The purpose of The Federalist Papers was to make the general case for a stronger national government and urge the ratification of the Constitution drafted during the Constitutional Convention held at Philadelphia in 1787. The 85 essays that comprise The Federalist Papers were published in New York City newspapers in a piecemeal fashion between October 1787 and April 1788, while the ratification debate over the new Constitution was taking place in the 13 states. They were written with the specific purpose of building public support for the state of New York to ratify the plan of government.
(Shortform note: Historians are unclear as to what impact The Federalist Papers had on the ratification of the Constitution. New York’s constitutional convention did vote to ratify, but it was the 11th state to do so—the Constitution had only needed the approval of nine states to become law, thus making New York’s vote largely symbolic. Moreover, New York’s convention only approved the Constitution by a razor-thin 30-27 margin, indicating that The Federalist Papers failed to significantly move public opinion at the time, even in the state where they were most heavily published. Outside of New York, they were hardly published at all, further calling into question their effect. Nevertheless, they stand as an important analysis of the merits of the Constitution and are widely regarded as essential reading for those interested in the history of American governance.)
We’ll take a thematic approach to The Federalist Papers, exploring:
The ratification of the Constitution was essential to the preservation of the Union. This was important, because the prosperity and freedom of the American people depended upon the continuance of the Union. The country had always been linked by a generally shared political and cultural connection to a common British heritage, similar political institutions between the colonies, and a high degree of economic interdependence (aided by North America’s navigable rivers, which boosted commerce).
Unfortunately, the Articles of Confederation, the plan of government in place at the time of the ratification debate, had proven utterly disastrous for the Union. The Articles of Confederation created a highly decentralized structure and weak central government that rendered the nation powerless to act in the face of both internal and external threats. Unless they were scrapped entirely, the Union threatened to break apart.
If the Union dissolved, it would be replaced by petty, rival confederacies, each vying against one another for the vast resources of the North American continent. Inevitably, this would lead to a state of permanent warfare—which, in turn, would lead to the creation of permanent standing armies in each state, something that Americans feared would be destructive of the liberties they held so dear. Dissolution, in short, would represent the death of the young nation and the failure of the republican experiment. To forestall this possibility, the only option was to ratify the Constitution and create a stronger, more durable Union.
A Union, bound together by a strong national government, would be far less likely to start external wars with its neighbors than would a series of small states or confederations of states. This was because smaller confederations would each be pursuing their own interests and independent policies. Unconstrained by the steadying hand of a unifying federal government, they would be free to act aggressively toward other nations, provoking more wars.
The danger went the other way as well—foreign powers would be more easily able to exploit weak confederations that were not supported by a strong federal government. Such confederations would lack the financial resources to levy armies and navies to prevent or turn back the aggressive actions of other countries. Moreover, states or confederations would have little reason to aid their neighbors in a war against a foreign power, because they would barely be part of the same political nation. Thus, unity was crucial to national defense, prosperity, and the protection of liberty.
A large and strong Union, comprising all the states, was the best remedy against the dangers of factionalism. A faction is any group of citizens, whether they constitute a majority or a minority, who seek to advance their interests and passions without regard to the rights and interests of others.
In a republic, decisions are made by representatives meeting in a designated capital, not by the people themselves in person. Therefore, popular passions are filtered through and tempered by more sober-minded representatives, making it harder for any single faction to achieve dominant status.
A large and populous country like the United States would be safer from tyrannical factions within the Union than it would be if it were split into a number of petty confederacies. Even if a faction seized control in one of the states, the largeness of the Union would make it difficult for it to extend that domination over the other states, let alone all of them. The size of the political community itself limited the spread of the political contagion.
Disunion would also have harmful effects on the economy. For example, there would be no effective mechanism for paying back or apportioning the debt that the Union and the individual states had accrued during the Revolutionary War. If the states were only joined in a loose league rather than a compact union, the individual states would be extremely reluctant to contribute money to help pay the debts of other states. This would have a harmful effect on the establishment of strong national credit and depress trade.
By enabling the United States to act with a unified commercial policy, the Union would give the nation greater leverage in its economic relations with other countries and enable it to secure more favorable terms of trade.
A strong Union would also provide better and more efficient means of revenue collection than would a series of independent or semi-independent states. Merchants would have to contend with only one customs regime, rather than 13, which would stimulate trade. This stimulation of trade would further enhance revenue for the federal government.
The preservation of the Union was crucial for the security, liberty, and prosperity of the American people. But maintaining the Articles of Confederation was totally at odds with the goal of preserving that Union.
As a confederacy, the Articles of Confederation created an association of independent states. It was an inherently unstable and weak form of government. The central government lacked the strength to perform important functions like raising an army, administering justice, collecting revenue, or regulating coinage, because the individual states were too powerful and could block any initiative.
The principal weakness of the Articles was one rooted in these general weaknesses that afflict all confederacies—the central government could act upon the states of which it was composed, but not upon the actual people of those states. The states, not the people, were the fundamental political units.
This is an important distinction. It meant that the federal government, acting through Congress, could pass legislation requiring the states to furnish money or manpower to meet some emergency. But it was left entirely to the states to actually marshall those resources from their citizens. This effectively gave each state total discretion as to whether or not they would comply.
Another defect of the Articles of Confederation was that they gave equal representation to the 13 states in Congress, regardless of population. While this was intended to protect the smaller states, it paradoxically led to the tyranny and domineering influence of the smaller states.
States representing a small minority of the overall population of the country had effective veto power over national legislation. This was rendered worse by the fact that any legislation required the consent of a supermajority of nine states. Having a minority exert its will over the majority was inimical to the republican values for which the Revolution had been waged. The nation was unable to act as a unified state in key policy matters, constantly subject to the demands and whims of a vocal minority.
Having already established the failures of the old system of government, we can now pivot to an analysis of the principles of the new Constitution. The new government had specific powers with regard to:
A core principle held by the Framers of the new Constitution was that it wasn’t enough to merely grant powers to the federal government on paper. The new government needed to have the authority to make laws and enforce provisions that would enable it to effectively exert those powers.
The most important purpose of any government is to secure peace and protect its people from internal and external threats. Accordingly, the federal government under the Constitution would have the power to raise and equip a standing army—the only way the US could survive in the face of threats from European powers.
Standing armies under the Constitution would not become agents of tyranny because they could only be raised by the legislative—not the executive—branch. Thus, the people’s representatives (the legislative branch) would retain control and prevent the creation of a permanent military establishment.
The management of public finances is another core function of any government. Under the Articles, the federal government only had a few direct revenue streams, like taxes on imported goods. This left the government unable to meet basic fiscal obligations and led to rising costs in the financing of the national debt and a collapse in public confidence. Because it acted directly on individuals, not states, the new Constitution gave the government powers of direct taxation. Thus, it could directly assess taxes on land and people, without relying on the states as intermediaries.
Giving the federal government the power of direct taxation would also be good for the broader economy. If the federal government had to rely solely on customs duties and excise taxes (taxes paid by manufacturers and incorporated into the final price of the product paid by consumers) for its revenue, it would have to tax these items at an extraordinary rate. Giving the federal government a broad tax base would encourage modest tax rates, which would be good for both producers and consumers.
The Constitution greatly simplified the economic relationships between the states by granting the federal government the sole authority to unilaterally impose tariffs and duties on imports. Thus, states could no longer (without the consent of Congress) put tariffs on imports from other states.
To further stimulate interstate commerce, Congress was also given the sole authority to coin money and issue paper notes of legal tender, establish post roads, set uniform standards of weights and measures, further rationalizing and harmonizing trade between the states, and create national rules for naturalization.
The Necessary and Proper Clause of the Constitution states that Congress has the power to enact all “necessary and proper” laws to enforce the powers it is granted. Some critics of the Constitution alleged that this language gave Congress a blank check to pass any laws it wished. But these objections were rooted in a misunderstanding of the purposes of drafting a Constitution in the first place—it would have been nonsensical to create a plan for a government and assign to it specific powers without giving it the means to enforce those powers.
The Supremacy Clause made federal law the supreme law of the land—superseding state law (and requiring even state officials to swear an oath of allegiance to the Constitution). A national government that was unable to exercise supremacy over its constituent members was not a national government at all; it was merely a voluntary treaty or association, vulnerable to dissolution by any of the parties to it.
The new government balanced the priorities of national government (a central government with the necessary authority to act directly on the people) and federal government (a system in which the central government shares powers with subordinate government).
Indeed, the states would play a key role. The Senate would be elected by the state legislatures. And in assigning every state equal representation in the Senate regardless of population, the Constitution preserved a key federal feature of the old Articles of Confederation. The Electoral College, meanwhile, guaranteed that the president would not be chosen in a national election that treated the states as non-entities. The states were the elemental unit in the Electoral College, with each state receiving electoral votes equal to its combined number of representatives and senators.
Thus, the states did not just passively accept their status under the Constitution; they would play an active role in shaping the nature of the Union itself.
Having outlined the general principles of the new Constitution, we can now look at the structure of the federal government itself, exploring:
All constitutional forms of government have three branches:
A basic principle of republicanism is that the executive, legislative, and judicial functions must remain separate. Critics of the new Constitution argued that its provisions for the separation of powers were too weak and that the result would be a corrupt despotism.
But instead of striving for complete separation of powers (which was an impossibility), it was far more important to imbue the Constitution with the principle of checks and balances.
The new Constitution was well-designed with a robust system of checks and balances to ensure that the branches remained coequal, that none reigned supreme over the others, and that each had the means to hold the others in check.
There are few eligibility requirements for election to the House. A member merely needs to:
Beyond these requirements, anyone is eligible to run and serve (although the House retains the right to expel members by a two-thirds vote). Members of the House were to be directly elected to two-year terms by the voters of the state, with voters meeting the same eligibility requirements that they did for state legislative elections.
Because apportionment in the House was to be determined by state population, the larger states would naturally hold sway.
