration of independence. And for Madison and Jefferson, you write, the freedom of the mind is the basis of all other liberties and rights. Each person has the right and responsibility to exercise freedom in a manner that accords with reason and manages to govern passions. And therefore, you say the rightful exercise of majority rule as described by the Federalist Papers is the accomplishment of the cool and deliberate sense of the community or the reason of the public. Tell us, distill the essence of the Federalist Papers and its classical antithesis between reason and passion.

[00:02:28] Colleen Sheehan: Well, that's a small question to start with. Thank you, Jeff. [laughs]

[00:02:32] Jeffrey Rosen: That, that's why I ask it.

[00:02:33] Colleen Sheehan: ... So the reason it goes back to Aristotle is because Aristotle comprehensively looked at the problems of politics, and the problems of politics have to do with human nature, that we don't always get along with each other, and that if we're gonna live in some kind of community so that there could be something more than just mere survival, but possibly more than safety, possibly freedom, even possibly happiness or the pursuit of happiness, then we have to find ways to live together. We have to do the kind of things that lawyers wanna do, make laws. But of course, not all laws are good laws not all laws are just.

And as Publius says in Federalist 51, justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained or until liberty will be lost in its pursuit. And that's the challenge. How do we live together in such a way that we treat each other decently, fairly, justly? Well, if we want to have free government, government based on consent of the governed, on what we might call popular government or democratic republicanism, then the majority is going to rule. But of course, the age old problem is that a majority can be just as unjust as one individual. And when they have, when you have power in your hands, it's likely to be abused.

So the challenge Publius sets out for himself if we wanna speak of him, the three of them as one person, because they all signed the, the Federalist Papers under one name, Publius then we have to see that their challenge is they're, they're dedicated to the people ruling, government by the people, but it has to be also government for the people that is for all the people for the common good. So that's the challenge Publius sets for himself. And in other words, what we have to do is find a way for the majority to rule not on the basis of mere interest, self-interest, not on the basis of mere passion and prejudice, but on the basis of justice and the general good that is reasoning the, the thing that human beings have that the other animals don't have, that we can reason together to come to understand not simply what this abstract idea of justice is, because justice is really about it's, it's the social virtue. It's how we treat one another.

The American Republic that Publius is trying to describe as they've thought about it and framed at the Constitutional Convention in that long, hot summer of 1787 in Independence Hall was really about one thing, how can the people govern themselves, genuinely govern themselves? That is in such a way that they treat one another well. That's the American experiment.

[00:05:44] Jeffrey Rosen: Beautiful [inaudible 00:05:51]. And thank you so much for that. Greg, why should we care about the Federalist Papers as a legal source? In your important article in the Boston University Law Review, The Federalist Papers as a Source of the Original Meaning of the United States Constitution, you respond to the familiar arguments about why the Federalist Papers are not a good source of original meaning, including the idea that delegates to the state ratifying conventions didn't read many of them, they're often self-contradictory and so forth. You run through the objections and you refute them. Tell us why the Federalist Papers are a reliable guide to be original meaning of the constitution according to several different definitions of original meaning and original understanding.

[00:06:35] Gregory Maggs: Well, first of all, I, I don't think I refute the counter-arguments. There are arguments against it. I, I, I merely point out that it's sort of a mixed bag, that the Federalist Papers are a very important source of the original meaning of the constitution, but they are certainly not a perfect source and they are subject to many, very valid obje- claims made based on them are subject to many, very valid objections. However these objections also have counter-arguments which sort of mix the picture together.

You know, I think building on what Professor Sheehan said the Federalist Papers is a rich source of political philosophy. And I think one of the genius aspects of this was that the framer that the Madison and Hamilton and just sponsors and Jay, they had one mission, which was to convince the people of New York to ratify the constitution. And in order to do that, they had to take certain practical steps. They had to explain why the Articles of Confederation were problematic. They had to explain why we needed an important strong union. They had to explain the structure of the government, that it wasn't going to be a national government, it wasn't gonna be a federation. It was gonna be a federal system.

They had to also describe the Senate, describe the house, describe the judiciary and so forth. And at the same time, they included all the kinds of very important philosophical and political science arguments that Professor Sheehan remarked, so sort of ingenious meshing together of the two things. Well, in the process of doing this, they describe nearly every aspect of the constitution. And so if you're interested in knowing something about the original meaning of the constitution a source that is perhaps the most frequently cited source is the Federalist Papers because nearly everything that we talk about today has something said about it in the Federalist Papers.

Now, I should point out though it is not necessarily a perfect source. So for example, many people cite the Federalist Papers as a source of evidence of the original understanding of the constitution. That is to say, well, what did the people who ratified the constitution at the various state ratifying conventions, what did they think it meant? And I think a strong counterargument is most of them didn't read the Federalist Papers. In fact, half of the Federalist Papers weren't written until over half of the states had already ratified it. And one of the most cited papers paper number 78, it wasn't written until after eight of the states had already ratified the constitution.

But, you know, I think a counterargument to that is that it is a repository of the arguments that supporters of the constitution were making. And we know that the supporters won the day and something must have persuaded the ratifiers to adopt the constitution, and it was probably something similar to the arguments that were in the Federalist Papers. In other words, even if people didn't directly read the Federalist Papers, the Federalist Papers is a repository of the kinds of arguments that strong supporters of the constitution were making. And of course, ultimately the constitution was ratified.

[00:09:33] Jeffrey Rosen: Colleen, you have honored the NCC by joining a really exciting project called The Founders Library. We're putting online the sources that inspired the founders, and having the pleasure of learning from you about what Madison read before the convention and while writing the Federalist Papers, and how that influenced his distinctive understanding of faction as the triumph of, of, of passion over reason, of self interest over devotion to public good. We were brainstorming this now, but give we the people listeners a sense of some of the main books that Madison read before and during and after the convention that influenced the Federalist Papers.

[00:10:14] Colleen Sheehan: Sure. Before, before I talk about that, Jeff, let me just follow up on the, the last question momentarily. Jefferson said about the Federalist Papers that they're the best commentary on the principles of government that were ever written. And so I agree with Judge Maggs that you have to look deeper than just one argument here or there in terms of what people at the ratifying conventions were talking about and whether or not they'd read the Federalist Papers or any one particular one was published yet, because what Hamilton, Madison and Jay, mostly Hamilton and Madison did was they understood the principles that they were, that, that they at the federal convention were trying to implement into this document.

You know, it's not just words on paper. Those words are there for a purpose, are meant to accomplish something. And the Federalist Papers has a depth of commentary that's more than just describing article one, article two, article three. It's telling us what they are trying to accomplish and how the founders went about that. And I don't know a better commentary than the Federalist Papers that does that in terms of the purpose and design, the argument and action of the United States constitution. So what did Madison read? Madison read most everything. He, he, he didn't read every book in Jefferson's library, but he was constantly borrowing books from Jefferson's library whenever they lived in the same city.

For example, in Philadelphia when the, when the new government was just started Jefferson as was, was [inaudible 00:12:16] had to remodel his rental, rental property. And he built a whole library in it. And Madison was constantly borrowing books from him, in addition to the hundreds of books Madison had packed and taken with him. Imagine that, how, how long it took to get from Montpelier to Phi- Philadelphia. And what you take with you mostly is your books. I mean, that's Madison. He had a rented room in Mrs. Houses boarding house, because he's a bachelor. He's there in this boarding house with all these other folks. And, and basically his room is just full of books.

Madison was the scholar scholar of all the founders. John Adams wanted to be, but I think it's Madison who truly was. He read Aristotle, Plato, Xenophon, Thucydides for, for as examples of the classics, Cicero. He read, oh, he really studied Montesquieu. Of course, Locke, Hufendor, Sydney. The list goes on and on. They all read Hobbes and didn't like him that, that... and, and, and Madison comments on, on Rousseau once, and in not very kind terms. He didn't care much for Rousseau. So Madison's idea of how the majority rules is not the Rousseau in general will. He thought about all these things and he agreed with some people about some things and, and disagreed about other things, but he also had this independence thought, this spark of brilliance, and which he's the one, I believe, and I'd love to hear what Judge Maggs says Madison thinks that what he's discovered is a way to make popular government good government.

In other words, they talked about liberty hangs in the balance. The eyes of the world are upon us. We are engaged in the great experiment of self-government. And what that means is can a people govern themselves in a way that truly respects one another? And it's not just majority faction injustice and oppression. Madison thinks that he's found a way to do that, and has to do as you know, Jeff with this idea of an extensive territory and a larger number of population. And so the faction can counteract faction.

But it's more than just that negative faction counteracting faction. That's a big part of it, but there's a reason you want factions to be thwarted. It's so that the ma- there's time for the majority to refine and enlarge its views, to refine and enlarge the public views so that justice will reign rather than injustice. That's the goal of that Publius sets for himself in the Federalist Papers to show that Republican government can really work. And that when the eyes of the world are upon America, we're going to show the world as Robert Frost once put it not just how things work, but how democracy is meant.

[00:15:12] Jeffrey Rosen: Thank you so much for that. Greg, do you agree with Colleen's statement that Madison discovered for the first time in the history of the world a way of making popular government by good governments, and the way that he did that was by floating factions to give majorities time to refine and enlarge the public views of the justice and reason could prevail? And then after you tell us whether you, you agree with that, or wanna amplify on it, maybe introduce us to the idea of how Madison achieved that goal.

[00:15:43] Gregory Maggs: Well, you know there, there are probably s- I, I do agree with it, and I think there are probably several examples that could be given. But I think perhaps the best one concerns the idea of federalism. And Madison's idea or at least explanation of the idea that having two governments rather than one preserves individual liberty. It's been a very influential idea an idea that Justice Kennedy cited in various ways. And it seems counterintuitive when you first hear about it, that well, all of a sudden, there's gonna be two governments regulating. But when you realize that certain things will be left to the national government and others will be left to the states you realize that this has a tendency to break apart factions but to still allow local interests to be governed.

And, you know, we really didn't have a federal system of the kind that was developed in the world before this. And certainly, there wasn't a political science experiment or explication of this system until the Madison described what the different theory would be. In addition, there were of course, many debates about whether you could have a Republican government in a large country as opposed to say a small city state, and Madison of course, came up with the idea that well, actually, it's gonna work better in a large territory, because it'll have the the benefit of breaking apart factions. We'll have delegates who have to represent many people, and it will be difficult for factions to control in such an area.

I mean, again, I think this was original thought. This was, this was not something that had been tried and done before. And certainly the theory behind it hadn't been explained. Now, whether Madison completely invented it, or whether it's a joint product of all the people at the convention you know, I think that's a fair subject of, of debate. I don't think Madison claimed to be the sole inventor but I think he was one of the original explainers of the system and perhaps the best advocate for the system.

