Federalist Principles
An important contribution by Hillsdale College
During my journey of personal encounter with projects of socialist construction in the Third World, I have learned that said projects have nationalist and patriotic discourses that connect their struggles for social justice to the historic heroes of their nations, even as they express appreciation for the gains in political science and technology forged by the bourgeois revolutions of the modern West. This discovery intensified my rejection of the tendency of the Left and the New Left in the United States to exhibit, in theory and practice, disdain for any expression of patriotic sentiment, and to speak as though their own nation is un-redeemably evil. Different from the prevailing leftist tendencies, I considered it necessary to formulate a social justice critique, in the first place, from the vantage point of the colonized, and in the second place, in a form that clarifies the positive contributions of the USA to the modern development of liberty, democracy, republicanism, technology, and human progress, as the colonized themselves have done.
Of course, the great majority of us who are citizens of the United States have lost from consciousness important aspects of our national story, such that it is necessary for us to undertake methods of rediscovery. To this end, I enrolled in the free on-line course on the Federalist Papers offered by Hillsdale College, consisting of ten half-hour sessions taught by the College’s President, Larry P. Arnn, and four of its professors.
The course is an absolute delight, taught in pleasant physical surroundings by competent and dedicated professorial types who seemed to be from a previous era of the academy and the nation. They explain with complete clarity and patience the knowledge that has been lost to us, without the slightest hint of castigation for our ignorance of the teachings of the framers of our nation’s constitution and political system. They repeated the words of Madison, Hamilton, and Jay in depth and with delight, making evident the tremendous capacity of the framers for literate expression, especially by today’s standards. The Hillsdale professors spoke with clarity and enthusiasm on such themes as the challenges confronting republican governments, including republican efforts in England, Sparta, Athens, and Rome as well as the thirteen North American colonies; the reasons behind the separation of powers and the mutual checks placed on each department by the others; the ever-present threat of “factions” and the rule of passion over reason, which had been made evident in the framers’ own experiences; and the need to divide authority between national and state governments. The professors expressed their appreciation for the elaborate governmental architecture created by the Constitution, designed to prevent abuses of state power, created by men who had risen to the challenge of the historic moment. And they expressed lament that the nation has strayed away from the intention of the founders, a process that began in the 1930s.
However, in the end, the course disappoints. The learned professors at no point come to grips with the emergence of large, concentrated corporations, and what this implies for the relations of power between the people and the state. They do not engage the political science that has emerged in practice in the Global South, even though the people’s revolutions from the world beyond the West have engaged the American Revolution, and they have found much of value in it. And even though the professors express hope for renewal, they do not attempt to formulate a plan for the recovery of American constitutionalism.
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In today’s commentary, I review the important teachings of the Hillsdale College online course on the Federalist Papers. The insights formulated in the course ought to be a part of our civics education in the United States, central to public discourse and for public participation in the construction of a more democratic nation and a more just world.
In the 1780s, the newly independent English colonies in North America confronted a profound dilemma. The Articles of Confederation, in preserving the independence and the sovereignty of the thirteen states, had created a confederated government that was too weak, particularly with respect to regulating commerce and raising revenues. However, there was widespread belief that state jurisdiction over a large territory would undermine republican structures, and that the creation of a union of the thirteen independent states would necessarily lead to some sort of centralized, imperial government and the de facto eclipse of republican hopes. At the same time, there was overwhelming commitment from all sectors to the notion that the American Revolution had been fought to attain independence from monarchical tyranny, and that the new order must be a republican order, a hope that was balanced by the recognition that the known republican states in human history had failed to sustain themselves.
The framers of the Constitution, meeting and debating in a Constitutional Convention in 1787, formulated a proposal for an elaborate governmental architecture that was designed to protect and maintain republican principles, in spite of the extensive territory that the proposed union would administer. To go into effect, the proposed Constitution had to be approved by the states in ratifying conventions whose delegates were elected for this one purpose.
With the dissemination of the proposed constitution, papers written in opposition to it immediately appeared. They were known as the anti-Federalist papers, which was a misnomer, because many of the authors were not opposed to the creation of a new federal structure of government but were opposed to the proposed Constitution because of certain elements that, in their view, would lead to tyrannical centralization. Both Federalists and anti-Federalists agreed that something stronger than the Articles of Confederation was needed.
The Federalist Papers were written in the period 1787-1788, in response to the “anti-Federalist” critiques. The authors of the Federalist Papers frequently chided the critics for not paying careful attention to what the proposed constitution actually stated. In general terms, they argued that union would strengthen the capacity of the newly independent colonies to defend themselves against foreign threats, a crucial element in a world of modern nation-states and empires with ongoing territorial and expansionist interests; and it would be favorable for commerce.
One of the principal mechanisms for avoiding centralized state abuses of power, the framers maintained, was federalism, which involved giving limited authority to the federal government. Accordingly, the proposed Constitution enumerated federal authority in the areas of national defense and commerce, while reserving most of the governing functions to the thirteen states. The proposed Constitution, the framers argued, was establishing a confederated republic, like those that had flourished in the confederated republics of Switzerland and the Netherlands. It was a question of recognizing thirteen political societies that were small enough to preserve republican self-government; but large enough, through their constitutional unity, to provide security. The proposed federal government was going to have limited enumerated powers, with all other powers remaining with the states. However, the proposed federal government was to have its own sources of revenue independent from the states, in the form primarily of tariffs, thus enabling the federal government to act decisively on its own behalf.