It was to have sole authority to impeach members of the executive branch, including the president, for high crimes and misdemeanors—a crucial check on executive power.
The Senate is the upper chamber of the national legislature. Unlike the House, its members must be 30 years of age and have been citizens of the United States for nine years prior to their election. Thus, senators would tend to be older, more experienced, and have greater familiarity with the laws and customs of the United States than their counterparts in the House.
Senators were to serve six-year terms and be elected by the state legislatures—not by the people themselves. Each state was to have two senators, regardless of population. Naturally, the Senate conferred an advantage on smaller states, who received disproportional representation in the upper chamber relative to their actual number of voters.
The Senate was designed to temper the more dangerous democratic impulses of the House. This was because its members were fewer, they were not elected directly by the people, and their terms in office would be longer. This would prevent them from being susceptible to democratic political pressures.
(Shortform note: The system of having state legislatures elect senators had become rife with corruption by the late-19th century, with scandalous incidents of Senate seats being openly bought and sold. Moreover, the political polarization of the time had frequently resulted in state legislatures failing to come to agreement on elections to the Senate. This resulted in many Senate seats going unfilled, leaving states without representation in the upper chamber of Congress. The Seventeenth Amendment to the Constitution, ratified in 1913, finally ended senatorial election by state legislatures, mandating instead that senators be directly elected by the voters of their states.)
The Senate, as the upper chamber, was designated with certain special privileges. One of the most important of these was its sole prerogative, via a two-thirds vote, to ratify treaties negotiated and submitted to it by the President. The Senate would also be responsible for approving all cabinet appointments submitted by the president. These were both powerful checks on the executive branch.
Another, arguably more important check on the power of the executive branch was the Senate’s sole authority to convict members of the executive (including the president) for high crimes and misdemeanors by a two-thirds vote, following impeachment in the House.
The presidency, the chief executive of the federal government, was perhaps the most controversial and hotly contested feature of the Constitution. The president would have the power to:
Anti-Federalist critics argued that these powers rendered the office tantamount to a monarch. But, in reality, the office’s authority was heavily restricted by the provisions of the Constitution. The president’s veto could be overridden by a two-thirds majority vote in each house of Congress; treaties and executive appointments required Senate approval; he could not pardon offenders who’d been impeached; and he could not declare war or raise funds for an army without Congress.
The third branch of government, the judiciary, is unique. Unlike the executive branch, it possesses no army, navy, or other powers of enforcement to compel adherence to its decisions. Unlike the legislature, it has no direct power of the purse.
Instead, the way that the federal courts exercise this power is through judicial review. This is the power of the courts to declare null and void those laws or executive orders that are in violation of the Constitution. Judicial review serves as a powerful check on both the executive and legislative branches. While courts generally do not have many formal powers to enforce their rulings, Congress and the president have historically complied with court orders, even when they disagreed with them.
Given its crucial function, and judges’ comparative lack of enforcement power, it was important that the judiciary be independent from the executive and legislative branches. To ensure this, judges were to serve for life, provided that they maintained “good behavior” on the bench. There were good reasons for this. Judges were meant to make their rulings solely on the Constitution, not for political considerations. If they had to be renominated and re-confirmed, they might feel the need to curry favor with Congress and the president, which could exert a corrupting influence on their jurisprudence.
The highest court in the land was to be the United States Supreme Court. In the main, the Supreme Court acted as an appellate court—issuing final rulings (for those cases it chose to hear) on cases that had worked their way through the inferior federal courts. The only cases where the Supreme Court would have original jurisdiction would be cases involving ambassadors or cases in which a state was a party to a suit.
One of the primary objections to the Constitution was that it contained no bill of rights. The Federalist Papers, however, argued that a Bill of Rights was entirely unnecessary. The Constitution already guaranteed the liberties that such a bill would plausibly contain:
In short, The Federalist Papers outline a plan of government that promised to be far superior to the Articles of Confederation. The new Constitution aimed to create a stronger bond between the states, lay the foundation for national prosperity, establish a strong national defense, create a more efficient and energetic national administration, and safeguard the liberties of the states and the people.
Inevitably, future generations of Americans would see the need to update the Constitution to meet new challenges. The Framers could not anticipate what these needs and challenges would be, but they created a process by which the Constitution could be amended.
But The Federalist Papers cautioned against hasty changes. It was prudent, instead, to let the merits of the new plan of government reveal themselves over time. Time and experience would prove the wisdom and effectiveness of the new, supreme law of the land.
The purpose of The Federalist Papers was to make the general case for a stronger national government and urge the ratification of the Constitution drafted during the Constitutional Convention held at Philadelphia in 1787. The 85 essays that comprise The Federalist Papers were published in New York City newspapers in a piecemeal fashion between October 1787 and April 1788, while the ratification debate over the new Constitution was taking place in the 13 states.
(Shortform note: Historians are unclear as to what impact The Federalist Papers had on the ratification of the Constitution. New York’s constitutional convention did vote to ratify, but it was the 11th state to do so—the Constitution had only needed nine states to ratify it for it to become law, thus making New York’s vote largely symbolic. Moreover, New York’s convention only approved the Constitution by a razor-thin 30-27 margin, indicating that The Federalist Papers failed to significantly move public opinion, even in the state where they were most heavily published. Outside of New York, they were hardly published at all, further calling into question their effect.
Nevertheless, they stand as an important analysis of the merits of the Constitution and are widely regarded as essential reading for those interested in the history of American governance.)
They are perhaps our best window into the minds of the men who drafted the Constitution and founded the United States. By reading The Federalist Papers, we gain important insight into what the Founding Fathers thought about human nature, civil society, and the relationship between government and liberty.
The framers of the Constitution had a pragmatic, if somewhat negative view of human nature. They believed that people were prone to selfishness and ambition, and that power had a universal tendency to corrupt even the most virtuous individuals. People were by their nature flawed; if they had been perfect, there would be no need for a government to restrain their worst impulses.
Accordingly, they wanted to construct a government that took this view of human nature into account. The structure of the new federal government would be based in laws and political institutions, instead of relying upon the virtue and upright conduct of individuals. These laws and political institutions would be designed to channel the natural tendencies to ambition, self-interest, and faction toward ends that would benefit society as a whole.
Any proper analysis of The Federalist Papers must, of course, take into account the historical context in which they were written. The Articles of Confederation, the national legal framework for the Union prior to the adoption of the Constitution, had proven to be a failure:
States had too much power relative to the federal government. As we’ll see, the Articles only acted upon the states in their collective capacities, not upon the actual people of the states. Thus, it was not really a proper national government, but, rather, a loose and ramshackle collection of semi-independent sovereign states. The national government merely presided over this collection of independent states, but exerted no control over them.
The government under the Articles was unable to perform basic functions like:
Moreover, the equal representation of the states in Congress (regardless of population) gave small states disproportionate political power. They could block the passage of legislation on important national priorities for parochial and self-interested reasons.
The weak design of the Articles of Confederation was no accident. Americans at the time greatly feared a strong central government, a legacy of their opposition to King George III and their reading of recent British and American history. They believed that a strong central government, like the monarchical system of Great Britain, would trample upon the liberties they’d fought to secure.
The authors of The Federalist Papers needed to overcome this ingrained political opposition to a strong Union between the states. Alexander Hamilton, James Madison, and John Jay (writing under the collective pseudonym “Publius”) used The Federalist Papers to make the opposite case: that a strong national government was not a threat to liberty; in fact, it was its greatest guarantor.
In this summary, we’ll take a thematic approach to The Federalist Papers, exploring:
The essays that comprise The Federalist Papers were published under the collective pseudonym of “Publius.” Most readers at the time of publication did not know who the authors were or who wrote which of the essays.
While historians are still not completely certain about the authorship of each essay (and it has long been a subject of dispute in the academic community), there is a general scholarly consensus for the following attribution:
In this summary, we have referred to the authors under the original, collective pseudonym. Furthermore, we have grouped the essays thematically, sometimes merging two or several essays under one section. Again, to enhance readability, we did not create individual sections for each of the 85 essays. We have, however, indicated which essays are summarized in the title of each chapter.
The adoption of the proposed Constitution was necessary for the preservation of the Union and the safeguarding of the liberties won during the Revolutionary War. Indeed, the successful ratification of the Constitution was a great moral and philosophical test for the young nation. Crucial questions hung in the balance. Were human beings capable of designing a government that properly protected liberties and promoted national welfare? Or were they destined to devolve into despotism and disunion?
While the opponents of the Constitution may have been motivated by genuine conviction, they were wrong to fear that the strong central government it sought to establish would, by definition, infringe upon their liberties. Instead, historical experience had shown that it was the lack of a strong government that posed the greatest threat to human freedom.
In this section, we will explore why the preservation of the Union was so important—and why the Constitution was the best way to maintain it.
The prosperity and freedom of the American people depended upon the continuance of the Union. Surprisingly, however, many politicians were questioning the usefulness of political unity in the years after independence. But this skepticism flew in the face of the American historical experience.
The country had always been linked by a generally shared political and cultural connection to a common British heritage, similar political institutions between the colonies, and a high degree of economic interdependence (aided by North America’s navigable rivers, which boosted commerce). Moreover, it was only through military and political cooperation that the colonies had been able to win the war and free themselves from the oppression of the British crown.
In short, the Union had been the truest safeguard of American liberties in the past; it would continue to be so in the future. The only alternative to the Union was political dissolution into rival confederacies of states, which would represent the death of the young nation and the failure of the republican experiment.
To see why the Union was so vital, let’s examine its role in enabling the government to fulfill one of its most elemental functions—securing the safety of its citizens. The Union, bound together by a strong national government, was far less likely to start wars than small states or confederations of states.
This was because smaller confederations would each be pursuing their own interests and independent policies. Unconstrained by the steadying hand of a unifying federal government, they would be free to act aggressively toward other nations, provoking more wars.