You know, just and I mentioned in my article that courts often cite the Federalist Papers, and there seem to be two sort of strands of citations at the Supreme Court. Some justices like Justice Scalia and Justice Thomas look at it for details. You know, when they use the word commerce, do they just mean trade or do they mean something broader? And then there are others like Justice Kennedy, who's obviously now retired but he looked at it for the big principles. He looked at it for questions of state sovereignty, of of federalism, of what was the overall picture of what they were trying to accomplish. And I think that's probably most in line with the kinds of things that Madison was trying to get at in his essays.

[00:18:20] Jeffrey Rosen: Thank you so much for that. Colleen, Greg mentions Madison's refinement of Montesquieu's view that a Republic is only possible in a small territory. You've written a wonderful article, Madison and the French Enlightenment. The Authority of Public Opinion, where you describe the influence of his thought on thinkers, including one you've recently called my attention to [foreign language 00:19:39]. So we'd love you to help us understand what Madison was reading that influenced his view of public opinion and how that affected his refinement of Montesquieu, and whether or not that was original Madison or not.

[00:19:01] Colleen Sheehan: Yeah. So, so Jefferson is in Paris as minister to France, right, in the late 1780s. And he's there. Well, Madison is with everyone else at the Philadelphia convention framing the constitution, and Jefferson will come back after the formation of the new government under President Washington. So during that time, Jefferson is sending cargo box, boxes full of books to Madison. And Madison is not just reading, but as Hamilton might have said, imbibing that French philosophy, the, the, that Jefferson and Madison have drunk too deeply from the well of French philosophy, Hamilton once said. And Madison was doing that and he wasn't agreeing with all of it, but there was a whole group of French thinkers, especially in the 1770s, 1780s, who were developing this new theory called a theory of public opinion, the opinion publique, that public opinion is queen of the world, because there's actually this new phenomenon called the public.

Why? What makes this different in the, in the, in the history of all the world? It has to do with communication, not just the commerce of goods, but the commerce of ideas, that you can spread ideas more than just from in one assembly in ancient Greece, for example, or just one salon in Paris. But through the printed word, you can get these ideas out to a much broader audience, a much broader public that can then communicate and have an influence on the center of government. And so the, the kings and queens of France had to watch out because there was a new power in the world, and it was predicted that it would be more powerful than anything else, and it's called public opinion. And it paved the way for what Tocqueville would later talk about in terms of public opinion when by then, by the late 1820s and 1830s, it's clear that public opinion is queen of the world, and that equality is a well-known irresistible principle of modern times.

And so Madison is reading all of this, and it's, he said, Montesquieu has a glimp- had a glimpse of it, but he lived a little too early and he really didn't quite understand the ramifications of it, that more than just the institutional arrangements of government checks and balances separation of powers, all those things are important, but there's something even more important going on here, and it has to do with not just stifling unjust opinion, but actually building, educating, shaping, forming the public into one that is not only clean of the world, but deserves to be queen of the world, capable, a people.

Think of that, a people coming into their own, a people capable of governing themselves. And this had never been possible in the history of the world before. This is partly why it's so new and why Madison is so excited about the discovery, how these things can work together, because you couldn't have government by the people over a large territory before this ability to communicate through the printed word because all large governments were considered empires, and empires, as Montesquieu said, tend to be despotic. But communication, the commerce of ideas changes the face of politics, the potential for, for popular government actually being successful in the modern world.

[00:23:01] Jeffrey Rosen: Thank you so much for that. I'm just reading your article on Rousseau now, and it's so exciting to see the connection between Rousseau's conclusion, public opinion has its source in the opinion of enlightened men, where we're in some gains partisans and becomes the general conviction. And Madison's conclusions, as you say, in his national gazette essays in 1791 that enlightened journalists and literati would communicate with the public through essays like the Federalist Papers and, and other 18th century version of long Atlantic articles, and would refine public opinion so it's guided by reason rather than passion.

Greg as, as you hear Madison's theory of public opinion as, as Colleen has helped us understand it w- w- wa- was it vindicated first of all in, in Madison's era by the thoughtful debates over ramification, where people actually did read the Federalist Papers and were guide and, and were able to engage complicated arguments? And, and does it seem too optimistic today in the age of Twitter?

[00:24:03] Gregory Maggs: Well, you know it's interesting if you if you look at the commentary on the Federalist Papers at the time they were written it was very mixed. They were recognized as being very scholarly. They the Supreme Court cited them and, and Chief Justice Marshall said that there's no greater explanation of our government than you'll find there by no greater minds. And, and yet when you look at other commentary there were people who said, well, they're kind of hard to get through. They're kind of boring. They're kind of long. I really doubt anybody has been able to read and digest all of them. Some said, for educated people, they don't really add that much, and for uneducated they're just too difficult to read.

So, you know, I again I, I think it's somewhat of a mixed picture. Certainly, their views did carry a lot of weight. We, we, we created the government according to the structure that they had adopted that they had proposed when we had the debates in Congress and the first cons- in the first Congress they passed, I don't know, about 80 or 90 laws in which they set up the structure of government, and they were all influenced by these ideas that were expressed in the Federalist Papers. Whether they actually read the Federalist papers or not they were certainly influenced by those kinds of thinking.

So, you know, whether everybody was able to read the printed word and, and learn about these ideas and the possibility of communication, we don't know. Interesting one scholar wrote a very interesting paper called Publius in the Provinces, and look to see where the Federalist Papers actually penetrated. And about half the states, none of the essays were ever reprinted. And maybe some of them were mailed there. We know that Madison and Hamilton took copies of the Federalists and mailed them to Virginia and elsewhere, but communication was still very difficult at the time. One estimate is that the newspapers that published the Federalist Papers only could print about 600 copies, 'cause that's, that's, it was a daily paper. And and the daily paper just physically could print 600 copies. And that's not a lot of copies.

Now, they floated around they floated around taverns and other places where people could read them. I think people who were interested could find them. Whether there was the penetration that would be ideal I don't think there was. I mean, I again, I think it's not so much the Federalist Papers were actually read by a large number of people and influence them as opposed to just the idea that they are repository of the kinds of arguments that were circulating, and that ultimately did pers- turn out to be persuasive.

[00:26:38] Jeffrey Rosen: Colleen, the greatest challenge to Madison's definition of both faction as any group of majority or a minority animated by passion rather than reason devoted to self-interest rather than the public good w- was the rise of political parties. And of course, Madison played a central role in the rise of the, the first party, the, the Republican Democratic Party. And yet, Madison had a philosophical defense of the rise of parties that he managed to reconcile with his views about public opinion and the refining powers of reason. Tell us how Madison justified the rise of political parties that seem to clash with this definition of faction.

[00:27:16] Colleen Sheehan: Ah, that's a great question. I ha- I have to say when, when Judge Maggs was talking about some, sometimes some people thought that the Federalist Papers are a little hard to get through, a little boring. I had to laugh to myself. We've heard that in the classroom from our students once or twice, haven't we, [laughs] when we teach the Federalists. But hopefully is that they get into the text. It's a little bit like Shakespeare. It seems foreign at first, but when you see there's actually a story there about a people, and let it, let the texts come alive, because I think the Federalist Papers are a vision for America, not just about the nuts and bolts of government. That's one thing, but the nuts and bolts are there to make them, to make this machine in this country full of this dynamic people to set forth the environment that allows us to live a certain kind of life, an ethos, to be a certain kind of people.

So I, I try to, try to get the students to see that there's more there than some 18th century tough language, but I admit it's a challenge. So, so all factions are parties. They're a part, not a whole. But not all parties are factions. That is a faction by definition whether a majority or minority is adverse to the rights of others or to the permanent and aggregate interest of the community. So faction is unjust or contrary to the common good by definition.

When Madison, who is one of the founders, he and Jefferson, the founders of the first Republican Party in the United States, the Federalist Party really becomes a party in the 1790s with the rise of the Republican Party. The Republican Party makes these federalists into a party, I would say. It's the Republicans who, who it's Jefferson and Madison, right, actually think it's led by Madison in the beginning more than Jefferson. In, in the spring of 1792, Madison is talking about the Republican cause, and he finally says, okay, it's the Republican Party we're talking about. It has to be an organized opposition to what he sees as the Hamiltonian plan of government that is focused on the money men in New York city. And he says, Hamilton is trying to interpret this constitution in the way he sees fit whereas what we have to do like it or not is understand those who ratified it and abide by that fundamental opinion of the American people as they understood this document.

In other words, Madison is taking seriously from day one that who... he asks the question, who are the best keepers of the people's liberties? And his answer is the people themselves. They are not just to have confidence in their rulers, submit and obey, which he thought some of the federalists believed was the, their understanding of representative government. Madison said, no, the people have to actually be their own governors. They have to be a part. They have to participate. They have to be attached to this government, which is of their own making. And then those laws that are made, they obey.

And so it really had to do the difference between the re- this newly established Republican Party and the federalist opposition had to do with what is the role of the people themselves as Larry Kramer put it in a wonderful article, the people themselves, what is the role of the people themselves in this new republic? Is it a ghostly body politic where we talk about popular sovereignty, but in the end, it's really a few elites ruling? Well, some of the federalists thought that was really the best way to go. I mean, Reed Fisher Ames, his speech at the Massachusetts ratifying convention, and he, you know, your people, sir, your people, sir, can be a great beast. We need we need a sober second thought. We've gotta be so careful of thi- this thing we call the people.

So there was a lot of skepticism about the people. Madison had his own skepticism, and he's not in favor of fleeting passions and interests ruling in the form of factions. That's why this whole processes of what we might call deliberative republicanism, where the space and time that he sees built into the American constitutional system is there for a reason. It's there... How do we refine and enlarge the public views? Well, in newspapers, as you said, Jeff, newspapers circulate laying among the great body of the people.

And look at the newspapers that are developing in the early 1790s in all the, the major cities across the 13 states. It's between the representatives and the people going back and forth to Congress. It's within Congress within the house itself, within the Senate, between the house and Senate, between the Congress and the presidency, between the presidency and the people. So this is great amount of communication that is happening over a period of time, because it takes a while to build a coalition of the majority. And during that time, people are talking, communicating. It's a kind of Socratic method at the civic level of weeding out the the unjust and erroneous notions to build a consensus among the majority that is a more just and refined notion of the public good.

[00:33:10] Jeffrey Rosen: Thank you so much for that. Greg, what is your reaction to Madison's defense of the rise of political parties? Is it persuasively consistent with the broader philosophy that he articulated in the Federalist, or was it a self-interested effort to justify the party that he was increasingly to have?

[00:33:35] Gregory Maggs: Well, you know, I, it's tempting to say, well, it looks like Madison was hypocritical or inconsistent. He opposed factions, and then he was part of a, a, a political party. But I think, I think in fairness if you look at Federalist 10 Madison recognized that there's always going to be different political interests. There are always gonna be fractions. So for example, he said, people who own property are gonna have different interests from people who don't own property, and that's always going to be the case. And really what he was talking about was, or what his goal was, was to create a system that would weaken the power of faction. Sort of behind the veil without knowing what was going to happen, he said, you know, if we have a federal system, if we have a republic where we have representatives who have to represent large numbers of people if we have the different components of government elected at different times all of these things will weaken faction and address their bad effects.

