- Historic Sites
The Letters Of Publius
Writing in haste under this antique pseudonym, three young men produced a running defense of the hold new American Constitution. After 173 years, The Federalist still casts a very long shadow
June 1961 | Volume 12, Issue 4
But what of this national citizenship—was this not lowering the main barriers to a rampant democracy? Did this not open the gates to the very type of mob rule that had generated Shays’ Rebellion—giving control of the government to men who had no responsibilities for the management of property, hence no judgment as to what comprised the ultimate good for the country? It took no great foresight to know that a growing land would soon require additional states, that these would be peopled by voters undisciplined in the settled ways of the older communities—and that they would outvote the cultured fringe along the Atlantic. Many a conservative whose personal interests inclined him to support a stronger central government had reason to pause when he considered this prospect; upon further reflection he might, Hamletlike, prefer the ills he had under the present system than fly to others that he knew not of.
Upon this point Publius strove to emphasize the checks and balances by which the men at Philadelphia had undertaken to safeguard against an excess of democracy. There was the electoral college, which Hamilton firmly believed would insure that the President would always be the choice of an elite body, safely removed from the people. There was the election procedure for senators, secure in the hands of the state legislatures, dignified with a higher age qualification and stabilized by a system of overlapping six-year terms. Even though the House of Representatives was to be popularly elected, there was some control in the provision that the time, place, and manner of holding elections were to be set by the state legislatures.
New York continued to procrastinate. It was now February, 1788, and three more states had approved the Constitution—Georgia, Connecticut, and Massachusetts. This was two-thirds of the necessary majority, but the most difficult part of the ratification struggle lay ahead. New Hampshire’s convention recessed in March without taking action; and this, as Madison reported to Governor Randolph in Virginia, considerably encouraged the antinationalists in New York.
Meantime, The Federalist was turning its attention to the basic theory of the new government proposed by the Constitution. Did this national structure contain the capacity for despotism? Critics were attacking, as they have done periodically ever since, the clause empowering Congress “to make all laws which shall be necessary and proper” for carrying out the delegated powers in the Constitution. Hamilton met this issue with lawyer’s logic:
“What is a power, but the ability or faculty of doing a thing?” he asked. “What is the ability to do a thing, but the power of employing the means necessary to its execution? … What are the proper means of executing such a power, but necessary and proper laws?” This method of advocacy did not prove much; in the next statement, however, Hamilton revealed the real purpose of the clause: “to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade” the federal authority; indeed, the very opposition to the clause “betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.” This “truth” was that power to perform specific acts, once given, is complete and beyond the reach of the states. While nationalists might applaud this explanation, the opponents of the new Constitution felt that it confirmed their worst fears.
On the separation of powers—that touchstone of free government according to Montesquieu—Madison wrote: “After discriminating … the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.”
The Articles of Confederation had made no provision for an executive, other than the formal presidency of Congress; and virtually the only court machinery of the national government consisted of tribunals to settle disputes between sovereign states. The new government was to have both an independent executive and “one Supreme Court, and … such inferior courts as the Congress may from time to time ordain and establish.”
The Presidency—an office which, the antinationalists lamented, would saddle American democracy with a tyrant as baleful as the King—was described by Publius as a limited executive function duly circumscribed by constitutional checks. Compared with the Crown, wrote Hamilton, the national executive had far less power: his veto could be overridden by Congress; he could be impeached; he held office for only four years, after which he must stand for re-election. Most important of all, he could not prorogue or dissolve the legislature, as the Crown’s agents had done so often in the critical years before the Revolution.
On the other hand, an executive department with definite authority was a major advance from the Articles of Confederation. The Founding Fathers assumed that Congress itself would meet only for limited periods of the year, and that an independent executive would not only provide the continuity of the old Congress’ executive committee—a cumbersome expedient at best—but would generally expedite the discharge of government business. To the complaint that the President might assume too much authority in the period between sessions of Congress, Publius replied: “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”