This was no mere thought experiment. Overzealous states had already put the nation at risk by provoking conflicts with the Native Americans. Indeed, the majority of armed skirmishes between white settlers and Native Americans had been at the instigation of individual states—not the national government (feeble as it was under the Articles of Confederation). This danger of warfare remained high, considering that many states shared land borders with French, British, and Spanish territory.
Of course, the danger went the other way as well—foreign powers would be more easily able to exploit weak confederations that were not supported by a strong federal government. Such confederations would lack the financial resources to levy armies and navies to prevent or turn back the aggressive actions of other countries. Moreover, states or confederations would have little reason to aid their neighbors in a war against a foreign power, because they would barely be part of the same political nation. Foreign nations, of course, would be well aware of this state of disunity and would eagerly seek to exploit it by playing the rival confederacies against one another—creating more conditions for war.
Thus, unity was crucial to national defense, prosperity, and the protection of liberty. As a historical parallel, Great Britain would never have become a world power if its military and financial resources had remained divided between the constituent nations of England, Scotland, and Wales. A national government would be able to better provide for the national defense, because it would have the resources to combine the various state militias, levy a national army, and collect the revenue to maintain a strong navy to protect American commerce on the high seas. These would act as deterrents, preventing other nations from behaving aggressively toward the United States.
A national government would also be more cautious and broad-minded in its conduct toward other nations because it would be less beholden to local interests and parties than the states. It would be able to act with more singular purpose and adequately defend all the states, thereby reducing the likelihood of war for each of them.
There was no reason to believe, as many opponents of the Constitution did, that a commercial republic like the United States would be less prone to foreign wars than a monarchy. Republics, because they contain representative institutions, are liable to be driven to acts of aggression when the people become impassioned by some perceived slight against them; and commercial rivalry had historically been just as much a cause of war as had royal vanity.
Indeed, commercial republics like the Netherlands, Venice, and even ancient Athens had been constantly at war with their neighbors. In a disunited America, mutually hostile confederations would inevitably come to seek the aid of foreign powers in order to secure advantage over their rivals. They might even invite foreign armies to land on American soil to defeat their neighbors. Thus, America would become like Europe—a war-torn continent of competing nations, each meddling in the others’ internal affairs.
The states themselves, if split into confederations, would devolve into mutual hostilities, particularly as some would inevitably grow to be stronger and more powerful than others. If history was any guide, they would quickly find themselves in competition with one another for scarce resources and resort to warfare.
If the Union were dissolved, the vast tracts of western lands, subject to competing claims by the states, would rapidly become the focus of war. History again showed that territorial disputes were one of the main causes of conflict. Publius did not have to imagine such a scenario taking place in North America—it was already happening, with hotly contested disputes between New York and the states of New England over land in what later became the state of Vermont.
The proponents of disunion feared the encroachments of strong central government, most dreadfully represented by the institution of standing armies. But disunion wouldn’t prevent the formation of standing armies—in fact, it would all but guarantee it.
If the Union were to devolve into a smaller set of rival confederacies, each of those confederacies would be faced with the constant threat of military encroachment by the others. Under such circumstances, it would become necessary for each of them to raise standing armies, to be ready to defend their nation at a moment’s notice. This would again transform America into something like continental Europe—a political landscape marked by a series of heavily armed kingdoms and petty republics, where the soldier was elevated above the citizen. This development would naturally be dangerous to republican values.
By contrast, a strong Union would have no need to maintain a large standing army. It would not face internal threats, and the physical distance from Europe and its colonies would likewise make external threats unlikely. Local militias, run by free citizens, would be sufficient to maintain order.
A strong federal government would also have better resources to build and equip a navy. The navy would bring an economic stimulus to the states that provided the materials and labor for its construction.
In addition, it would serve to protect American merchant seamen from the privations of European navies on the high seas, who often treated American cargo ships as objects of plunder.
A large and strong Union, comprising all the states, was the best remedy against the dangers of factionalism. A faction is any group of citizens, whether they constitute a majority or a minority, who seek to advance their interests and passions without regard to the rights and interests of others.
Any republican form of government, of course, would give rise to factions, because factions are a natural by-product of human nature. They spring from the innumerable sources of division between groups of people in a society, like language, geography, or religion. One of the main sources of division is wealth and property—between those who have them and those who don’t. The haves will always seek to preserve what they have; the have-nots will always aim to acquire what they don’t have. The only way to entirely remove factions from public life would be to remove liberty and free government entirely, something that would be antithetical to the principles upon which the nation was founded.
Given the unavoidable nature of factions in a republican system of government, it was better to look for ways to control and minimize their most harmful effects. One of the best ways to illustrate how to do this is to compare the operations of a direct democracy with those of a representative republic.
A direct democracy, in which the people themselves meet in person to make political decisions, is only practicable in small communities. Because of this smallness, however, a majority faction will likely come to dominate, trampling upon the liberties of the minority.
A republic, by contrast, can work successfully over a larger geographical area comprising a larger number of people. This is because decisions are made by representatives meeting in a designated capital, not by the people themselves in person. In a republic, popular passions are filtered through and tempered by more sober-minded representatives, making it harder for any single faction to achieve dominant status.
Moreover, representatives in a large republic have to take into account the views of a more diverse set of citizens, further making it unlikely that a single faction will come to dominate the society.
This logic extended to the Union created by the proposed Constitution. A large and populous country like the United States would be safer from tyrannical factions within the Union than it would be if it were split into a number of petty confederacies.
Even if a faction seized control in one of the states, the largeness of the Union would make it difficult for it to extend that domination over other states, let alone all of them. The size of the political community itself limited the spread of the political contagion.
Every state and every citizen stood to gain from joining together in a strong federal government. With many states bordering on what were then foreign lands, they would be better protected if they were part of the Union. Moreover, the American people had more that united them than divided them. As majority Western European Protestants, they mostly shared a common language, ancestry, and religion. Furthermore, they shared the heritage of struggle and sacrifice during the Revolution. These were the ties that would strongly bind the young nation together.
Disunion would also have harmful effects on the economy. Rich states like New York would be able to extract extortionary customs duties and fees on their smaller and weaker neighbors like Connecticut and New Jersey, inhibiting commerce between states.
There would also be no effective mechanism for paying back or apportioning the national debt. If the states were only joined in a loose league rather than a compact union, the individual states would be extremely reluctant to contribute money to help pay the debts of other states.
This would be especially true considering the fact that any apportionment of the national debt among the states of the confederacy would be unequal. The highly indebted states would be clamoring to offload their debt onto the others; the less-indebted states would be unwilling to contribute money to help the others. As a result, debts would go into default. This would have a harmful effect on the establishment of strong national credit.
A strong Union, by contrast, would enhance trade both between the states and between the United States and other nations.
Under the Union, the states would not be able to place restrictions on each other’s goods, boosting free trade. Scarcities of a commodity in one state would be remedied by its residents being able to purchase that commodity from another state that had it in abundance.
By enabling the United States to act with a unified commercial policy, the Union would also give the nation greater leverage in its economic relations with other countries and enable it to secure more favorable terms of trade. For example, if it were acting as a single entity, the United States could credibly threaten to block British access to American markets unless the British government allowed American merchant seamen access to British markets on favorable terms. But in a state of disunion, this would be impossible. European colonial powers would always be able to undercut any of the states or confederacies in trade by playing them against one another.
A strong Union would also provide better and more efficient means of revenue collection than would a series of independent or semi-independent states. Given the difficulty and cost of assessing and collecting direct taxes (like income taxes) in the 18th century, most states raised revenue from indirect taxes, mainly in the form of duties on imported goods.
But if each of the 13 states were independent, they would each be levying their own customs duties. This would be burdensome for merchants and would give strong incentive for evasion. Moreover, the sheer size of the land borders between states, the existence of a common language, and the availability of navigable rivers would make it far too easy for merchants to evade state customs duties. Therefore, even if each state spent extraordinary (and duplicative) resources to crack down on this contraband trade, they would still only apprehend a small number of illegal traders and remain perpetually short of crucial revenue.
By contrast, a strong federal government would only need to patrol goods coming into the country from Europe via the Atlantic Ocean. This would be a much simpler task that could be done with a minimal amount of force and at much less expense. Merchants would thus have to contend with only one customs regime, rather than 13, which would stimulate trade. This stimulation of trade would further enhance revenue for the federal government.
In the last chapter, we made the case for the preservation of the Union, illustrating why it was crucial for the security, liberty, and prosperity of the American people.
In this chapter, we will analyze why maintaining the Articles of Confederation was totally at odds with the goal of preserving that Union. To do this, we will need to explore the specific weaknesses of the Articles and why Publius believed it was necessary to scrap them entirely and replace them with the new United States Constitution.
A confederacy is an association of independent states or political communities. They are an inherently unstable and weak form of government. Under a confederacy, the overarching state tends to lack the proper authority to perform important central functions like raising an army, administering justice, collecting revenue, or regulating coinage, because its constituent members are too powerful and can block any initiative.
The weak central government is only held together because the constituent states are also too weak to exist on their own as independent nations. This leaves the entire confederacy vulnerable to civil war and outside invasion.
This is precisely what plagued 18th-century confederacies like the Holy Roman Empire (consisting of large parts of what is now Germany). A ramshackle polity made up of competing and disunited principalities, duchies, and baronies, the Holy Roman Empire was a scene of constant warfare and strife, largely because of its flawed constitutional design.
Opponents of a strong federal government often made the argument that it would trample upon the rights of state and local governments. But Publius made the opposite case—that the states were more likely to infringe upon the federal government, not the other way around. This was because the people would naturally feel more closely connected and loyal to their state governments, owing to their physical proximity and shared history and experiences—just as an individual is more connected to her family than she is to her community at large. In any conflict between a state and the federal government, the state was likely to have the majority on its side.
Historically, the only way that confederacies have overcome this tendency to split apart is when local governments become so oppressive to the people that the latter unite with the higher central authority to overthrow them.