I don't think he had any illusion that there were going to be factions or groups with different interests. But from behind the veil without knowing whether his side was gonna be the majority or some other side was gonna be the majority, he was thinking of a system that would counteract the pernicious effects of faction. Now to say that after that system got going, he got involved in a political party is not really to say that he's hypocritical. And in fact, if he had been nefarious, he would have designed a system that would have favored his interests but I don't think that he did that. I, I think he did the opposite, which was to try to create a system that would further democracy, not direct democracy, but representative democracy, which would have the have counteracting effects on faction.

So I don't, I don't view him as being inconsistent or hypocritical. In fact on the contrary, he created a system behind the veil of not knowing what was gonna happen in the future that he thought would be best for the country by weakening fraction. And even if he later got involved in a faction, he was subject to those rules that the constituency would be divided. It would be represented by large numbers of people and so forth.

[00:35:41] Jeffrey Rosen: Thanks so much for that. Colleen, are you persuaded?

[00:35:44] Colleen Sheehan: Well, I don't think I answered the question you asked me very well. So let me give another shot at that. Madison deliberately establishes the Republican Party in the United States in 1792, and Jefferson as his cohort in this. And he writes a couple of articles about this and explains himself. One is called Parties, and one is called A Candid State of Parties. And he sees the opposition, the Federalist Party as the anti-Republican party.

By this point in 1792, he's so frustrated with the Hamiltonian federalists thrust of, of government that he feels it's necessary to organize this Republican Party not, it's not in the contemporary sense of just organization to be a part to win elections. Madison sees it as putting the country on the right track on the Republican smaller Republican tract, where we're not ignoring the people out in the countryside and just letting the stop jobbers in New York control things or these enlightened statesmen, or people who think they're enlightened statesmen at the seat of government. That for this kind of Republican government to work the way he's envisioned it, requires a genuine attention by the people and participation and governing by the people, not just when you vote, not just at election time, but to be real citizens, not like the ancient Greeks, where that's all you do with your life is go to the assembly every day but to have a real meaningful part in this thing called self-government.

And so for Madison, the Republican Party he's founding is not a faction. It's the opposite. It's meant to promote republicanism against what he sees as a tendency towards anti-republicanism in the early days of the Republic to set America on a course in which we could actually... You know, they were so afraid when Washington was in office that this would fail and that we can't do it without Washington. We were not ready to walk alone, as Jefferson put it. Washington had to stay a second term because the country wasn't ready to walk alone. And it's during this period that Madison and Jefferson are founding the Republican Party to bring the Republican cause into the workings of government. And so for them, it's, it's the culmination of the founding it republicanism so that it's not factions that will rule, but a just majority that will rule.

[00:38:36] Jeffrey Rosen: Thank you very much for that. Greg I wanna put on the table the main ideas of the Federalist Papers, and there are different ways to organize them. Do you have any particular papers? We've talked about of course 10 and, and 1. And, and are there any particular ones or groups of papers that you want with the people listeners to read and learn about?

[00:39:01] Gregory Maggs: Well you, you know, I, I think it's hard to single out any. I mean, it'd be like if you gave me the Bible and said w- which books are important and which ones are not, it would be hard to, to pick one or another, but you know, what I've always found to be very interesting are the initial essays where they describe the weaknesses of the articles of the government under the Articles of Confederation and the need for a stronger union. These these are not as philosophically deep as some of the other ones. And yet, when you do read them you recognize what they were trying to accomplish was to make the system better.

And I think without fully understanding some of the weaknesses of the the Articles of Confederation and also the article, the the the ones that were comparing the government to state governments that already existed. I think it's hard to understand, you know, what, what were they specifically trying to do.

One of the things that's very interesting is that nearly every provision in the Articles of Confederation has a corelative provision in the constitution often exchanged but you can sort of map the Articles of Confederation to the constitution. There are provisions in the constitution that are nowhere found in the Articles of Confederation. But you can look very carefully at these different provisions, because they weren't starting from scratch. They were, they had a system and they were trying to persuade people to change the system. The system had flaws, but they had to identify those flaws. And I think that in many ways although they're somewhat overlooked these are some of the most important ones.

And let me just give you some of the numbers. 15 to 22 are really the ones that mostly talk about the difficulties with the Articles of Confederation. And I think it, it's kind of the background that you need to to understand why they were undertaking this project. Now, this doesn't necessarily tell you what they were trying to accomplish but it does give you the background. So I, I think 15 to 22 are a very good place to start to get an idea of why they were trying to create a new constitution. It wasn't that we didn't have a government, it was that we wanted a better one.

[00:41:08] Jeffrey Rosen: Thank you very much for that. Colleen, in your introduction with Jack Rikove to the Cambridge Companion to the Federalist, you know, two ways of organizing the Federalists, one flags the division that, that Greg just did focusing on half A, the essays concerned with making the case for the national government and, and half B, the essays focused on the exposition of the constitution itself. And then you say another approach focuses on the broader political thought and vision of each of the authors including Madison's emphasis on republican government and Hamils- Hamilton's interests in state building like commerce and foreign affairs and so forth.

So maybe tell us more about that taxonomy. But also when I asked you which papers you wanted to talk about today, you said beside 10 and 51, I think 1, 14 39, 49, 57 and 63 are especially interesting. That's so tantalizing, and you c- you can't talk about all of them, but maybe give us a sense of why you picked some of those numbers that you did.

[00:42:11] Colleen Sheehan: Well, in terms of studying the Federalist Papers I think either and both, either and both is the answer to your question there that it's, it's, it's good to, to study it the way it was originally thought to be laid out by Hamilton. Of course, it doesn't quite work out as planned because this is a work in progress, right, as they're, they're writing these papers, staying up burning the midnight oil to get it in by the deadline, to publish it in the, in the newspapers. And so sometimes the plan didn't go quite as, as, as planned to begin with. So they don't really follow Hamilton's original plan perfectly.

And it is interesting to see the different personalities coming through despite the fact that they all sign the each paper Publius as if there's one persona writing these papers. Publius speaks with one voice, but you can discover in the pages of the Federalists when you see how Hamilton and Madison will disagree and be on different sides of the party line later on, you can see the seeds of some of that in, in their essays. For example, Madison, one of the essays talks about trade, h- how it has to take its natural, agriculture and trade, it has to take its natural course.

Well, that's exactly his argument in the 1790s against Hamilton's report on manufacturers. Hamilton wants to jumpstart manufacturers. Madison says, no, trade should take its natural course. Madison was with the physiocrats then, where he would be much of a free market kind of guy. Don't get government involved in subsidizing this. And Hamilton is saying, we have to, we have to in order to compete with England. Don't you understand economics? Madison and Jefferson, you guys don't get it. So you can see some of the seeds of that in the Federalist Papers.

I think Federalist number one, when Hamilton says, you know, seems to have been reserved to the people of this country to decide the important question, whether or not societies of men are really capable of establishing good government on the basis of reflection and choice, or whether they're forever destined for their political constitutions to depend on accident and force. That one sentence, a long sentence, but if you parse it out, think about that, our choices, I mean, it's either gonna be accident and force in some form, material near another, or the possibility of establishing good government on the basis of reflection and choice. That is exactly the dichotomy put before us in book one of Plato's Republic.

[00:44:56] Jeffrey Rosen: Hmm.

[00:44:57] Colleen Sheehan: This, that's, that's exactly what's going on in the pro-am of Plato's Republic, power, is it gonna be on the basis of power or is it gonna be on the basis of persuasion? Is it gonna be ballots ultimately or bullets? And are we facing that in the United States today? We're asking ourselves that question. Can we go on? Can we talk to each other so we can persuade each other and be one people rather than resort to force? Once we resort to force, the rule of law is in danger, as Lincoln tells us in the Lyceum address, and it's a very easy slide downhill, and just some kind of chaos, anarchy and disrespect for government and disrespect for each other.

So that opening salvo of Federalist number one is more than mere words. It's more than rhetoric. It's puts before us the question of politics, which is the question for each of us as citizens. What are we going to choose? And how we act is that choice. How we act with one another is making that choice. I have to say one word about Federalist 49, it's my favorite, though I like, though I have others that, that come in close seconds but Federalists 49 is Madison's disagreement with Jefferson, and he takes him to task, and he really kind of points out, he shows us that the seeds of his theory of public opinion are in Federalist 49. But there's another thing I like about it. And Jack Rikove, if he's listening will laugh at this.

So at Montpelier, that beautiful farm that you can, Madison's home that you can walk around, there are these, these gorgeous horses there. And Jack and I were ruminating one time about these horses, if, if any of them were race horses, wouldn't you wanna name one of them ticklish experiment?

[00:46:51] Jeffrey Rosen: [inaudible 00:49:26].

[00:46:54] Colleen Sheehan: Madison says, Madison says, you know, calling a second convention, you shouldn't do that. It's a ticklish experiment. So we, we thought that if there was a race horse from Montpelier, it ought to be named ticklish experiment. Let me con- let me just conclude with my favorite passage in the Federalist Papers. It's actually from Federalist 39, which I think sums up the vision of the Federalist. The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America, with the fundamental principles of the revolution, or with the honorable determination, which animates every votary of, of freedom to rest all our political experiments on the capacity of mankind for self-government. That's the project of the Federalist, that's the challenge of the Federalist, that's our challenge still today.

[00:47:58] Jeffrey Rosen: So inspiring. Thank you so much for that. Thank you for reminding us that it all comes back to Plato and Aristotle, power and persuasion, reason and passion reflected in Federalist one. And thanks for sharing your favorites, including 49. Greg, I, I know it's very hard to pick one, but s- so, so much fun to hear which ones especially speak to you. Can you single out one or two Federalist Papers that you like especially?

[00:48:26] Gregory Maggs: Well, you know, the one that that captures the imagination as a, as a judge and as a legal scholar of constitutional laws Federalist 78. Now, as I mentioned earlier, Federalist 78, it's one of the most cited in the courts. Whether anybody actually read it at the time as I mentioned, eight states had already ratified before it was published. It was one of the last ones published. It was, wasn't first published in the newspaper. It was published in the, in the second volume of the Federalist and it was only later published in the newspapers. But it talks about the judiciary, and it says two things which both seem eminently reasonable until you think about them, and then you wonder whether they're contradictory.