The second important mechanism for preventing autocratic centralization was the division of state power into separate legislative, executive, and judicial powers, each with the capacity to check and prevent encroachment into their terrain by either of the other two powers. Moreover, the legislative power itself was to be divided. The House would consist of representatives of modest sized voting districts, elected to short terms of two years, characteristics which would establish the House as the department over which the people would have the most influence. The Senate would consist of Senators elected to six-year terms by state legislatures, which would function like ambassadors of their states to the federal government. Legislation required the support of both the House and the Senate, with the Senate providing stability and maturity, and the House representing and filtering the interests and passions of the people.
After much debate at the Constitutional Convention, it was decided in favor of a unitary executive, thus facilitating decisive administrative action by the federal government. The President will be elected state by state, with the majority winner getting all the votes from that state, and with the number of electoral votes assigned to each state dependent on its population size. This electoral structure gives states an important voice in the election of the executive. Once elected, the President would be the focus of attention, held responsible for the conduct of the government. He would defend the prerogatives of the office, because his own reputation was at stake. The office would attract men who hungered for responsibility. Hamilton maintained that previous republics had failed because they lacked a unitary executive, necessary for forceful execution.
The judiciary has the function of holding the executive and the legislature to compliance with the Constitution, seen as the fundamental law, higher than the ordinary laws enacted by the Congress. Ordinary laws and executive orders must always be consistent with the Constitution; and if they are not, the Court has the obligation to strike them down. The Court cannot legislate or administer in its own right; but it has the power to stop unconstitutional actions by the Congress and the President. Coordinated judicial review is a key dimension of the preservation of the balance of power among the departments.
An independent judiciary is necessary for the judicial branch to carry out its function of judicial review. Such independence is attained through life tenure following appointment by the President, with approval by the Senate.
The proposed constitution established the evolution of the Constitution through constitutional amendments, which leaves the process of amendment under the sovereignty of the people, and not according to the desires of the governors. Amendments can be proposed by two-third majorities in both houses or by two-thirds of the legislatures of the states. Ratification of the amendments requires three-quarters of the state legislatures or three-quarters of the conventions in each state, with Congress determining which one of these forms of ratification will be used when an amendment is proposed.
The Constitution thus created an intricate architectural design, creating a compound republic with enumerated areas of authority between federal and state governments, and creating divisions within the federal government, with each division able to check abuses of authority by the other divisions.
This is the architecture of a democratic republic, the framers argued, in which the people are sovereign. It is government of, by, and for the people, a fundamental principle expressed in the July 4, 1776, Declaration of Independence.
However, the power of the people itself had to be checked, the framers believed. Human beings are by nature inclined to the formation of factions, which are composed of citizens united by a common passion or interest against the rights of others or against the common good. They cited the case of Rhode Island, where a faction formed by debtors was able to push for the printing of paper money, thus provoking inflation to the detriment of the common good, but beneficial to them, because it reduced the real value of their debts.
In analyzing the state governments, Madison concluded that legislative encroachment of the powers of the executive is the central problem. The legislative department is everywhere extending the spheres of its activity and drawing all power to itself. The real threat to the separation of powers comes from the unbridled factionalism expressed by the popular branch of government.
As Hamilton wrote in Federalist 71:
The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs, but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.
Madison views the unequal distribution of property as the most common and enduring source of faction. He expressed concern for the possibility of a rage for an equal division of society, anticipating the later emergence of utopian and idealist solutions to inequality that are not well grounded in existing conditions, but nevertheless attain popular support.
Madison believed that the larger size of the proposed republic was an advantage in this regard. It is harder to establish factions in large republics, because there emerge a great number of interest groups, in which policies are developed through negotiation and compromise among them.
Madison also maintained that a large republic is a representative democracy, in which the ideas and the passions of the people are filtered through their representatives, thereby made more refined. In a large republic, he argued, enlightened leaders are more likely to be chosen in the system of representation, creating a greater possibility that the policies will be decided on the basis of reason, and not passions.
The proposed Constitution was not based on the premise that men are virtuous; rather, it established institutions with functions that would check passions and factions and would promote the expression of the virtues that men lacked by nature. It created institutions that checked one another, illustrated by the presidential veto of legislation or the Senate’s approval of presidential appointments, two of numerous examples of checks of the power of each branch by the other branches.
The Hillsdale College professors maintain that the political process today betrays the principles that were expressed with wisdom by the framers. The executive branch today governs through executive orders and through a large, bureaucratic administrative state, responsive only to its own logic. The Supreme Court has developed a practice, under the concept of a “living constitution,” of making laws, rather than reviewing laws with an eye toward their constitutionality. Legislators enact laws that are impossible to understand, written by technocrats. Rather than debating laws, the members of the Congress represent the interests of their constituents before the autonomous bureaucratic agencies.
The presentation of the Hillsdale College professors makes evident the need to return to the founding constitutional principles of the nation.
Hillsdale College course: The Federalist Papers
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We live today in a world that is fundamentally different from the world of Alexander Hamilton and James Madison. In particular, we live in a world of large, concentrated and powerful corporations, which have transformed the competition for power among people and nations. Moreover, we live in a world in which the formerly colonized peoples of the Global South and East have not only attained voice but are actively engaged in the construction of an alternative world order. A proposal, like that of the Hillsdale professors, for a return to the founding constitutional principles of the nation must effectively address its possibilities with respect to these important developments. I will address this issue in subsequent posts. I will maintain that the renewal of the founding constitutional principles is necessary, but it is possible only in the context of a more enlightened post-imperialist view of the world.
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