During the Age of Feudalism in Europe’s Middle Ages, the local aristocracy was frequently more powerful than the monarch and, therefore, had greater ability to exploit the peasantry. Successful monarchs were only able to break the backs of the nobility by tapping into this rich source of discontent and allying with the peasants.
Unfortunately for Americans living under the Articles of Confederation, the historical evidence showed that confederacies were likely to result in dissolution and chaos.
The city-states of ancient Greece often banded together in leagues, usually to protect themselves against foreign threats. Two such leagues were the Amphictyonic League and the Achaean League. Although the city-states in these leagues had nominally equal status, the larger and more powerful ones like Athens inevitably came to occupy a dominant position within the confederation.
Because of their independence, the cities had few interests in common and proved unwilling to come to one another’s defense or contribute funds for the common good. Foreign powers like Macedon, Persia, and Rome exploited these divisions, resulting in conquest, annexation, and the destruction of ancient Greek liberty.
These disastrous results were a direct result of the weak central structure of the leagues, which delegated too much power to the individual cities and gave the league itself no enforcement mechanisms to bring recalcitrant members to heel. Publius warned that the same fate could befall the United States if the Articles of Confederation weren’t scrapped and replaced with a stronger framework for national government.
The principal weakness of the Articles was one rooted in these general weaknesses that afflict all confederacies—the central government could act upon the states of which it was composed, but not upon the actual people of those states. The states, not the people, were the fundamental political units.
This is an important distinction. It meant that the federal government, acting through Congress, could pass legislation requiring the states to furnish money or manpower to meet some emergency. But it was left entirely to the states to actually marshall those resources from their citizens.
This effectively gave each state total discretion as to whether or not they would comply. In this sense, the Articles created something more akin to a league or assembly of independent states acting together on a voluntary basis than an actual unified polity. Under the Articles, the only way a state could have been compelled to action would have been for the other states to agree to raise an army and make war on it. Thus, the loose structure of the Articles was a recipe for civil war, chaos, and the ultimate destruction of the Union.
The only solution to this state of affairs was to adopt a new constitutional framework that would allow the federal government to enact laws that directly affected the people, not the states. That federal government also needed to have sufficient powers of enforcement.
Even if a state did choose to disregard federal authority under such a constitutional framework, there would be universal agreement that its actions were blatantly and undeniably illegal. The federal government would be better able to marshall the resources and manpower to put down such a rebellion, with many citizens of the rebellious state eagerly assisting in the suppression of such a clearly unconstitutional move by their state government.
Because the federal government would have the power to act directly on them, the people would feel a closer attachment to such a government than they did to that of the Articles. Citizens would be more apt to recognize that their rights were being violated by a rebellious state.
The Articles gave the federal government some formal powers over the states, but no effective means of compelling them to action. This rendered the federal government effectively toothless.
Revenue collection presented an especially glaring enforcement problem. The system established revenue quotas that each state was required to send to the federal government. But, given the lack of an agreed-upon standard for assessing and apportioning what each state owed and the inability of the federal government to enforce its quotas, the states frequently evaded their fiscal responsibilities. They often cited the arbitrary and unequal distribution of the fiscal burden as a pretext for withholding what they owed.
This had disastrous consequences during an episode known as Shays’ Rebellion, which rocked the state of Massachusetts in 1786-87. Economically discontented farmers in the western part of the state staged a violent action against the government, even seizing and burning down a state armory. But because of its inadequate revenue system, the federal government was unable to pay troops to put down the rebellion. Instead, the state of Massachusetts had to hire a private force to quell it.
The rebellion showed that the glaring defects of the Articles of Confederation could have disastrous real-world consequences.
Another defect of the Articles of Confederation was that they gave equal representation to the 13 states in Congress, regardless of population. While this was intended to protect the smaller states, it paradoxically led to the tyranny and domineering influence of the smaller states.
States representing a small minority of the overall population of the country had effective veto power over national legislation. This was rendered worse by the fact that any legislation required the consent of a supermajority of nine states. Having a minority exert its will over the majority was inimical to the republican values for which the Revolution had been waged.
Further, there were no provisions governing the population requirements of the future states that were certain to be carved out of the western territories. This uncertainty only threatened to make the situation worse.
Maintaining such a system would be counterproductive for the small states in the long run, as the large states wouldn’t long consent to being part of a system that so constrained their political power. After the large states left the Union, the smaller states wouldn’t be viable as political entities on their own—ironically, their disproportionate power was creating the conditions that made such a dissolution more likely.
All of this meant that the nation was unable to act as a unified state in key policy matters, constantly subject to the demands and whims of a vocal minority. This was a major flaw that highlighted the danger of treating states—not people—as the main political unit.
On a final note, the equal sovereignty of the states also made it impossible for the United States to conduct foreign policy. After all, there was no reason for foreign powers like Great Britain or France to enter into treaties with and thereby make concessions to the US when the individual states had the power to abrogate or undermine such treaties.
These countries knew that they could always secure more favorable terms by playing the states against one another. This inability to speak with one voice and act as one nation rendered early American diplomacy largely useless.
Think about the proper balance between state and federal power.
What did The Federalist Papers identify as the fundamental weakness of the Articles of Confederation?
Explain the practical differences between a government that has the power to act on states, versus one that has the power to act on individuals.
Why was the equal representation of the states under the Articles of Confederation problematic?
Having established the failures of the old system of government, we’ll use this chapter to outline the principles of the new Constitution that had been drafted at Philadelphia in 1787. In particular, we’ll analyze the specific purposes the new government was designed to achieve with regard to the core functions of national administration:
A core principle held by the framers of the new Constitution was that it wasn’t enough to merely grant powers to the federal government in the abstract; the Articles of Confederation had done that, to no effect. Rather, the new government needed to have the authority to make laws and enforce provisions that would enable it to effectively exert those powers. Without this, the Constitution would be worthless.
If the government was to be tasked with defending the nation and securing peace, it needed the power to raise an army; if it was to finance the public debt and secure public credit, it needed to have the requisite powers of taxation to do so. We will explore these and other powers of the new government in this chapter.
The most important purpose of any government is to secure peace and protect its people from internal and external threats. Therefore, maintaining armed forces is essential to the survival of a nation.
Accordingly, the federal government under the Constitution would have the power to raise and equip armed forces. This was vitally important for the young United States. Although separated from Europe by the Atlantic Ocean, the US maintained frontiers with the colonial possessions of Britain, France, and Spain, not to mention the Indian nations that frequently allied with these European powers. Given the mutual hostilities between these powers and their competition for the untapped resources of the American West, it was not inconceivable that these nations could combine to make war on the US.
The only way the US could survive was through the creation of a standing army. Given their experience with British occupation during the Revolutionary War, however, this was something about which Americans of the time had great apprehension.
But the creation of standing armies in peacetime was not something to be feared, nor had it ever been explicitly prohibited, either by the Articles of Confederation or by the state constitutions themselves. Provisions prohibiting the national legislature from raising an army in peacetime were foolish because they left the country vulnerable to attack. The country would only be able to respond with force after it had been subjected to an assault.
Standing armies under the Constitution would not become agents of tyranny because they could only be raised by the legislative—not the executive—branch. As the legislative branch would be composed of members popularly and periodically elected, this would ensure that the people’s representatives retained control and would prevent the creation of a permanent military establishment—something much feared by Americans of the time.
By placing this power in the hands of the House of Representatives and Senate (the two bodies of Congress, which we’ll explore in a later chapter), the Constitution would make it harder for a conspiracy to arise that would seek to use the military to overthrow the republic. Such a conspiracy would need to coordinate the actions of many representatives from many states, as well as the state legislatures, rather than just one supreme executive.
Moreover, the Constitution only allowed Congress to authorize military funds for a period of two years. As elected officials, members of both houses would be wary of provoking the anger of their constituents by voting for military appropriations when they were no longer necessary for defense.
As we explored in the previous chapter, it was the state governments that were more likely to threaten liberties, as they were more susceptible to takeover by a hostile faction. In this scenario, a national army that had sovereignty over all the people, regardless of their state, was the only instrument capable of putting down a petty state-based tyranny. But this would be impossible under a confederacy, in which states would be left almost entirely alone to manage their affairs.
The great extent of the country would further make it difficult for a national army to impose tyranny on the people. Likewise, the size of the country would make it difficult for a foreign power to invade and occupy it, which in and of itself, would reduce the need for a large standing army in the first place. But such a security could only be predicated on the continued survival of the Union—and the only way to secure that Union was through the adoption of the new Constitution.
State militias had proven inadequate to meet the national security needs of the country, as they were too loyal to their home jurisdictions and unwilling to serve in distant outposts. The poor performance of colonial militias during the Revolutionary War stood as a grim reminder of the dangers of relying upon such flimsy institutions for national defense.
Moreover, all states were not equally threatened. If national defense was left entirely to the states, larger states that had greater military needs would come to have large military establishments. These military establishments could, with time, become powerful enough to threaten the other states or the federal government itself.
A national standing army, by contrast, would serve wherever the need for it arose because it would be created by the federal government, loyal to and representing the entire nation. There would still be a role for militias to put down minor insurrections or incidents of civil unrest, but their officers would be appointed by the federal government and the men serving in them would also be formally trained by the federal government. This would turn them into more proficient fighting forces, better able to defend their states.
The people would have little to fear from such a well-regulated militia, because it would still be composed of their friends, neighbors, and fellow citizens. Given the highly parochial nature and inherently defensive character of militias, moreover, the men serving in them would be unlikely to ever consent to being deployed out-of-state for any circumstances or for any reason—which would make it extremely difficult for the federal government to transform the militias into instruments of national oppression.
The management of public finances is another core function of any government. As we explored in the previous chapter, the Articles of Confederation had failed badly on this score because they made federal revenue dependent on the fulfillment of quotas and requisitions of the state.
The federal government itself only had a few revenue streams, like imposts on imported goods, that it directly controlled; for everything else, it had to rely on the states functioning as intermediaries. This left the government unable to meet basic fiscal obligations and led to rising costs in the financing of the national debt and a collapse in public confidence.