One is it says that the, the courts, the judiciary is the least dangerous branch, because all they do is apply the law. They just decide the questions, and they don't have their own force or their own political will. And then in a very interesting passage, they expressly discuss judicial review, that if there are provisions that are contrary to the constitution, the courts have no choice but to enforce the constitution over the provisions. Now, this is somewhat remarkable because while there is the supremacy clause, which says that the constitution is supreme over state law, there's, there's nothing that really says what the relationship of the constitution to laws passed by Congress are. But the unmistakable implication of Federalist 78 is that they're talking about judicial review.

And those two propositions seem evident to us and, and reasonable that they're not like the president, they're not like the Congress. They, they take cases that come to them and they decide them according to law, and they're there for the least dangerous branch. And then at the same time, it says, and of course, they get to decide when there's a conflict between legislation and the constitution. And I don't think at the time they understood that that could be seen as making it perhaps one of the most dangerous branches. If not one of the most dangerous, one of the most powerful. And you know, it, it was difficult for them in their mindset to see things that would transpire later on. It doesn't make them wrong but it's very interesting.

And certainly any lawyer who's interested in judicial review and, and charges of judicial activism or arguments that there is in judicial activism should read the Federalist 78.

[00:50:43] Jeffrey Rosen: Thank you so much for that. So great to read Federalist 78 and also to hear [inaudible 00:53:36] recommendation of Federalist 49. Well, it is time for closing arguments in this wonderful discussion of the Federalist Papers on Constitution Day. Your homework with the people listeners is, is obvious read the Federalist Papers. And if you find you have a favorite, write to me and tell me what it is and why, [email protected] . And in order to inspire you to do that homework, I'm gonna ask for closing statements from Professor Sheehan and Judge Maggs. Colleen, the first one is to you, why should We the People listeners read the Federalist Papers on Constitution Day, and why are the Federalist Papers important?

[00:51:29] Colleen Sheehan: We the people would find it in our interest, if not for the purpose of simply of edification and amazement to read the Federalist, I think, because we don't depend on others to govern us. We have the responsibility to govern ourselves. And as Madison once put it, liberty and learning lean on each other. You can't have liberty without learning for free people. Otherwise, he says it's a prologue to a farce or a tragedy, or perhaps both. Well, I don't want either of those things to be the end of the American story. So one of the places that we can educate ourselves in both our rights and our responsibilities as citizens is by reading the Federalist. I think Jefferson's right, it's the best commentary on the principles of government that ever was written.

Let me just say one word about Constitution Day in 1787. I went back and looked at the weather map that day. It was a gloomy day in Philadelphia, September 17th, 1787. It was overcast. And you can just imagine the men in what we today call leggings, all these men walking around Independence Hall in leggings walking up to Washington's desk and putting their signature on that parchment. And then afterwards, they adjourned, e- except, I don't know if Elbridge Gary, Edmund Rudolf, and George Mason went with them, maybe to, probably to the city tavern over on, on, on second street, and they celebrated. But as, as Ben Franklin said, yes, it's a republic if we can keep it. I think there's never been a time more than today that that question is real for us. It was certainly the case in 1860, but it's again, the case in 2021. Do we wanna keep it? Are we willing to do the work to keep it? I think it's something that we as Americans have to give them a serious thought to. And Constitution is a good day to spend a little time thinking about that.

[00:53:48] Jeffrey Rosen: Thank you very much for that. Greg, the last words are to you. Why should We the People listeners read the Federalist Papers on Constitution Day, and why are they important?

[00:53:59] Gregory Maggs: You know, in in the 1820s Chief Justice Marshall in the case of Cohens v. Virginia said this about the Federalist Papers, it is a complete commentary on our constitution, and it is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part of two of its members, and he was speaking about Hamilton and Madison, performed in the framing of the constitution put it very much in their power to explain the views with which it was framed. The Federalist Papers are not the final word. They are not a perfect source of the original meaning of the constitution. And yet, I think it's almost impossible to get ahold of the original meaning without at least considering what the Federalist Papers have to offer.

And I think if you're interested in the constitution, if you're interested in what they, the framers intended to accomplish, the ratifiers wanted I think you have to include the Federalist Papers in your study.

[00:54:58] Jeffrey Rosen: Thank you so much, Colleen Sheehan and Judge Gregory Maggs for a wonderful discussion of the Federalist Papers, the philosophy that inspired them, and the reasons for reading them today. Thank you We the People listeners for reading the Federalist Papers, and if you find a favorite, let me know. Colleen, Greg, thank you so much for joining, and happy Constitution Day.

[00:55:24] Gregory Maggs: Happy Constitution Day.

[00:55:26] Colleen Sheehan: Thank you very much. Happy Constitution Day, September 17th.

[00:55:31] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Sam Desai, John Guerra and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple, and recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional illumination and debate. And always remember that the National Constitution Center is a private nonprofit. Thanks so much to those of you who have been sending in donations of any amounts, $5, $10 to show your support for the mission. In honor of Constitution Day, it would be so great if you would go online and make a donation as a sign of your support. You can do that by becoming a member at constitutioncenter.org/membership, or give a donation of any amount at constitutioncenter.org/donate. On behalf of the National Constitution Center. I'm Jeffrey Rosen, and happy Constitution Day.

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Introduction

The events and discussions leading to the adoption of the Constitution and its amendments are recorded in a variety of reports, journals, and other documents. These materials continue to be important resources as courts attempt to apply the terms of an 18th century document to evolving modern circumstances. The following proceedings and documents can provide valuable historical background on the U.S. Constitution.

There is no official record of the proceedings regarding the Constitutional Convention of 1787.  James Madison kept the journal of the proceedings, but it included only procedural information. Several editions of this journal are available online and in print at the library: 

• The Debates in the Federal Convention of 1787: Which framed the Constitution of the United States of America / reported by James Madison (1920 ed.)

A more modern source to consult is Max Farrand's  T he Records of the Federal Constitution of 1787 .  Farrand's  Records  remains the single best source for discussions of the Constitutional Convention as it gathers together the documentary records of the Constitutional Convention and the materials necessary to study the workings of the Constitutional Convention. Published in 1911, the documentary records of the Constitutional Convention were compiled into three volumes containing the notes by major participants and the texts of various alternative plans presented. The three volumes also includes notes and letters by many other participants, as well as the various constitutional plans proposed during the convention. 

Full text access to the 1911 edition is available online at the following sources:

• HeinOnline's World Constitutions Illustrated
• A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875

Subsequent editions:

• The Records of the Federal Convention of 1787 (rev. 1937) In 1937, Farrand published a revised edition, which included a fourth volume.
• The Records of the Federal convention of 1787 (rev. 1987) In 1987, a supplement to Farrand's Records was compiled and edited by James Hutson.

For more on the Anti-Federalists, who made the case  against  ratification, as well as debates on the ratification of the Constitution, see:

• The Complete Anti-Federalist by Herbert J. Storing The most comprehensive collection of Anti-Federalist writings.
• Birth of the Bill of Rights : Encyclopedia of the Antifederalists by Jon L. Wakelyn Includes biographies of 140 prominent Anti-Federalists, as well as major speeches and writings arranged by state.
• Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787 by Jonathan Elliot A five-volume collection compiled by Jonathan Elliot remains the best source for materials about the national government's transitional period between the closing of the Constitutional Convention in September 1787 and the opening of the First Federal Congress in March 1789
• The Documentary History of the Ratification of the Constitution (UVA Press, Digital Edition) This work is generally considered more accurate and authoritative than Elliot's Debates. This landmark work in historical and legal scholarship draws upon thousands of sources to trace the Constitution’s progress through each of the thirteen states’ conventions. The digital edition allows users to search the complete contents by date, title, author, recipient, or state affiliation and preserves the copious annotations of the print edition.

The Federalist Papers (also known as "The Federalist") were a series of eighty-five essays urging the citizens of New York to ratify the new United States Constitution written by Alexander Hamilton, James Madison, and John Jay.The Federalist Papers are considered one of the most important sources for interpreting and understanding the original intent of the Constitution.

These arguments made for ratification of the Constitution were published in collected form as  The Federalist: A Collection of Essays, Written in Favour of the New Constitution  (1788) , which is available from the following sources:

• The Federalist: A Collection of Essays, Written in Favour of the New Constitution (HeinOnline) Essays written during the early development of American Constitutional History. Includes "The Federalist" and other essays written by Alexander Hamilton, John Jay, and James Madison. Also available in print.
• The Federalist and Other Constitutional Papers In addition to The Federalist, this book includes information on other essays and discussions from between the time when the work of the Federal Convention was announced and the time when the Constitution was adopted by the States.
• The Federalist Papers (Yale's Avalon Project) The Avalon Project provides primary source materials relevant to the fields of law, history, economics, politics, diplomacy, and government.
• The Federalist Papers (Library of Congress) The original text of the Federalist Papers obtained from the e-text archives of Project Gutenberg.

The Amendments Project

• The Amendments Project The Amendments Project (TAP) is a searchable archive of the full text of nearly every amendment to the U.S. Constitution proposed in Congress between 1789 and 2022 (more than 11,000 proposals).Only twenty-seven amendments to the U.S. Constitution have ever been ratified; the Amendments Project is, then, an archive of failures.

Since ratification in 1788, thousands of amendments have been proposed, though the Constitution has been amended only twenty-seven times. As outlined in Article V, amendments to the Constitution are proposed by Congress and presented to the states for ratification. These amendments are discussed in length in the following sources:

• Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2010 by John R. Vile Provides a comprehensive analysis of the United States' constitutional amendments. With over 400 short articles, this encyclopedia tells the whole story of constitutional amendments: the rigorous ratification process, the significance of the 27 amendments, and the thousands that didn't pass.
• The Founders' Constitution by Philip B. Kurland & Ralph Lerner Covers the first twelve amendments as well as the original seven articles.
• The Complete Bill of Rights : the Drafts, Debates, Sources, and Origins by Neil H. Cogan Provides excerpts from source documents arranged by amendment as well as texts of proposals in Congress and from the state conventions, and discussion of the amendments in Congress, conventions, newspapers and letters.
• The Reconstruction Amendments' Debates : the Legislative History and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments by Alfred Avins The Reconstruction amendments such as the Fourteenth Amendment's Due Process and Equal Protection Clauses were proposed by Congress and the deliberations of the House and Senate debates for these amendments were reprinted in this source. It also contains guide explaining the context of each document.
• Constitutional Amendments, 1789 to the Present by Kris E. Palmer Addresses each amendment in order with a length article on the original context and subsequent interpretation.
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Constitution Annotated: A Research Guide

Guide to constitution annotated essays.

• Introduction
• How to Use the Constitution Annotated Website
• Resources for Constitution Annotated Research
• Primary and Secondary Sources
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As a starting point to your constitutional research, you can begin to explore the Constitution Annotated by subject matter using the menu below or by inputting keywords in the search bar .

The links in the section below take you to the browse section for each constitutional provision's annotated essays. Individual essays can be accessed by clicking the serial numbers left of each essay title.

