The Federalist Papers — themes & analysis

Federalist 10 opens with a diagnosis. The framers had been wrestling in Philadelphia with the long history of small republics destroying themselves through internal faction. Madison defines his terms: a faction is a number of citizens united by some common impulse of passion or interest adverse to the rights of others or to the permanent interests of the community. The cures are two: remove the causes, or control the effects.

Removing the causes means either abolishing liberty — the cause of every faction is the freedom that allows men to differ — or producing uniformity of opinion and interest in the whole population, which is impossible and undesirable. The causes are sown in the nature of man. The work, therefore, is to control the effects.

Here Madison makes the move the rest of the paper turns on. A small republic cannot control a majority faction because the majority can simply oppress the minority through ordinary legislative means. An extended republic — large in territory, diverse in interests — controls majority faction by making such a faction unlikely to form across the whole society. The greater the variety of parties and interests, the less probable that a majority will share a common motive to invade the rights of others.

The argument inverted inherited eighteenth-century wisdom. Montesquieu had taught that republics must be small; Madison showed that size is not the enemy of republican government but its best protection. The paper provided the theoretical justification for a continental United States and remains the most-cited single essay in American political thought.

Where to follow it: No. 10 (the faction paper), No. 51 (auxiliary precautions).

Federalist 47 opens the sequence by conceding the Anti-Federalist point: no political truth is of greater intrinsic value than the maxim that the legislative, executive, and judicial powers should not rest in the same hands. But, Madison argues, Montesquieu never meant total separation — he meant that no department should hold the whole of another's power.

Federalist 48 makes the structural argument: parchment barriers between branches will not work. The ambitious will overrun boundaries unless the design itself creates resistance. Papers 49 and 50 dismiss Jefferson's proposal of frequent popular appeals to settle boundary disputes as too inflammatory and too erosive of constitutional reverence.

Federalist 51 is the pivot. The great security against concentration of power consists in giving to those who administer each department the constitutional means and personal motives to resist encroachments by the others. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

The doctrine that follows — if men were angels, no government would be necessary — is the most influential single statement of the constitutional logic of separation of powers ever written. The design takes human nature as it is and arranges offices so that the self-interest of each holder will, in the ordinary course, defend the boundaries of his department against the others.

Where to follow it: No. 47 (the separation doctrine), No. 51 (ambition must counteract ambition).

Hamilton opens Federalist 70 with what he calls a leading character in the definition of good government: energy in the executive. It is essential, he says, to protection against foreign attacks, to the steady administration of the laws, to the protection of property, to the security of liberty against the enterprises of ambition and faction. A feeble executive implies a feeble execution of the government. A government ill executed, whatever it may be in theory, must in practice be a bad government.

From this Hamilton draws his structural prescription. Energy requires unity — a single rather than a plural executive — plus duration, adequate support, and competent powers. Unity, in particular, gives the office its decision, activity, secrecy, and dispatch. A plural executive produces either internal deadlock or civil war between the plural heads, as Hamilton demonstrates through examples from Rome, the Achaean league, the Polish royal council, and the Dutch stadholders.

Safety from executive abuse, he insists, comes from a different mechanism entirely: dependence on the people through election, the impeachment power, and the clear fixation of responsibility on a single identifiable head. Make the executive plural and one ends not with the safety of many but with the irresponsibility of none — no one is clearly accountable when things go wrong.

The argument is the foundational text of the American doctrine of the unitary executive, and the central reference point in every constitutional debate about presidential power that has followed. It is worth reading alongside the Anti-Federalist objections it was answering: the fear that a single energetic executive was a disguised monarchy was not paranoid; it was the correct inference from every republic that had gone before. Hamilton's answer was that the election mechanism and the impeachment power changed what a strong executive meant.

Where to follow it: No. 68 (the electoral college), No. 70 (energy in the executive), No. 72 (re-eligibility).

Hamilton opens Federalist 78 with what he calls the natural feebleness of the judiciary. The courts have neither the sword nor the purse; they have only judgment, and they depend ultimately on the executive to enforce their decisions. So far from being dangerous, the judiciary is the least dangerous branch and stands in continual need of structural protection from the others.

Life tenure during good behaviour is one such protection — it removes the pressure on judges to please the political branches and frees them to apply the law as they understand it. The independence of judges is equally requisite to guard the Constitution from legislative encroachments.

The case for judicial review follows directly. Limited constitutions can be preserved in practice only through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. No legislative act contrary to the Constitution can be valid. The deputy cannot be greater than his principal; the servant cannot be above his master; the representatives of the people cannot be superior to the people themselves.

The courts, by treating an unconstitutional statute as void, do not place themselves above the legislature. They place the will of the people, expressed in the Constitution, above the will of the legislature, expressed in a single statute. Chief Justice John Marshall drew on this argument almost verbatim in Marbury v. Madison fifteen years later, establishing judicial review as part of the working constitutional order. Federalist 78 is, in effect, the source code of one of the three pillars of American government.

Where to follow it: No. 78 (the judiciary paper), No. 79 (judicial tenure), No. 80 (federal jurisdiction).

Federalist 84, near the end of the series, addresses one of the Anti-Federalists' strongest objections: the proposed Constitution has no bill of rights. Every state constitution had a declaration of rights; the British constitutional tradition had centred on them since the Glorious Revolution; their absence from the federal Constitution looked to many ratifiers like a fatal omission.

Hamilton's reply is two-pronged. The first prong: bills of rights are appropriate to monarchical constitutions, where the people protect themselves against an existing sovereign. In a constitution founded on popular consent, where the federal government has only the powers explicitly enumerated, a bill of rights is unnecessary. There is no need to declare that Congress shall not abridge freedom of the press, because Congress has not been given any power that could touch the press.

The second prong: bills of rights are positively dangerous, because they suggest by their inclusion that the government has powers it would otherwise have lacked. To declare that liberty of the press shall not be restrained, when no power has been given to restrain it, is to imply that such a power was thought possible without the prohibition.

The argument is logical and was made in good faith. It also lost. The Anti-Federalists succeeded in extracting a tacit promise that the first Congress would propose a bill of rights as amendments, and Madison — who had agreed with Hamilton in 1788 — drafted what became the first ten amendments in the summer of 1789. The United States has been better off for the loss: the Bill of Rights has served as the foundational guarantor of individual liberty for two and a half centuries, doing exactly the work Hamilton thought it unnecessary to do.

Where to follow it: No. 84 (the bill of rights paper), No. 85 (closing appeal).