Publius feared that a national emergency like a war would expose the dire condition of public finances. The federal government, unable to raise adequate revenue, would be forced to rely on loans at usurious interest rates, which would only compound the debt crisis. Because it acted directly on individuals, not states, the new Constitution gave the government powers of direct taxation. Thus, it could directly assess taxes on land and people, without relying on the states as intermediaries.
Fears of federal encroachment on state revenues under this arrangement were unfounded. In the first place, the Constitution did not prohibit states from also levying direct taxes. This was a core principle of federalism—on many issues, especially those related to revenue, the states and the federal government exercised concurrent or coequal jurisdiction.
Concurrent jurisdiction over revenue was the only logical way to put the government on sound financial footing. If the states held the exclusive power of direct taxation, this would be a gross misallocation of resources, diverting revenue to where it was least needed. After all, the greatest public expenses were those related to the national defense, a power reserved to the federal government under the new Constitution. Giving it the lion’s share of revenue was appropriate.
But this would not deprive the states of revenue; the only source of revenue reserved exclusively for the federal government under the Constitution was the collection of taxes on imports and exports. States would still be free to tax property and land, which were already their main sources of revenue.
Also, the federal government would still rely upon states and localities for much day-to-day administration, not to mention the fact that the people would be likely to side with their states in any conflict between the two levels of government. Therefore, it would be foolish for the federal government to ever attempt to usurp state power, especially where revenue collection was concerned.
Giving the federal union the power of direct taxation wouldn’t just benefit public finances; it would also be good for the broader economy. If the federal government had to rely solely on customs duties and excise taxes (taxes on manufactured goods levied at the point of manufacture) for its revenue, it would have to tax these items at an extraordinary rate.
This would have distortionary and unequal effects on the different states. States with large manufacturing sectors would be able to produce more of their own goods instead of relying on imports, while passing the costs of the excise taxes onto consumers. States without a manufacturing base, however, would be forced to pay much higher prices for manufactured goods, either from abroad or produced domestically.
The high rates would encourage the growth of tax evasion and black markets, while undermining general respect for the law. In general, giving the federal government a broad tax base would encourage modest tax rates, which would be good for both producers and consumers.
The Constitution further guarded against the possibilities of the tax burden falling unequally on the various states by mandating that all imposts be uniform across the Union—in other words, there couldn’t be a higher federal tax for imports coming into Virginia than for those coming into New York.
Moreover, any direct taxes levied by Congress (in the 18th century these taxes would have applied chiefly to real estate) were required by the Constitution to be proportional. As per Article 1, Section 2, the tax burden assessed in each state was to be tied to that state’s population according to the decennial census.
(Shortform note: The requirement that direct taxes be levied proportionally according to the census was effectively nullified by the passage of the Sixteenth Amendment in 1913, which allowed the federal government to levy an income tax without regard to apportionment among the states.)
While there was a possibility of double taxation, Publius thought this was unlikely to pose a major burden. With an adequate revenue stream, the federal government would have little political desire to provoke resistance by taxing articles of consumption already being taxed by the states.
The states, for their part, would have few expenses to meet once their debts from the Revolutionary War were discharged. After that point, a small land tax would likely be wholly sufficient to meet their limited financial obligations.
Any functional national government needs to have the ability to manage its relations with other countries. This would be especially important for a commercial republic like the United States.
The Constitution expressly authorized the federal government to make treaties with foreign nations and regulate the commerce with them. The national government was the only logical place to lodge this authority; under the Articles of Confederation (as we’ve seen), the individual states had a dangerous amount of leeway to conduct their own de facto foreign policies.
Perhaps the most historically significant foreign policy provision of the Constitution was the explicit authority it gave to the federal government to outlaw the international slave trade beginning in 1808. This was a great moral victory for the young nation.
(Shortform note: The Act Prohibiting Importation of Slaves of 1807 went into effect on January 1, 1808, thus extricating the United States from the international slave trade as soon as it was constitutionally permitted. A massive internal slave trade between the states, however, persisted until the final abolition of slavery in 1865.)
It would make little sense for the new government to be able to regulate international commerce without being able to regulate interstate commerce. The Constitution greatly simplified the economic relationships between the states by granting the federal government the sole authority to unilaterally impose tariffs and duties on imports.
Thus, states could no longer (without the consent of Congress) put tariffs on imports from other states. Under the Articles, states taxed the products of other states in a protectionist effort to boost their own domestic goods. This led to higher prices for both producers and consumers, uncertainty about true prices, the general depression of commerce, and widespread evasion.
To further stimulate interstate commerce, Congress was also given the sole authority to coin money and issue paper notes of legal tender; this put the Union on the path to having a stable and strong currency, enabling merchants and consumers to be more clear about the true value of the goods they were buying and selling. Before the ratification of the Constitution, the states had been coining and printing their own money, leading to widespread economic chaos.
The new Constitution also granted federal power to establish post roads and to set uniform standards of weights and measures, further rationalizing and harmonizing trade between the states.
One of the most important powers granted to the federal government by the Constitution was the power to set national rules for naturalization. This meant that Congress would be the ultimate arbiter of who was and was not a citizen and what privileges and rights individuals would have. Under the Articles, there was widespread confusion over the differences between free citizens and resident aliens.
In enumerating the purposes of the federal government under the new Constitution, Publius also took care to make explicit the powers necessary to achieve them.
The Necessary and Proper Clause of the Constitution states that Congress has the power to enact all “necessary and proper” laws to enforce the powers it is granted. Opponents of the Constitution believed that this clause gave tyrannical power to Congress, but it did nothing of the kind. Rather, the very idea of establishing a government made the Necessary and Proper Clause self-evident.
It would be nonsensical to create a plan for a government and assign to it specific powers (say, to raise an army or collect taxes) without giving it the means to enforce those powers. It was also the right decision not to specifically enumerate the powers either assigned to or withheld from the federal government under this clause. Explicitly listing the powers granted to the government would have implied that it lacked those powers not enumerated; explicitly listing those denied it would have implied that it possessed all the powers not denied.
The framers of the Constitution could not have known how society and law would develop over time; overly constraining or empowering the government by listing specific powers could have the effect of making it difficult for it to respond to future situations. Instead, it was better to let future politicians, judges, and citizens determine the specific scope of federal power.
The opponents of the new government were also agitated over the Supremacy Clause, that part of the Constitution which made federal law the supreme law of the land—superseding state law (and requiring even state officials to swear an oath of allegiance to the Constitution). But again, such a clause simply goes hand-in-hand with the task of setting up a federal system.
A national government that is unable to exercise supremacy over its constituent members is not a national government at all; it’s merely a voluntary treaty or association that can be broken up by any of the parties to it. The framers of the Constitution were charged with creating a government for the United States. Without some sort of Supremacy Clause, any plan for a Union that comprised both the states and a national government would have been meaningless.
Given the obvious failures of the Articles of Confederation, there was a clear need for reform. But no mere revision would suit the needs of the moment. For, as we’ve seen, the defects of the Articles had afflicted all confederate governments going back to the days of ancient Greece. They were beyond salvation because the entire system of government they created was inherently unworkable; they needed to be discarded and replaced wholesale.
The framers at the Philadelphia Convention had to juggle many competing interests as they set about their historic task, such as:
This chapter will examine the structure and principles of the new Constitution and make the case for why the new framework adopted at Philadelphia was the right one for the young republic.
As we’ve seen, the proposed Constitution was a controversial issue at the time of The Federalist Papers. Opponents raised various objections against it, although many of these individual objections contradicted each other.
But the weakness of the Anti-Federalist position was that it did not coalesce around an alternative. If they objected to the new Constitution, what did they propose instead? The Articles of Confederation had proven to be an abject failure. Retaining them was a non-starter.
The Articles had actually already granted most of the same powers to the federal government that the new Constitution proposed to. The difference was that the Articles gave the federal government no effective tools by which to exercise those powers, because the states were too strong. The result was a federal government that was forced to go outside the bounds of law to secure the public good.
Publius argued that the government under the Articles had already exceeded its authority with respect to the administration of western lands and the creation of new states. These lands promised to be a great source of wealth for the country, so it was clearly unrealistic to expect that the national government would simply neglect the opportunity to incorporate them.
Surely, a lawless government was the opposite of what everyone wanted. But, paradoxically, by constraining the hands of the federal government, the Articles of Confederation had left the Union no choice but to undermine the law in its pursuit of the goals that any government would seek to achieve.
The new government would not be perfect, because it was created by imperfect human beings. But perfection was the wrong standard by which to judge it. It should instead be judged in comparison to the existing, clearly inadequate government. And on this count, the new government would represent a significant improvement.
Critics feared that the new government would represent a departure from republican principles for which the Revolution had been fought, empowering the few against the many. What Americans wanted was a government that derived its ultimate sovereign authority from the people.
Thankfully, the new government was decidedly republican in character. In the first place, the Constitution was to be ratified by popular conventions and referenda in the states. This made the people direct parties to the new government. Once the Constitution was in operation, the House of Representatives was to be elected directly by the people of each state, according to the same voting qualifications by which people voted for representatives to their respective state legislatures. The Senate, meanwhile, was to be indirectly elected by the people via their state legislatures.
The President would also be indirectly elected by the members of the Electoral College, a body of electors chosen specifically for the purpose of choosing the chief executive. Lastly, the new Constitution expressly prohibited the establishment of titles of hereditary nobility. The supporters of the new government believed that these safeguards made it essentially representative in character.
But it was not enough to prove that the new government was republican. Critics and opponents worried that the government was too national; in other words, that it created a unitary government that ruled directly over the people, with no regard for the authority of the individual states.
But Publius argued that the new Constitution deftly balanced the priorities of national government (a central government with the necessary authority to act directly on the people) and federal government (a system in which the central government shares powers with subordinate government).