Introductory Essays

• U.S. Constitution (Articles 1-7)
• Bill of Rights (1-10)
• Early Amendments (11-12)
• Reconstruction Amendments (13-15)
• Early 20th Century Amendments (16-22)
• Post-War Amendments (23-27)

Unratified Amendments

These essays introduce the reader to various components underpinning the Constitution Annotated and how the Constitution is interpreted today.

• Constitution Annotated Methodology This section of essays explains the methodology for the current edition of the Constitution Annotated—that is, the rules and principles that dictate the organization and construction of the document.
• Organization of the Constitution Annotated The section of essays covers how the Constitution Annotated is organized.
• Historical Background of the Constitution This section of essays covers the historical background of the creation of the Constitution in 1787, looking at the Articles of Confederation and the Constitutional Convention.
• Basic Principles Underlying the Constitution This section of essays explores the basic principles underlying and permeating the Constitution, such as federalism, separation of powers, and rights.
• Ways to Interpret the Constitution This section of essays explores the various current frameworks by which the Constitution is interpreted by the Supreme Court, such as textualism, pragmatism, and moral reasoning.

The U.S. Constitution

The foundational legal document of the United States of America.

Legislative Power (Article I)

This section encompasses essays on Article I of the Constitution dealing specifically with the Legislative branch, its powers, and functions. A recommended first stop is the annotated essay on the Historical Origin Limits on Federal Power .

Executive Power (Article II)

This section encompasses essays on Article II of the Constitution dealing specifically with the Executive branch, the Presidency, its powers, and functions. A recommended first stop is the annotated essay on the Overview of Article II, Executive Branch .

Judicial Power (Article III)

This section encompasses essays on Article III of the Constitution dealing specifically with the Judicial branch, its powers, and functions. A recommended first stop is the annotated essay on Marbury v. Madison and Judicial Review .

Interstate Relations (Article IV)

This section encompasses essays on Article IV of the Constitution dealing specifically with the relationships between states. A recommended first stop is the annotated essay on the Purpose of Privileges and Immunities Clause.

Amending the Constitution (Article V)

This section encompasses essays on Article V of the Constitution dealing specifically with the creation of constitutional amendments. A recommended first stop is the annotated essay on Congressional Proposals of Amendments .

Supreme Law (Article VI)

This section encompasses essays on Article VI of the Constitution dealing specifically with the establishment of the Constitution as the Supreme Law of the Land. A recommended first stop is the annotated essay on the Overview of the Supremacy Clause.

Ratification (Article VII)

This section encompasses essays on Article VII of the Constitution dealing specifically with the ratification of the Constitution.

Bill of Rights

The first ten amendments to the Constitution.

First Amendment: Fundamental Freedoms

This section encompasses essays on the First Amendment dealing specifically with fundamental freedoms. A recommended first stop is the annotated essay on State Action Doctrine and Free Speech .

Second Amendment

This section encompasses essays on the Second Amendment dealing specifically with the right to bear arms. A recommended first stop is the annotated essay on Early Second Amendment Jurisprudence.

Third Amendment

This section encompasses essays on the Third Amendment dealing specifically with the quartering of soldiers. A recommended first stop is the annotated essay on Government Intrusion .

Fourth Amendment

This section encompasses essays on the Fourth Amendment dealing specifically with searches and seizures. A recommended first stop is the annotated essay on the Amendment’s Historical Background .

Fifth Amendment

This section encompasses essays on the Fifth Amendment dealing specifically with the rights of persons. A recommended first stop is the annotated essay overviewing Due Process .

Sixth Amendment

This section encompasses essays on the Sixth Amendment dealing specifically with rights in criminal prosecutions. A recommended first stop is the annotated essay on Prejudice and the Right to a Speedy Trial.

Seventh Amendment

This section encompasses essays on the Seventh Amendment dealing specifically with civil trial rights. A recommended first stop is the annotated essay overviewing the Seventh Amendment.

Eighth Amendment

This section encompasses essays on the Eighth Amendment dealing specifically with cruel and unusual punishment. A recommended first stop is the annotated essay on the standard of cruel and unusual punishment.

Ninth Amendment

This section encompasses essays on the Ninth Amendment dealing specifically with unenumerated rights. A recommended first stop is the annotated essay on the Amendment’s modern doctrine.

Tenth Amendment

This section encompasses essays on the Tenth Amendment dealing specifically with rights reserved to states and the people. A recommended first stop is the annotated essay on State Sovereignty .

Early Amendments

The two earliest amendments ratified after the Bill of Rights.

Eleventh Amendment

This section encompasses essays on the Eleventh Amendment dealing specifically with suits against states. A recommended first stop is the annotated essay on the Amendment’s historical background.

Twelfth Amendment

This section encompasses essays on the Twelfth Amendment dealing specifically with the election of the President.

Reconstruction Amendments

Also referred to as the Civil War Amendments, the 13th-15th Amendments were passed in the immediate aftermath of the Civil War to enshrine constitutional protections for newly-freed Black Americans.

Thirteenth Amendment

This section encompasses essays on the Thirteenth Amendment dealing specifically with the abolition of slavery. A recommended first stop is the annotated essay on Defining Badges and Incidents of Slavery

Fourteenth Amendment

This section encompasses essays on the Fourteenth Amendment dealing specifically with equal protection and other rights. A recommended first stop is the annotated essay overviewing Substantive Due Process .

Fifteenth Amendment

This section encompasses essays on the Fifteenth Amendment dealing specifically with the right to vote. A recommended first stop is the annotated essay on the right to vote generally .

Early Twentieth Century Amendments

The constitutional amendments ratified in the early twentieth century prior to the Second World War.

Sixteenth Amendment

This section encompasses essays on the Sixteenth Amendment dealing specifically with income tax. A recommended first stop is the annotated essay on the historical background of the Amendment.

Seventeenth Amendment

This section encompasses essays on the Seventeenth Amendment dealing specifically with the popular election of senators. A recommended first stop is the annotated essay on the historical background of the Amendment.

Eighteenth Amendment

This section encompasses essays on the Eighteenth Amendment dealing specifically with the prohibition of alcohol.

Nineteenth Amendment

This section encompasses essays on the Nineteenth Amendment dealing specifically with women’s suffrage. A recommended first stop is the annotated essay overviewing the amendment .

Twentieth Amendment

This section encompasses essays on the Twentieth Amendment dealing specifically with the presidential terms and succession.

Twenty-First Amendment

This section encompasses essays on the Twenty-First Amendment dealing specifically with the repeal of prohibition. A recommended first stop is the annotated essay on interstate commerce .

Twenty-Second Amendment

This section encompasses essays on the Twenty-Second Amendment dealing specifically with Presidential term limits.

Post-War Amendments

Constitutional amendments passed in the twentieth century after the conclusion of the Second World War.

Twenty-Third Amendment

This section encompasses essays on the Twenty-Third Amendment dealing specifically with District of Columbia electors.

Twenty-Fourth Amendment

This section encompasses essays on the Twenty-Fourth Amendment dealing specifically with the abolition of poll tax.

Twenty-Fifth Amendment

This section encompasses essays on the Twenty-Fifth Amendment dealing specifically with Presidential vacancy.

Twenty-Sixth Amendment

This section encompasses essays on the Twenty-Sixth Amendment dealing specifically with the reduction of voting age.

Twenty-Seventh Amendment

This section encompasses essays on the Twenty-Sixth Amendment dealing specifically with the congressional compensation. A recommended first stop is the annotated essay overviewing the amendment .

Six amendments have been proposed by Congress, but have not been ratified by the States.

• Proposed Amendments Not Ratified by the States This essay covers amendments proposed by Congress, but as of yet unratified by the States.
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America's Founding Documents

Constitution of the United States—A History

A more perfect union: the creation of the u.s. constitution.

General George Washington

He was unanimously elected president of the Philadelphia convention.

May 25, 1787, freshly spread dirt covered the cobblestone street in front of the Pennsylvania State House, protecting the men inside from the sound of passing carriages and carts. Guards stood at the entrances to ensure that the curious were kept at a distance. Robert Morris of Pennsylvania, the "financier" of the Revolution, opened the proceedings with a nomination--Gen. George Washington for the presidency of the Constitutional Convention. The vote was unanimous. With characteristic ceremonial modesty, the general expressed his embarrassment at his lack of qualifications to preside over such an august body and apologized for any errors into which he might fall in the course of its deliberations.

To many of those assembled, especially to the small, boyish-looking, 36-year-old delegate from Virginia, James Madison, the general's mere presence boded well for the convention, for the illustrious Washington gave to the gathering an air of importance and legitimacy But his decision to attend the convention had been an agonizing one. The Father of the Country had almost remained at home.

Suffering from rheumatism, despondent over the loss of a brother, absorbed in the management of Mount Vernon, and doubting that the convention would accomplish very much or that many men of stature would attend, Washington delayed accepting the invitation to attend for several months. Torn between the hazards of lending his reputation to a gathering perhaps doomed to failure and the chance that the public would view his reluctance to attend with a critical eye, the general finally agreed to make the trip. James Madison was pleased.

The Articles of Confederation

The determined Madison had for several years insatiably studied history and political theory searching for a solution to the political and economic dilemmas he saw plaguing America. The Virginian's labors convinced him of the futility and weakness of confederacies of independent states. America's own government under the Articles of Confederation, Madison was convinced, had to be replaced. In force since 1781, established as a "league of friendship" and a constitution for the 13 sovereign and independent states after the Revolution, the articles seemed to Madison woefully inadequate. With the states retaining considerable power, the central government, he believed, had insufficient power to regulate commerce. It could not tax and was generally impotent in setting commercial policy it could not effectively support a war effort. It had little power to settle quarrels between states. Saddled with this weak government, the states were on the brink of economic disaster. The evidence was overwhelming. Congress was attempting to function with a depleted treasury; paper money was flooding the country, creating extraordinary inflation--a pound of tea in some areas could be purchased for a tidy $100; and the depressed condition of business was taking its toll on many small farmers. Some of them were being thrown in jail for debt, and numerous farms were being confiscated and sold for taxes.

In 1786 some of the farmers had fought back. Led by Daniel Shays, a former captain in the Continental army, a group of armed men, sporting evergreen twigs in their hats, prevented the circuit court from sitting at Northampton, MA, and threatened to seize muskets stored in the arsenal at Springfield. Although the insurrection was put down by state troops, the incident confirmed the fears of many wealthy men that anarchy was just around the corner. Embellished day after day in the press, the uprising made upper-class Americans shudder as they imagined hordes of vicious outlaws descending upon innocent citizens. From his idyllic Mount Vernon setting, Washington wrote to Madison: "Wisdom and good examples are necessary at this time to rescue the political machine from the impending storm."

Madison thought he had the answer. He wanted a strong central government to provide order and stability. "Let it be tried then," he wrote, "whether any middle ground can be taken which will at once support a due supremacy of the national authority," while maintaining state power only when "subordinately useful." The resolute Virginian looked to the Constitutional Convention to forge a new government in this mold.

The convention had its specific origins in a proposal offered by Madison and John Tyler in the Virginia assembly that the Continental Congress be given power to regulate commerce throughout the Confederation. Through their efforts in the assembly a plan was devised inviting the several states to attend a convention at Annapolis, MD, in September 1786 to discuss commercial problems. Madison and a young lawyer from New York named Alexander Hamilton issued a report on the meeting in Annapolis, calling upon Congress to summon delegates of all of the states to meet for the purpose of revising the Articles of Confederation. Although the report was widely viewed as a usurpation of congressional authority, the Congress did issue a formal call to the states for a convention. To Madison it represented the supreme chance to reverse the country's trend. And as the delegations gathered in Philadelphia, its importance was not lost to others. The squire of Gunston Hall, George Mason, wrote to his son, "The Eyes of the United States are turned upon this Assembly and their Expectations raised to a very anxious Degree. May God Grant that we may be able to gratify them, by establishing a wise and just Government."

The Delegates

Seventy-four delegates were appointed to the convention, of which 55 actually attended sessions. Rhode Island was the only state that refused to send delegates. Dominated by men wedded to paper currency, low taxes, and popular government, Rhode Island's leaders refused to participate in what they saw as a conspiracy to overthrow the established government. Other Americans also had their suspicions. Patrick Henry, of the flowing red Glasgow cloak and the magnetic oratory, refused to attend, declaring he "smelt a rat." He suspected, correctly, that Madison had in mind the creation of a powerful central government and the subversion of the authority of the state legislatures. Henry along with many other political leaders, believed that the state governments offered the chief protection for personal liberties. He was determined not to lend a hand to any proceeding that seemed to pose a threat to that protection.

With Henry absent, with such towering figures as Jefferson and Adams abroad on foreign missions, and with John Jay in New York at the Foreign Office, the convention was without some of the country's major political leaders. It was, nevertheless, an impressive assemblage. In addition to Madison and Washington, there were Benjamin Franklin of Pennsylvania--crippled by gout, the 81-year-old Franklin was a man of many dimensions printer, storekeeper, publisher, scientist, public official, philosopher, diplomat, and ladies' man; James Wilson of Pennsylvania--a distinguished lawyer with a penchant for ill-advised land-jobbing schemes, which would force him late in life to flee from state to state avoiding prosecution for debt, the Scotsman brought a profound mind steeped in constitutional theory and law; Alexander Hamilton of New York--a brilliant, ambitious former aide-de-camp and secretary to Washington during the Revolution who had, after his marriage into the Schuyler family of New York, become a powerful political figure; George Mason of Virginia--the author of the Virginia Bill of Rights whom Jefferson later called "the Cato of his country without the avarice of the Roman"; John Dickinson of Delaware--the quiet, reserved author of the "Farmers' Letters" and chairman of the congressional committee that framed the articles; and Gouverneur Morris of Pennsylvania-- well versed in French literature and language, with a flair and bravado to match his keen intellect, who had helped draft the New York State Constitution and had worked with Robert Morris in the Finance Office.

There were others who played major roles - Oliver Ellsworth of Connecticut; Edmund Randolph of Virginia; William Paterson of New Jersey; John Rutledge of South Carolina; Elbridge Gerry of Massachusetts; Roger Sherman of Connecticut; Luther Martin of Maryland; and the Pinckneys, Charles and Charles Cotesworth, of South Carolina. Franklin was the oldest member and Jonathan Dayton, the 27-year-old delegate from New Jersey was the youngest. The average age was 42. Most of the delegates had studied law, had served in colonial or state legislatures, or had been in the Congress. Well versed in philosophical theories of government advanced by such philosophers as James Harrington, John Locke, and Montesquieu, profiting from experience gained in state politics, the delegates composed an exceptional body, one that left a remarkably learned record of debate. Fortunately we have a relatively complete record of the proceedings, thanks to the indefatigable James Madison. Day after day, the Virginian sat in front of the presiding officer, compiling notes of the debates, not missing a single day or a single major speech. He later remarked that his self-confinement in the hall, which was often oppressively hot in the Philadelphia summer, almost killed him.

The sessions of the convention were held in secret--no reporters or visitors were permitted. Although many of the naturally loquacious members were prodded in the pubs and on the streets, most remained surprisingly discreet. To those suspicious of the convention, the curtain of secrecy only served to confirm their anxieties. Luther Martin of Maryland later charged that the conspiracy in Philadelphia needed a quiet breeding ground. Thomas Jefferson wrote John Adams from Paris, "I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members."

The Virginia Plan

On Tuesday morning, May 29, Edmund Randolph, the tall, 34-year- old governor of Virginia, opened the debate with a long speech decrying the evils that had befallen the country under the Articles of Confederation and stressing the need for creating a strong national government. Randolph then outlined a broad plan that he and his Virginia compatriots had, through long sessions at the Indian Queen tavern, put together in the days preceding the convention. James Madison had such a plan on his mind for years. The proposed government had three branches--legislative, executive, and judicial--each branch structured to check the other. Highly centralized, the government would have veto power over laws enacted by state legislatures. The plan, Randolph confessed, "meant a strong consolidated union in which the idea of states should be nearly annihilated." This was, indeed, the rat so offensive to Patrick Henry.

The introduction of the so-called Virginia Plan at the beginning of the convention was a tactical coup. The Virginians had forced the debate into their own frame of reference and in their own terms.

For 10 days the members of the convention discussed the sweeping and, to many delegates, startling Virginia resolutions. The critical issue, described succinctly by Gouverneur Morris on May 30, was the distinction between a federation and a national government, the "former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation." Morris favored the latter, a "supreme power" capable of exercising necessary authority not merely a shadow government, fragmented and hopelessly ineffective.

The New Jersey Plan

This nationalist position revolted many delegates who cringed at the vision of a central government swallowing state sovereignty. On June 13 delegates from smaller states rallied around proposals offered by New Jersey delegate William Paterson. Railing against efforts to throw the states into "hotchpot," Paterson proposed a "union of the States merely federal." The "New Jersey resolutions" called only for a revision of the articles to enable the Congress more easily to raise revenues and regulate commerce. It also provided that acts of Congress and ratified treaties be "the supreme law of the States."

For 3 days the convention debated Paterson's plan, finally voting for rejection. With the defeat of the New Jersey resolutions, the convention was moving toward creation of a new government, much to the dismay of many small-state delegates. The nationalists, led by Madison, appeared to have the proceedings in their grip. In addition, they were able to persuade the members that any new constitution should be ratified through conventions of the people and not by the Congress and the state legislatures- -another tactical coup. Madison and his allies believed that the constitution they had in mind would likely be scuttled in the legislatures, where many state political leaders stood to lose power. The nationalists wanted to bring the issue before "the people," where ratification was more likely.

Hamilton's Plan

Alexander Hamilton

On June 18 called the British government "the best in the world" and proposed a model strikingly similar. The erudite New Yorker, however, later became one of the most ardent spokesmen for the new Constitution.

On June 18 Alexander Hamilton presented his own ideal plan of government. Erudite and polished, the speech, nevertheless, failed to win a following. It went too far. Calling the British government "the best in the world," Hamilton proposed a model strikingly similar an executive to serve during good behavior or life with veto power over all laws; a senate with members serving during good behavior; the legislature to have power to pass "all laws whatsoever." Hamilton later wrote to Washington that the people were now willing to accept "something not very remote from that which they have lately quitted." What the people had "lately quitted," of course, was monarchy. Some members of the convention fully expected the country to turn in this direction. Hugh Williamson of North Carolina, a wealthy physician, declared that it was "pretty certain . . . that we should at some time or other have a king." Newspaper accounts appeared in the summer of 1787 alleging that a plot was under way to invite the second son of George III, Frederick, Duke of York, the secular bishop of Osnaburgh in Prussia, to become "king of the United States."

Alexander Hamilton on June 18 called the British government "the best in the world" and proposed a model strikingly similar. The erudite New Yorker, however, later became one of the most ardent spokesmen for the new Constitution.

Strongly militating against any serious attempt to establish monarchy was the enmity so prevalent in the revolutionary period toward royalty and the privileged classes. Some state constitutions had even prohibited titles of nobility. In the same year as the Philadelphia convention, Royall Tyler, a revolutionary war veteran, in his play The Contract, gave his own jaundiced view of the upper classes:

Exult each patriot heart! this night is shewn A piece, which we may fairly call our own; Where the proud titles of "My Lord!" "Your Grace!" To humble Mr. and plain Sir give place.

Most delegates were well aware that there were too many Royall Tylers in the country, with too many memories of British rule and too many ties to a recent bloody war, to accept a king. As the debate moved into the specifics of the new government, Alexander Hamilton and others of his persuasion would have to accept something less.

By the end of June, debate between the large and small states over the issue of representation in the first chamber of the legislature was becoming increasingly acrimonious. Delegates from Virginia and other large states demanded that voting in Congress be according to population; representatives of smaller states insisted upon the equality they had enjoyed under the articles. With the oratory degenerating into threats and accusations, Benjamin Franklin appealed for daily prayers. Dressed in his customary gray homespun, the aged philosopher pleaded that "the Father of lights . . . illuminate our understandings." Franklin's appeal for prayers was never fulfilled; the convention, as Hugh Williamson noted, had no funds to pay a preacher.

On June 29 the delegates from the small states lost the first battle. The convention approved a resolution establishing population as the basis for representation in the House of Representatives, thus favoring the larger states. On a subsequent small-state proposal that the states have equal representation in the Senate, the vote resulted in a tie. With large-state delegates unwilling to compromise on this issue, one member thought that the convention "was on the verge of dissolution, scarce held together by the strength of an hair."

By July 10 George Washington was so frustrated over the deadlock that he bemoaned "having had any agency" in the proceedings and called the opponents of a strong central government "narrow minded politicians . . . under the influence of local views." Luther Martin of Maryland, perhaps one whom Washington saw as "narrow minded," thought otherwise. A tiger in debate, not content merely to parry an opponent's argument but determined to bludgeon it into eternal rest, Martin had become perhaps the small states' most effective, if irascible, orator. The Marylander leaped eagerly into the battle on the representation issue declaring, "The States have a right to an equality of representation. This is secured to us by our present articles of confederation; we are in possession of this privilege."

The Great Compromise

Also crowding into this complicated and divisive discussion over representation was the North-South division over the method by which slaves were to be counted for purposes of taxation and representation. On July 12 Oliver Ellsworth proposed that representation for the lower house be based on the number of free persons and three-fifths of "all other persons," a euphemism for slaves. In the following week the members finally compromised, agreeing that direct taxation be according to representation and that the representation of the lower house be based on the white inhabitants and three-fifths of the "other people." With this compromise and with the growing realization that such compromise was necessary to avoid a complete breakdown of the convention, the members then approved Senate equality. Roger Sherman had remarked that it was the wish of the delegates "that some general government should be established." With the crisis over representation now settled, it began to look again as if this wish might be fulfilled.