It was a mixture of both forms. While the people would ratify the new Constitution, they would not do so in some national referendum that paid no regard to the states. Rather, the ratification process would be on a state-by-state basis and would only go into operation until nine of them ratified it. This preserved an important role for the sovereignty of the states.
Furthermore, the legislative branch under the Constitution would be considerably determined by the states. Similarly, the House of Representatives would be popularly elected, but seats would be apportioned by state. The Senate, for its part, was one of the strongest guarantors of state power under the new arrangement. In having state legislatures select their state’s senators, the Constitution left it entirely to the states (acting in their capacity as states) to determine the composition of the upper chamber of the national legislature. And in assigning every state equal representation in the Senate regardless of population, the Constitution preserved a key federal feature of the old Articles of Confederation.
The Electoral College, meanwhile, guaranteed that the president would not be chosen in a national election that treated the states as non-entities. The states were the elemental unit in the Electoral College, with each state receiving electoral votes equal to its combined number of representatives and senators.
Thus, the states would have a considerable role in determining the composition of the federal government; but the federal government would have no such role in determining the composition of the state governments.
Continuing on this theme, the Constitution provided clearer guidance than the Articles on what the balance of powers would be between the states and the central government. Beyond what we’ve already outlined, the Constitution stipulated that, while the admission of new states was solely the prerogative of Congress, the federal government had no authority to make new states out of the old ones without the consent of the latter.
This meant that Congress could not unilaterally carve new states out of the boundaries of the existing ones or merge two existing states together to forge a new one. This was an important guarantee and demonstrated that the states would continue to exercise political sovereignty under the new Constitution.
The amendment process also placed the states front and center. The Constitution could not be amended without the amendment being ratified by ¾ of the states, acting through their legislatures. Thus, the states did not just passively accept their status under the Constitution; they would play an active role in shaping the nature of the Union itself.
Unlike the Articles of Confederation, the Constitution explicitly guaranteed that each of the states was to have a republican form of government. The newly strengthened federal government had the requisite power to enforce this provision and come to the aid of any state, should it have the misfortune of falling under the sway of a monarchical or aristocratic faction.
Most of the federal powers outlined in the Constitution were already granted to it under the Articles of Confederation. What the new framework did was give the federal government the ability to effectively administer those powers.
The very nature of state-based representation in the national legislature made it highly unlikely that the federal government could ever overpower the states. Both houses of Congress would be composed of representatives who, because they would owe their political careers to the people and legislatures of their states, were likely to be highly loyal to their states. They would strongly resist any federal encroachment on their state's power (just as members of state legislatures were highly loyal to and protective of their towns and counties).
The existence of a strong political union itself rendered fear of federal overreach highly dubious. Just as the size and unity of the colonies had helped them resist the British during the Revolutionary War, so would the states—bound together in the Union—be able to push back any encroachment at the national level. Any federal army would be dwarfed by the size of the combined state militias and powerless in the face of the loyalty of the people to their states.
So far, we’ve outlined general principles of the new Constitution and made the case for why it was such an improvement over the ineffective Articles of Confederation. We’ve also discussed the sharing of powers between the federal government and the states.
Now, we’re going to pivot our analysis to the structure of the federal government itself. In this chapter, we’ll explore:
All constitutional forms of government have three branches:
A basic principle of republican government, going back to the writings of the French political philosopher Montesquieu, is that these functions must remain separate. Tyranny results when there is too much overlap between these functions: a president, for example, should not be able to write, enforce, and interpret his own laws.
Critics of the new Constitution argued that its provisions for the separation of powers were too weak and that the result would be a corrupt despotism. Publius, however, argued that separation of powers was a general principle that was impossible to follow completely—some mixture and overlap between the powers was inevitable and, indeed, necessary.
For example, the British constitution (at the time regarded as the world’s finest) gave the monarch (the executive) the power to veto laws passed by Parliament (the legislative branch).
Similarly, the various state constitutions blended the powers to one degree or another. Some states had the legislature appoint the executive cabinet, and even the chief executive himself. Others allowed the legislature to impeach members of both the executive and judicial branches. In other states, the executive branch had sole authority for appointing members of the judiciary.
Simply declaring on paper that the three branches ought to be separate was a totally insufficient way to guarantee this end. And instead of striving for complete separation of powers (which was an impossibility), it was far more important to imbue the Constitution with the principle of checks and balances.
The new Constitution was well-designed with a robust system of checks and balances to ensure that the branches remained coequal, that none reigned supreme over the others, and that each had the means to hold the others in check.
The government would be composed of human beings, with all their fallacies and weaknesses. As we’ve emphasized, if humans were perfect, there would be no need for government in the first place.
Any rational plan of government needed to proceed with this insight into human nature in mind. The new Constitution, therefore, would not seek to create a government where individual ambition or thirst for power played no role—that would be an impossible standard to meet. Instead, the new government would create a system in which ambition would check ambition.
The three branches of government would compete with one another for power. In the process, power grabs by one branch would be checked by the power grabs of another. The mutual ambitions of the players in this system would cancel each other out, preserving liberty.
(Shortform note: The authors of the Constitution and The Federalist Papers seem not to have anticipated the rise of organized political parties. Indeed, the first two parties—the Federalists and the Democratic-Republicans—came into existence almost immediately after ratification. With the arrival of political parties, the main theatre of political competition was not between branches of government. Instead, co-partisans began to cooperate across branches of government to achieve shared party goals, precisely the opposite of what the Framers had intended. Ironically, these original parties were led in large part by the primary authors of The Federalist Papers—Hamilton for the Federalists and Madison for the Democratic-Republicans.)
Now, let’s turn to the specific branches of government and their components to get a fuller picture of how the system of checks and balances was designed to function. The House of Representatives is the lower house of the national legislature, with members apportioned within each state by population—the higher the state’s population, the more representatives it has.
There are few eligibility requirements for election to the House. A member merely needs to:
Beyond these requirements, anyone is eligible to run and serve (although the House retains the right to expel members by a two-thirds vote).
Because membership was to be determined by population, the larger states would naturally hold sway in the House. That power would be checked, however, by the Senate, where the smaller states would dominate. The House would tend to have the upper hand, however, because the Constitution mandated that all revenue bills originate from the lower chamber. This gave the House the decisive power of the purse.
Although candidacy for election to the House was open to almost anyone, being a US Representative was still an important public position that ought to be taken seriously. Given the diversity of laws throughout the Union, members of the House needed to be well-acquainted with the laws not only of their own states, but with those of all the other states as well. After all, they would be drafting and voting on legislation that would affect the whole Union—and should therefore understand how a piece of legislation might have disparate impacts on the different states.
Representatives should also be versed in foreign affairs and diplomacy. Although the House was not the chamber that would vote on treaties or confirm ambassadors (those functions belonged to the Senate, which we’ll explore later in the chapter), they might nevertheless have to consider passing domestic legislation that resulted from the United States’ relations with other countries.
The House was to be directly elected by the voters of the state, with voters meeting the same eligibility requirements that they did for state legislative elections. It also represented the people, not the states. Thus, the House was the body of government most directly connected to the sentiments of the people.
Members were to be elected every two years, a shorter term than other federal offices:
By having to run for reelection every two years, members of the House would maintain closer relations with the people they represented. Voters would have frequent opportunity to replace those representatives who failed to acquit themselves well or who had proven themselves to be threats to liberty.
Moreover, the regular, frequent, and fixed time of election would make it difficult for any single faction to gain a foothold in the House for any considerable period of time. Every two years, the entire membership of the lower house could be replaced. Representatives, understanding these political realities, would behave accordingly.
Historical experience had shown that there was no danger in having such a short term of office. In the various state legislatures, members of the lower houses served terms that ranged from between six months to seven years. All of these governments had been broadly successful at maintaining republican liberties. Two-year terms were therefore perfectly compatible with longstanding norms of American governance.
The House would also have the sole authority, with a simple majority vote, to impeach members of the executive branch, including the president, for high crimes and misdemeanors.
This was a crucial check on executive power. The House would not, however, have the authority to convict officials and remove them from office. That power rested solely with the Senate, which we’ll explore later in the chapter.
We’ve already seen how each state’s number of House members was to be tied to its population, as determined by the decennial census. But this didn’t answer the question of enslaved people. How were they to be counted?
The slaveholding states (located primarily in the South) had insisted at the Constitutional Convention that enslaved people be counted as full persons for purposes of representation (which would have given the South an outsized influence in Congress), but not for purposes of direct taxation (which would reduce the federal tax burden to be borne by the slaveholding states). In other words, southerners wanted to treat slaves as people when it would benefit them, and as property when that would benefit them.
Eventually, the delegates reached the notorious Three-Fifths Compromise. This stated that enslaved people were to count as three-fifths of a person for both federal representation and for direct taxation.
(Shortform note: This concession to the South gave the region an influence over national politics out of all proportion to its numbers of free white voters. It enabled the slaveholding states to gain additional representatives in the House as well as votes in the Electoral College that they wouldn’t have otherwise had. The compromise was only repealed by the Fourteenth Amendment in 1868, which explicitly stated that representation was to be allotted based on “the whole number of persons in each State.”)
A key question in drafting the Constitution was how large to make the House of Representatives. If the number of representatives was too small, it would be unrepresentative of the entire nation. But if it was too large, the body would be chaotic and dysfunctional; each representative would only represent small numbers of voters, making it too easy for factions to control members and dominate national politics.
The key, then, was to set the number of representatives (or, more specifically, the ratio of representatives to voters) at the right level. The Constitution called for a House of 65 members. While critics objected that this number was too small, the Constitution made it clear that this figure was to be temporary. It called for the House to be enlarged just three years after the first decennial census of 1790, as would happen every ten years thereafter.
Moreover, the ratio of representatives to voters was to be fixed at one for every 30,000. This, too, was based on sound practice. The British Constitution, held in high regard by the Framers, had roughly the same apportionment for the House of Commons. In fact, the House of Representatives was an improvement on this model, as it contained no property or wealth qualifications for either representatives or voters (beyond what may have been required by the individual states).