For the next few days the air in the City of Brotherly Love, although insufferably muggy and swarming with blue-bottle flies, had the clean scent of conciliation. In this period of welcome calm, the members decided to appoint a Committee of Detail to draw up a draft constitution. The convention would now at last have something on paper. As Nathaniel Gorham of Massachusetts, John Rutledge, Edmund Randolph, James Wilson, and Oliver Ellsworth went to work, the other delegates voted themselves a much needed 10-day vacation.

During the adjournment, Gouverneur Morris and George Washington rode out along a creek that ran through land that had been part of the Valley Forge encampment 10 years earlier. While Morris cast for trout, Washington pensively looked over the now lush ground where his freezing troops had suffered, at a time when it had seemed as if the American Revolution had reached its end. The country had come a long way.

The First Draft

On Monday August 6, 1787, the convention accepted the first draft of the Constitution. Here was the article-by-article model from which the final document would result some 5 weeks later. As the members began to consider the various sections, the willingness to compromise of the previous days quickly evaporated. The most serious controversy erupted over the question of regulation of commerce. The southern states, exporters of raw materials, rice, indigo, and tobacco, were fearful that a New England-dominated Congress might, through export taxes, severely damage the South's economic life. C. C. Pinckney declared that if Congress had the power to regulate trade, the southern states would be "nothing more than overseers for the Northern States."

On August 21 the debate over the issue of commerce became very closely linked to another explosive issue--slavery. When Martin of Maryland proposed a tax on slave importation, the convention was thrust into a strident discussion of the institution of slavery and its moral and economic relationship to the new government. Rutledge of South Carolina, asserting that slavery had nothing at all to do with morality, declared, "Interest alone is the governing principle with nations." Sherman of Connecticut was for dropping the tender issue altogether before it jeopardized the convention. Mason of Virginia expressed concern over unlimited importation of slaves but later indicated that he also favored federal protection of slave property already held. This nagging issue of possible federal intervention in slave traffic, which Sherman and others feared could irrevocably split northern and southern delegates, was settled by, in Mason's words, "a bargain." Mason later wrote that delegates from South Carolina and Georgia, who most feared federal meddling in the slave trade, made a deal with delegates from the New England states. In exchange for the New Englanders' support for continuing slave importation for 20 years, the southerners accepted a clause that required only a simple majority vote on navigation laws, a crippling blow to southern economic interests.

The bargain was also a crippling blow to those working to abolish slavery. Congregationalist minister and abolitionist Samuel Hopkins of Connecticut charged that the convention had sold out: "How does it appear . . . that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorize them to enslave their fellow men . . . Ah! these unclean spirits, like frogs, they, like the Furies of the poets are spreading discord, and exciting men to contention and war." Hopkins considered the Constitution a document fit for the flames.

On August 31 a weary George Mason, who had 3 months earlier written so expectantly to his son about the "great Business now before us," bitterly exclaimed that he "would sooner chop off his right hand than put it to the Constitution as it now stands." Mason despaired that the convention was rushing to saddle the country with an ill-advised, potentially ruinous central authority.  He was concerned that a "bill of rights," ensuring individual liberties, had not been made part of the Constitution. Mason called for a new convention to reconsider the whole question of the formation of a new government. Although Mason's motion was overwhelmingly voted down, opponents of the Constitution did not abandon the idea of a new convention. It was futilely suggested again and again for over 2 years.

One of the last major unresolved problems was the method of electing the executive. A number of proposals, including direct election by the people, by state legislatures, by state governors, and by the national legislature, were considered. The result was the electoral college, a master stroke of compromise, quaint and curious but politically expedient. The large states got proportional strength in the number of delegates, the state legislatures got the right of selecting delegates, and the House the right to choose the president in the event no candidate received a majority of electoral votes. Mason later predicted that the House would probably choose the president 19 times out of 20.

In the early days of September, with the exhausted delegates anxious to return home, compromise came easily. On September 8 the convention was ready to turn the Constitution over to a Committee of Style and Arrangement. Gouverneur Morris was the chief architect. Years later he wrote to Timothy Pickering: "That Instrument was written by the Fingers which wrote this letter." The Constitution was presented to the convention on September 12, and the delegates methodically began to consider each section. Although close votes followed on several articles, it was clear that the grueling work of the convention in the historic summer of 1787 was reaching its end.

Before the final vote on the Constitution on September 15, Edmund Randolph proposed that amendments be made by the state conventions and then turned over to another general convention for consideration. He was joined by George Mason and Elbridge Gerry. The three lonely allies were soundly rebuffed. Late in the afternoon the roll of the states was called on the Constitution, and from every delegation the word was "Aye."

On September 17 the members met for the last time, and the venerable Franklin had written a speech that was delivered by his colleague James Wilson. Appealing for unity behind the Constitution, Franklin declared, "I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats." With Mason, Gerry, and Randolph withstanding appeals to attach their signatures, the other delegates in the hall formally signed the Constitution, and the convention adjourned at 4 o'clock in the afternoon.

Weary from weeks of intense pressure but generally satisfied with their work, the delegates shared a farewell dinner at City Tavern. Two blocks away on Market Street, printers John Dunlap and David Claypoole worked into the night on the final imprint of the six-page Constitution, copies of which would leave Philadelphia on the morning stage. The debate over the nation's form of government was now set for the larger arena.

As the members of the convention returned home in the following days, Alexander Hamilton privately assessed the chances of the Constitution for ratification. In its favor were the support of Washington, commercial interests, men of property, creditors, and the belief among many Americans that the Articles of Confederation were inadequate. Against it were the opposition of a few influential men in the convention and state politicians fearful of losing power, the general revulsion against taxation, the suspicion that a centralized government would be insensitive to local interests, and the fear among debtors that a new government would "restrain the means of cheating Creditors."

The Federalists and the Anti-Federalists

Because of its size, wealth, and influence and because it was the first state to call a ratifying convention, Pennsylvania was the focus of national attention. The positions of the Federalists, those who supported the Constitution, and the anti-Federalists, those who opposed it, were printed and reprinted by scores of newspapers across the country. And passions in the state were most warm. When the Federalist-dominated Pennsylvania assembly lacked a quorum on September 29 to call a state ratifying convention, a Philadelphia mob, in order to provide the necessary numbers, dragged two anti-Federalist members from their lodgings through the streets to the State House where the bedraggled representatives were forced to stay while the assembly voted. It was a curious example of participatory democracy.

On October 5 anti-Federalist Samuel Bryan published the first of his "Centinel" essays in Philadelphia's Independent Gazetteer. Republished in newspapers in various states, the essays assailed the sweeping power of the central government, the usurpation of state sovereignty, and the absence of a bill of rights guaranteeing individual liberties such as freedom of speech and freedom of religion. "The United States are to be melted down," Bryan declared, into a despotic empire dominated by "well-born" aristocrats. Bryan was echoing the fear of many anti-Federalists that the new government would become one controlled by the wealthy established families and the culturally refined. The common working people, Bryan believed, were in danger of being subjugated to the will of an all-powerful authority remote and inaccessible to the people. It was this kind of authority, he believed, that Americans had fought a war against only a few years earlier.

The next day James Wilson, delivering a stirring defense of the Constitution to a large crowd gathered in the yard of the State House, praised the new government as the best "which has ever been offered to the world." The Scotsman's view prevailed. Led by Wilson, Federalists dominated in the Pennsylvania convention, carrying the vote on December 12 by a healthy 46 to 23.

The vote for ratification in Pennsylvania did not end the rancor and bitterness. Franklin declared that scurrilous articles in the press were giving the impression that Pennsylvania was "peopled by a set of the most unprincipled, wicked, rascally and quarrelsome scoundrels upon the face of the globe." And in Carlisle, on December 26, anti-Federalist rioters broke up a Federalist celebration and hung Wilson and the Federalist chief justice of Pennsylvania, Thomas McKean, in effigy; put the torch to a copy of the Constitution; and busted a few Federalist heads.

In New York the Constitution was under siege in the press by a series of essays signed "Cato." Mounting a counterattack, Alexander Hamilton and John Jay enlisted help from Madison and, in late 1787, they published the first of a series of essays now known as the Federalist Papers. The 85 essays, most of which were penned by Hamilton himself, probed the weaknesses of the Articles of Confederation and the need for an energetic national government. Thomas Jefferson later called the Federalist Papers the "best commentary on the principles of government ever written."

Against this kind of Federalist leadership and determination, the opposition in most states was disorganized and generally inert. The leading spokesmen were largely state-centered men with regional and local interests and loyalties. Madison wrote of the Massachusetts anti-Federalists, "There was not a single character capable of uniting their wills or directing their measures. . . . They had no plan whatever." The anti-Federalists attacked wildly on several fronts: the lack of a bill of rights, discrimination against southern states in navigation legislation, direct taxation, the loss of state sovereignty. Many charged that the Constitution represented the work of aristocratic politicians bent on protecting their own class interests. At the Massachusetts convention one delegate declared, "These lawyers, and men of learning and moneyed men, that . . . make us poor illiterate people swallow down the pill . . . they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!" Some newspaper articles, presumably written by anti-Federalists, resorted to fanciful predictions of the horrors that might emerge under the new Constitution pagans and deists could control the government; the use of Inquisition-like torture could be instituted as punishment for federal crimes; even the pope could be elected president.

One anti-Federalist argument gave opponents some genuine difficulty--the claim that the territory of the 13 states was too extensive for a representative government. In a republic embracing a large area, anti-Federalists argued, government would be impersonal, unrepresentative, dominated by men of wealth, and oppressive of the poor and working classes. Had not the illustrious Montesquieu himself ridiculed the notion that an extensive territory composed of varying climates and people, could be a single republican state? James Madison, always ready with the Federalist volley, turned the argument completely around and insisted that the vastness of the country would itself be a strong argument in favor of a republic. Claiming that a large republic would counterbalance various political interest groups vying for power, Madison wrote, "The smaller the society the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party and the more easily will they concert and execute their plans of oppression." Extend the size of the republic, Madison argued, and the country would be less vulnerable to separate factions within it.

Ratification

By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution--Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, withFederalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168. The revolutionary leader, John Hancock, elected to preside over the Massachusetts ratifying convention but unable to make up his mind on the Constitution, took to his bed with a convenient case of gout. Later seduced by the Federalists with visions of the vice presidency and possibly the presidency, Hancock, whom Madison noted as "an idolater of popularity," suddenly experienced a miraculous cure and delivered a critical block of votes. Although Massachusetts was now safely in the Federalist column, the recommendation of a bill of rights was a significant victory for the anti-Federalists. Six of the remaining states later appended similar recommendations.