Also, the ratio of apportionment for seats in the various state legislatures was sometimes very great (one representative for 40,000-50,000 voters) or very small (one representative for just a few hundred voters). In either case, the federal ratio of 30,000 was well in line with longstanding governing norms.
(Shortform note: The Reapportionment Act of 1929 changed this formula, fixing the total number of representatives at 435. As the national population grew, so did that of the average House district. Today, the average House district has over 700,000 constituents.)
The Senate is the upper chamber of the national legislature. Unlike the House, its members must be 30 years of age and have been citizens of the United States for nine years prior to their election. Thus, senators would tend to be older and more experienced, and have greater familiarity with the laws and customs of the United States, than their counterparts in the House.
These more stringent qualifications (as compared to those for the House) were in place to make it more likely that temperate and considered representatives would serve in the upper chamber.
Senators were to serve six-year terms and be elected by the state legislatures—not by the people themselves. One-third of the senators would be up for reelection every two years. This structure blended the principles of national government and federal government, a point we explored in Chapter 4. By having state legislatures choose senators, the Constitution preserved an essential role for state governments in the composition of the national legislature. This was a continuation of the federal practices of the Articles of Confederation. It checked the national government orientation of the House, in which the people, not the states, directly elected representatives.
(Shortform note: The system of having state legislatures elect senators had become rife with corruption by the late-19th century, with scandalous incidents of Senate seats being openly bought and sold. Moreover, the political polarization of the time had frequently resulted in state legislatures failing to come to agreement on elections to the Senate. This resulted in many Senate seats going unfilled, leaving states without representation in the upper chamber of Congress. The Seventeenth Amendment to the Constitution, ratified in 1913, finally ended senatorial election by state legislatures, mandating instead that senators be directly elected by the voters of their states.)
Lastly, each state was to have two senators, regardless of population. This was also meant to counterbalance the House, where representation was proportional based on a state’s population (with three-fifths of a state’s slave population counting as one person for these purposes). Naturally, the Senate conferred an advantage on smaller states, who received disproportional representation in the upper chamber relative to their actual number of voters.
(Shortform note: Some political observers have argued that the disproportionate representation in the Senate has become problematic and undermines democratic norms. At the time of the Constitution’s adoption, the largest state, Virginia, had a population roughly nine times greater than that of the smallest state, Georgia. Today, the most populous state, California, has a population approximately 70 times that of the smallest state, Wyoming. Put another way, Wyoming voters have 70 times the voting power of Californians within the Senate.)
The Senate was designed to temper the more dangerous democratic impulses of the House. This was because its members were fewer, they were not elected directly by the people, and their terms in office would be longer. This would prevent them from being susceptible to democratic political pressures.
This was meant to insulate senators from the passions of the people. The Senate was meant to act as a check, slowing down or stopping the passage of hasty and ill-considered legislation. By acting as a purposely deliberative and conservative-minded body, the Senate was to provide more wisdom and consistency in legislation and national administration.
The six-year terms were instrumental to this. Because senators served such long terms, they would provide much-needed constancy. This would be unworkable, however, if they had to stand for reelection every two years, as members of the House did. While it was important to preserve republican principles, it was also important to ensure that the United States acted with a steady and consistent hand, and was not seized by fleeting impulses toward dangerous policy decisions.
This function for the Senate was perfectly in keeping with the best practices of constitutional government. Once more, the paramount example was Great Britain. There, the House of Lords (the rough equivalent of the Senate) was not even indirectly elected, but was instead composed of landed nobility and clergy, serving for life by right of birth.
Yet, even with such a body comprising the upper chamber of Parliament, Great Britain had remained well-governed and had not sunk into despotism. In fact, the aristocratic House of Lords had steadily lost power relative to the more representative House of Commons. If even a noble upper house could not destroy free government in Great Britain, then surely one elected by the state legislatures in America would prove to be perfectly harmonious with liberty.
The Senate, as the upper chamber, was designated with certain special privileges. One of the most important of these was its sole prerogative, via a two-thirds vote, to ratify treaties negotiated and submitted to it by the President.
As it would be composed of leaders with greater experience and superior judgment in international affairs, the Senate was the proper body to provide this advice and consent on treaties. There would be a need to balance expediency and secrecy in matters of diplomacy. This was why the president would have sole authority to negotiate and draft treaties, but would require the approval of the Senate for them to become effective.
There was little danger of the Senate becoming corrupted by either the president or by a foreign power in its treaty-approval function. The provision in the Constitution requiring two-thirds approval for any treaty was paramount here—it would be very difficult to bribe that many Senators (and the state legislators who would be responsible for electing them) without the conspiracy being detected and discovered.
The Senate would also be responsible for approving all cabinet appointments by the president, although this could be achieved with a simple majority vote. This would make it less likely that the president would attempt to appoint unqualified loyalists, cronies, and favorites to important cabinet positions. Knowing that his nominations would need to survive a Senate confirmation vote, the president would have a strong incentive to nominate qualified officials.
In both its treaty approval and executive-appointment confirmation functions, the Senate served as a powerful check on the executive branch.
Another, arguably more important check on the power of the executive branch was the Senate’s sole authority to convict members of the executive (including the President) for high crimes and misdemeanors by a two-thirds vote, following impeachment in the House. This high threshold for conviction made it highly unlikely that a President would be removed from office for purely partisan reasons. Only those who had committed truly heinous offenses would be convicted.
(Shortform note: This has indeed proven to be a high bar. Although three presidents have been impeached by the House as of 2020—Andrew Johnson, Bill Clinton, and Donald Trump—none has been convicted in the Senate. Richard Nixon likely would have been both impeached and convicted had he not resigned from office in 1974 amid the Watergate scandal.)
The Senate was the best place to house this crucial function. It would be unjust and contrary to basic principles of the rule of law to give the House the power to both charge and convict an official. The Supreme Court, meanwhile, was too weak, too distant from the people, and too small in numbers to have the legitimacy to remove high-ranking officials. The members of the Supreme Court would also have been nominated to their office by the president, and thus might be too biased in favor of the executive branch to behave impartially.
In addition, the Supreme Court might later be called on to preside over an ordinary trial of such officials after they’d been removed from office. It would be inconsistent with common law principles to force a defendant to appear twice before the same judicial body.
As with so many other aspects of the Constitution, the decision to grant the upper house of the national legislature the power to convict corrupt officials was strongly supported by precedent. Such was the practice with the House of Lords in Great Britain, as well as the state senates in many of the states (including New York, to whose voters The Federalist Papers were originally addressed).
Explore why the separation of powers was so important.
What were the dangers of having the executive, legislative, and judicial authorities intermingled?
How did the design of the Constitution protect against this?
Provide one example of checks and balances created by the Constitution.
In this chapter, we’ll continue our analysis of the structure of the new federal government. In particular, we’ll outline the main functions and responsibilities of the presidency and examine the role of the federal judiciary in the new constitutional system. We’ll also look at the important issue of why the original draft of the Constitution contained no bill of rights—and what its supporters and detractors thought about this omission.
The presidency, the chief executive of the federal government, was perhaps the most controversial and hotly contested feature of the Constitution. The president would have the power to:
Anti-Federalist critics argued that these powers rendered the office tantamount to a monarch, a supreme and unaccountable despot dressed up in republican garb. But this was patently false. The President was nothing like a king—and attempts to mischaracterize the office as such were nothing more than demagogic efforts by the Constitution’s opponents to mislead the public.
Despite the considerable powers of the presidency, the office’s authority was heavily restricted by the provisions of the Constitution. Unlike a monarchy, the presidency was not a hereditary office conferred upon the incumbent by right of birth and held for life; instead, the president was elected (albeit indirectly) by the people through the Electoral College and served a fixed term of four years. Presidents could run for reelection as many times as they wished, but, unlike a king, would face political competition for their office.
The specific powers of the president, meanwhile, differed in important respects from those of European monarchs. The king of Great Britain’s veto was final; that of the president could be overridden by a two-thirds majority vote in each house of Congress. The veto was nevertheless an important check on the power of the legislative branch, one that would prevent Congress from passing bad laws or waging constitutional warfare against the other branches.
Publius reckoned, however, that presidential vetoes would be rare. Even the all-powerful British monarch almost never invoked his absolute veto power over laws passed by both houses of Parliament. It was unlikely, therefore, that a president, operating under much greater institutional constraints, would be more aggressive in his use of this power. Indeed, critics were more likely to accuse the President of vetoing bills too infrequently.
Although the President could negotiate treaties on his or her sole authority, all treaties needed to receive the approval of the Senate before becoming law. Kings faced no such check on their power in this regard.
Similarly, all presidential appointments had to be confirmed by the Senate. The king, meanwhile, could freely appoint favorites and cronies to councils of state and even confer lands and titles of hereditary nobility without Parliament’s assent.
While the President could adjourn Congress, this could only be done when both houses of Congress failed to reach agreement about when to adjourn. On no other occasion could the president exercise such a power. By contrast, the British monarch could prorogue Parliament at will.
The presidential pardon power was likewise, constrained by the Constitution. Importantly, the president could not issue pardons in cases of impeachment. This meant that he would not be able to inoculate his co-conspirators in high crimes and misdemeanors for which they had been duly punished by Congress. But it was nevertheless important to vest the pardon power in the executive branch. The legislative branch, composed of representatives of many parties and factions, would be less able to use the pardon power fairly, especially in situations of national insurrection. A single, more sober-minded executive would be able to wield their pardons more justly, wisely, and effectively.
Lastly, while the president would be commander-in-chief of the armed forces, his power to use them would be greatly constrained by Congress. The president would have no power to raise armies, levy the taxes necessary to pay for them, and, most importantly, declare war without Congress.
Hardly a monarch, the powers of and constraints upon the president were broadly similar to those of state governors all across the country, including New York and Massachusetts. A robust system of checks and balances ensured that the presidency would not become too powerful.