When the New Hampshire convention was adjourned by Federalists who sensed imminent defeat and when Rhode Island on March 24 turned down the Constitution in a popular referendum by an overwhelming vote of 10 to 1, Federalist leaders were apprehensive. Looking ahead to the Maryland convention, Madison wrote to Washington, "The difference between even a postponement and adoption in Maryland may . . . possibly give a fatal advantage to that which opposes the constitution." Madison had little reason to worry. The final vote on April 28 63 for, 11 against. In Baltimore, a huge parade celebrating the Federalist victory rolled through the downtown streets, highlighted by a 15-foot float called "Ship Federalist." The symbolically seaworthy craft was later launched in the waters off Baltimore and sailed down the Potomac to Mount Vernon.

On July 2, 1788, the Confederation Congress, meeting in New York, received word that a reconvened New Hampshire ratifying convention had approved the Constitution. With South Carolina's acceptance of the Constitution in May, New Hampshire thus became the ninth state to ratify. The Congress appointed a committee "for putting the said Constitution into operation."

In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.

The Bill of Rights

The call for a bill of rights had been the anti-Federalists' most powerful weapon. Attacking the proposed Constitution for its vagueness and lack of specific protection against tyranny, Patrick Henry asked the Virginia convention, "What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances." The anti-Federalists, demanding a more concise, unequivocal Constitution, one that laid out for all to see the right of the people and limitations of the power of government, claimed that the brevity of the document only revealed its inferior nature. Richard Henry Lee despaired at the lack of provisions to protect "those essential rights of mankind without which liberty cannot exist." Trading the old government for the new without such a bill of rights, Lee argued, would be trading Scylla for Charybdis.

A bill of rights had been barely mentioned in the Philadelphia convention, most delegates holding that the fundamental rights of individuals had been secured in the state constitutions. James Wilson maintained that a bill of rights was superfluous because all power not expressly delegated to thenew government was reserved to the people. It was clear, however, that in this argument the anti-Federalists held the upper hand. Even Thomas Jefferson, generally in favor of the new government, wrote to Madison that a bill of rights was "what the people are entitled to against every government on earth."

By the fall of 1788 Madison had been convinced that not only was a bill of rights necessary to ensure acceptance of the Constitution but that it would have positive effects. He wrote, on October 17, that such "fundamental maxims of free Government" would be "a good ground for an appeal to the sense of community" against potential oppression and would "counteract the impulses of interest and passion."

Madison's support of the bill of rights was of critical significance. One of the new representatives from Virginia to the First Federal Congress, as established by the new Constitution, he worked tirelessly to persuade the House to enact amendments. Defusing the anti-Federalists' objections to the Constitution, Madison was able to shepherd through 17 amendments in the early months of the Congress, a list that was later trimmed to 12 in the Senate. On October 2, 1789, President Washington sent to each of the states a copy of the 12 amendments adopted by the Congress in September. By December 15, 1791, three-fourths of the states had ratified the 10 amendments now so familiar to Americans as the "Bill of Rights."

Benjamin Franklin told a French correspondent in 1788 that the formation of the new government had been like a game of dice, with many players of diverse prejudices and interests unable to make any uncontested moves. Madison wrote to Jefferson that the welding of these clashing interests was "a task more difficult than can be well conceived by those who were not concerned in the execution of it." When the delegates left Philadelphia after the convention, few, if any, were convinced that the Constitution they had approved outlined the ideal form of government for the country. But late in his life James Madison scrawled out another letter, one never addressed. In it he declared that no government can be perfect, and "that which is the least imperfect is therefore the best government."

The Document Enshrined

The fate of the United States Constitution after its signing on September 17, 1787, can be contrasted sharply to the travels and physical abuse of America's other great parchment, the Declaration of Independence . As the Continental Congress, during the years of the revolutionary war, scurried from town to town, the rolled-up Declaration was carried along. After the formation of the new government under the Constitution, the one-page Declaration, eminently suited for display purposes, graced the walls of various government buildings in Washington, exposing it to prolonged damaging sunlight. It was also subjected to the work of early calligraphers responding to a demand for reproductions of the revered document. As any visitor to the National Archives can readily observe, the early treatment of the now barely legible Declaration took a disastrous toll. The Constitution, in excellent physical condition after more than 200 years, has enjoyed a more serene existence. By 1796 the Constitution was in the custody of the Department of State along with the Declaration and traveled with the federal government from New York to Philadelphia to Washington. Both documents were secretly moved to Leesburg, VA, before the imminent attack by the British on Washington in 1814. Following the war, the Constitution remained in the State Department while the Declaration continued its travels--to the Patent Office Building from 1841 to 1876, to Independence Hall in Philadelphia during the Centennial celebration, and back to Washington in 1877. On September 29, 1921, President Warren Harding issued an Executive order transferring the Constitution and the Declaration to the Library of Congress for preservation and exhibition. The next day Librarian of Congress Herbert Putnam, acting on authority of Secretary of State Charles Evans Hughes, carried the Constitution and the Declaration in a Model-T Ford truck to the library and placed them in his office safe until an appropriate exhibit area could be constructed. The documents were officially put on display at a ceremony in the library on February 28, 1924. On February 20, 1933, at the laying of the cornerstone of the future National Archives Building, President Herbert Hoover remarked, "There will be aggregated here the most sacred documents of our history--the originals of the Declaration of Independence and of the Constitution of the United States." The two documents however, were not immediately transferred to the Archives. During World War II both were moved from the library to Fort Knox for protection and returned to the library in 1944. It was not until successful negotiations were completed between Librarian of Congress Luther Evans and Archivist of the United States Wayne Grover that the transfer to the National Archives was finally accomplished by special direction of the Joint Congressional Committee on the Library.

On December 13, 1952, the Constitution and the Declaration were placed in helium-filled cases, enclosed in wooden crates, laid on mattresses in an armored Marine Corps personnel carrier, and escorted by ceremonial troops, two tanks, and four servicemen carrying submachine guns down Pennsylvania and Constitution avenues to the National Archives. Two days later, President Harry Truman declared at a formal ceremony in the Archives Exhibition Hall.

"We are engaged here today in a symbolic act. We are enshrining these documents for future ages. This magnificent hall has been constructed to exhibit them, and the vault beneath, that we have built to protect them, is as safe from destruction as anything that the wit of modern man can devise. All this is an honorable effort, based upon reverence for the great past, and our generation can take just pride in it."

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Fall 2024 symposium, democracy without trust.

This two-day symposium, brought together by the Nebraska Law Review, is a platform for timely and informed discussion, collaboration, and exchanges of ideas between law professors, researchers, attorneys, and public servants to explore the ways previously stabilizing institutions moderated extremism in our democracy. This symposium will examine the role institutions have played in supporting a stable democracy, how these institutions have lost the trust of large parts of the public on both the political right and left, and if there are potential solutions to rebuilding trust or the consequences of failing to do so.

*** REGISTER HERE ***

Keynote Address Thursday, Sept. 12, 2024 6:00 - 7:30 p.m. Hamann Auditorium

Panel Discussions Friday, Sept. 13, 2024  9 a.m. - 3 p.m. Hamann Auditorium

The Nebraska Law Review anticipates getting approval from the Nebraska State Bar Association for 1 hour of CLE credit for the Thursday keynote address and each of three panels Friday. An attorney attending the entire event could anticipate receiving 4 hours of CLE credit.

Keynote Address by Professor Miriam Seifter

Panel discussions, panel 1: what are the traditional "stabilizing institutions" in a democracy, panel 2: how those institutions have lost trust on the political right and left, and why that loss of trust is destabilizing for democracy, panel 3: solutions for rebuilding trust in stabilizing institutions, and the consequences of failing to do so.

Biographies

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For those with UNL permits , parking is available in lots C (south of McCollum Hall) or A (north of McCollum Hall).

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David Earl , Symposium Editor, Nebraska Law Review Jackson Billings , Editor in Chief, Nebraska Law Review

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The Morning

Ukraine’s surprise attack.

We explore why Ukraine is trying a new tactic two years into a stalemate with Russia.

By German Lopez

Ukraine’s efforts to retake territory from Russia have stalled. But the Ukrainian military has tried to get back at Moscow in other ways. In the past, it has launched drone attacks in Russia and backed hit-and-run incursions in which Russian exiles struck targets inside their former homeland.

Last week, Ukraine tried something new. Its own forces marched miles across the Russian border in a surprise operation. They now control some Russian land in the region of Kursk, including dozens of towns and villages. “It’s an attempt to give Russia somewhat of a shock,” my colleague Eric Schmitt, who covers national security, told me. “It could give Ukraine a win, or at least make them feel good for a few days. Does it change the larger calculus on the battlefield? That remains to be seen.”

Ukraine's incursion

Soldiers have pushed several miles into Russia's Kursk region,

Ukraine’s leaders are seeking to galvanize support at home and abroad for its war effort. An assault on Russian soil might not get Ukraine closer to seizing all of the land it has lost, but it shows that Ukraine can still surprise — and embarrass — its enemy.

Today’s newsletter explains why Ukraine is trying a new tactic two years into a stalemate with Russia.

Potential upside

What does Ukraine stand to gain from its latest attack? Analysts and officials have pointed to a few possibilities:

Ukraine wants to divert Russian troops from strategic locations. If the Kremlin moves soldiers from battlefields in northeastern, eastern or southern Ukraine to defend itself at home, Ukraine might have an easier time retaking its own land. Russia currently controls about 20 percent of Ukraine, and Ukrainian leaders say they want to retake all of it.

Morale at home has declined. Ukraine’s last big counteroffensive success came in the fall of 2022, when its military retook the northeastern region of Kharkiv. Meanwhile, soldiers continue to die, and civilians endure regular bombardments. Russia has taken bits of land in Ukraine’s east and northeast. The economy remains weak. A major strike could help rebuild domestic confidence in the war effort.

Ukraine wants to shore up support abroad. Kyiv has relied on aid from Western nations to defend itself. But voters in those countries are no longer as enthusiastic about supplying Ukraine with weapons. Some leaders, including Donald Trump, have suggested they want to cut off the aid. A battlefield victory against Russia, even if it’s not strategically important, could get skittish supporters back on board.

Ukraine wants to convince Washington that it can strike within Russia. American officials have barred Ukraine from using U.S.-made weapons to strike too deep into Russian territory. They worry that such an attack could lead Russia to act more recklessly. But if the current incursion doesn’t lead to an escalation, American officials may allow future Ukrainian salvos farther across the border.

Will any of this work? Some analysts are skeptical. Russia’s military drastically outnumbers Ukraine’s. Moscow still has reserves of conscripts that it has not deployed in the war, so it might not need to divert troops from strategic locations to reinforce its borders. And the intended audience for this new move — in Ukraine and abroad — may not see much value if it doesn’t help Ukraine win back its territory.

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