Some opponents of the new Constitution feared that it was dangerous to place executive authority in the hands of one individual. But this was the only way such authority could properly be wielded. Experiments in government by committee had proven unsuccessful, whether with the consuls of ancient Rome or with the executive councils that had existed in some of the states and colonies.
In times of great national emergency, such as war, executive councils failed to move with the necessary speed and decisiveness required for effective action. They tended to be torn by rival factions and forced to settle on compromise solutions to pressing issues.
Furthermore, they made it difficult for the public to properly assign blame or credit for acts of government—a crucial right in a free republic. People would never be sure which factions or individuals on the executive council were responsible for which decisions.
With the checks on executive authority we described earlier in the chapter, it was clear that the President would not become too powerful. It was unnecessary, therefore (and dangerous) to dilute the power of the chief executive by placing it in multiple hands.
It was also important that the president be elected to a term that was long enough for him to gain sufficient experience with national administration. Having a fixed, four-year term would provide the young nation with the stability and predictability in government that it had so sorely lacked under the Articles of Confederation.
There was little to fear in this, as many state constitutions elected their governors to even longer terms. If the people disapproved of the president’s performance, they were free to vote him out at the next election.
The ability of the president to run for reelection was also essential to effective government. If the President was barred from maintaining his office past the next election, he would have little motivation to do it effectively. After all, there would be no reward for good performance.
Term limits deprived the people of the option to reelect presidents of whom they approved. Imposing term limits would hamper the effectiveness of the executive branch (making the president a lame-duck the second he assumed office), introduce destabilizing inconsistency in government, and deprive the nation of the talents of capable officials who had proven themselves to be effective leaders.
(Shortform note: These warnings against presidential term limits went unheeded almost immediately. George Washington began an informal precedent of only serving two terms, one that was followed by every president for nearly 150 years, until Franklin Roosevelt was elected to a third term in 1940 and a fourth in 1944. The Twenty-Second Amendment, passed in 1951, gave Washington’s precedent the force of law, limiting presidents to two terms in office.)
The third branch of government, the judiciary, is unique. Unlike the executive branch, it possesses no army, navy, or other powers of enforcement to compel adherence to its decisions. Unlike the legislature, it has no direct power of the purse.
Despite these limitations to its practical power, the courts are powerful and important players on the constitutional system. They are the referees, policing the conduct of the other two branches with respect to the Constitution.
The way that the federal courts exercise this power is through judicial review. This is the power of the courts to declare null and void those laws or executive orders that are in violation of the Constitution. For example, the Constitution expressly prohibits Congress from passing any bills of attainder—that is, a bill declaring an individual guilty of some offense without recourse to a trial, and punishing them accordingly. If Congress were to pass and the president sign such a law, the judiciary would have a duty to declare it unconstitutional.
In general, the federal courts rule on matters pertaining to the Constitution, the laws of the United States, treaties, matters arising on the high seas, cases involving ambassadors or citizens of other countries, and disputes between the states or between citizens of different states.
The state courts could not be trusted to be impartial in cases to which the states themselves were parties. Such cases could only be fairly handled by the federal court system, whose judges would have no particular loyalty to any state. There would also be occasions in which federal courts would rule on matters pertaining to state laws themselves. Typically, these would involve cases where states had passed laws that they were prohibited from passing by the Constitution (such as laying customs duties on imports from other states, as we discussed in Chapter 3). In such cases, the federal courts would have the power and duty to declare such laws unconstitutional.
Judicial review would serve as a powerful check on both the executive and legislative branches. While courts generally do not have many formal powers to enforce their rulings, Congress and the president have historically complied with court orders, even when they disagreed with them.
(Shortform note: Compliance with court rulings is an important norm, or unwritten law, of democratic governance. When players in the system begin disregarding rulings that they dislike, it threatens to undermine the entire system. For a fuller discussion of the importance of governing norms in healthy democracies, read our summary of How Democracies Die.)
Given its crucial function, and judges’ comparative lack of enforcement power, it was important that the judiciary be independent from the executive and legislative branches.
This was to ensure that these latter branches wouldn’t be able to use either military or police force (in the case of the executive) or financial incentives and threats (in the case of the legislature) to sway judicial decisions. This is why the Constitution mandates that judicial salaries cannot be reduced during a judge’s time of service, thereby removing the possibility of legislators blackmailing judges to obtain favorable rulings.
Most importantly, judges were to serve for life, provided that they maintained “good behavior” on the bench. Absent any egregious offenses like soliciting bribes, which would violate the Good Behavior Clause, judicial appointments would be permanent.
(Shortform note: Impeachment by Congress of federal judges has proven exceedingly rare. As of 2020, only 15 judges—and zero Supreme Court justices—have been impeached, most of them on charges related to bribery and making false statements.)
There are good reasons for this. Judges were meant to make their rulings solely on the Constitution, not for political considerations. If they had to be renominated and re-confirmed, they might feel the need to curry favor with Congress and the president, which could exert a corrupting influence on their jurisprudence. Likewise, if they had to stand for direct election by the people, they might improperly make popular opinion—not constitutional law—the basis of their rulings.
The highest court in the land was to be the United States Supreme Court. While Congress was authorized to create and abolish inferior federal courts (like regional district courts and appellate courts), the Supreme Court was created by the Constitution itself to be the final arbiter of legal controversies.
In the main, the Supreme Court acted as an appellate court—issuing final rulings (for those cases it chose to hear) on cases that had worked their way through the inferior federal courts. The only cases where the Supreme Court would have original jurisdiction would be cases involving ambassadors or cases in which a state was a party to a suit.
Publius rejected the argument that there should be no supreme judicial tribunal and that the final arbiter should be the Senate (similar to the role performed by the House of Lords in Great Britain). This would have been a clear violation of the principle of separation of powers. It was incompatible with free government to have the same body that had a decisive role in creating laws to have the final say in interpreting those laws.
Moreover, people would not necessarily be elected to legislative bodies for their independence or strict adherence to constitutional principles; rather, they would often be regional or party favorites. As elected politicians (who would be up for reelection), they would therefore be more likely to base their judicial decisions on improper political considerations.
The Constitution guaranteed a trial by jury to all defendants who requested one—but only in criminal cases (involving offenses against the state). There was no such provision for civil cases (involving private disputes between individuals).
This led critics and opponents of the Constitution to fear that the document explicitly prohibited trial by jury in civil cases. But Publius argued that this was faulty reasoning. Just because a right was not expressly guaranteed did not mean that it was denied.
Furthermore, it was not clear that trial by jury in civil matters was, in fact, desirable. Would every petty civil dispute require a jury to be empaneled, at great cost to the public? Moreover, many civil cases involved highly specialized areas of law, such as probate or admiralty law. In such cases, it was questionable whether juries would have the necessary expertise or judgment to render sound verdicts.
Even in criminal appellate courts, many jurisdictions did not use trial by jury. Instead, they relied upon a single judge or panel of judges. Universal trial by jury in civil cases was not a realistic standard, nor was it one that had precedent, either in the states or Great Britain.
Most of the states already used special tribunals, not juries, to adjudicate civil cases. Therefore, it made little sense to hold the federal judicial system to a standard that wasn’t being held by the states.
One of the primary objections to the Constitution was that it contained no bill of rights. Publius, however, argued that a Bill of Rights was entirely unnecessary. The Constitution already guaranteed the liberties that such a bill would plausibly contain.
The Constitution already incorporated common law principles from English law, as well as long-established guarantees of political rights that existed in the state constitutions. Moreover, many state constitutions themselves lacked a bill of rights. It made little sense, therefore, to demand one from the US Constitution.
(Shortform note: Despite these arguments, even many supporters of the Constitution—including Federalist Papers co-author James Madison—argued that a bill of rights was crucial to secure those liberties that the Constitution did not explicitly protect. The United States Bill of Rights was ultimately ratified in 1791 as the first ten amendments to the Constitution. Among other liberties, they guaranteed freedom of religion, freedom of speech, freedom of the press, due process, freedom from cruel and unusual punishment, and the right to bear arms.)
Critics also feared that the new federal government would be too costly. But on this point, there was also little cause for concern. Many government functions assigned to the federal government under the Constitution were already being done by the states under the Articles of Confederation. Taxpayers might end up paying more for the federal government, but they would pay less for their state governments. It might have represented a change in paymasters, but not an increase in total costs.
Because much of the day-to-day administration would be done by the president, Congress (which had housed both legislative and executive functions under the Articles of Confederation and was therefore in constant session) would be able to adjourn more frequently. A part-time legislature would be a less burdensome public expense than a full-time one.
Lastly, state legislatures would be freed from having to handle national business, as they would no longer be the primary agents tasked with implementing mandates from Congress, as they had been under the Articles of Confederation. They would be able to devote their attention only to state affairs, which would cause them to be in session less frequently—further saving public expense.
In short, The Federalist Papers outline a plan of government that promised to be far superior to the Articles of Confederation. The new Constitution aimed to create a stronger bond between the states, lay the foundation for national prosperity, establish a strong national defense, create a more efficient and energetic national administration, and safeguard the liberties of the states and the people.
The plan that came out of the Philadelphia Convention was not perfect. It was, however, the best that could have been hoped for under the political circumstances of the time. The authors of The Federalist Papers urged the swift ratification of the Constitution, which they argued was the only path forward for national renewal and a fulfillment of America’s great potential.
Inevitably, future generations of Americans would see the need to update the Constitution to meet new challenges. The Framers could not anticipate what these needs and challenges would be, but they created a process by which the Constitution could be amended.
But Publius cautioned against hasty changes. It was prudent, instead, to let the merits of the new plan of government reveal themselves over time. Time and experience would prove the wisdom and effectiveness of the new, supreme law of the land.
Unpack your main takeaways from The Federalist Papers.
Why were Americans in the late 18th century so apprehensive about a strong central government?
What do you think are the benefits of a centralized model of government versus a decentralized model?
The Constitution was ratified over 225 years ago. What changes would you make to it?