The Letters Of Publius


The judiciary Publius saw in the Constitution was weak and limited; it had no power over finances, Hamilton’s first requisite for a strong government. It possessed no appointive authority. Its function of judicial review, which The Federalist took for granted and which already obtained in most state courts, awaited, it turned out, the appearance of a judicial statesman (and politician) like John Marshall to give it real significance. Life tenure and a salary which was not to be diminished while they held office assured the judges that they would be independent of the legislative and executive branches, as Montesquieu prescribed. Beyond that, the business of the courts was expressly defined and limited; they would have, it seemed, relatively little to do.

With respect to another objection to the new Constitution—that it contained no bill of rights—Publius made the rather lame answer that “bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege,” and in this sense such bills “have no application to constitutions, professedly founded upon the power of the people, … the people surrender nothing; and as they retain everything they have no need of particular reservations.” This answer failed to satisfy either Virginia or New York. The denial of such rights had made up the catalogue of grievances against Britain in the Declaration of Independence, and the failure of the proposed federal government to guarantee their preservation was an invitation to the abuse of power. Both states, in their ultimate ratification of the Constitution, stipulated that a bill of rights was to be the first order of business of the first Congress.

By the time the discussion had reached this stage, the issue of ratification had been settled. Maryland cast its vote for the Constitution at the end of April; South Carolina a month later. By June, New Hampshire, Virginia, and New York were in convention, and Governor Clinton’s group suddenly became aware that they were losing the battle. Their chief hope still lay in keeping Virginia in line and holding out for as many concessions as possible. In this circumstance, the New York governor took an unusual step and wrote a letter to Virginia’s Governor Randolph. New York, Clinton said in effect, would vote “No” if the Old Dominion would do likewise.

Such a communication, read to the Virginia convention where the antinationalists were yet clinging to a slight majority and many votes were committed to ratification only reluctantly, quite possibly could have rallied the opposition and blocked ratification. But Randolph—that cryptic, erratic statesman who first proposed a strong federalist plan to the Philadelphia convention, then refused to sign the completed Constitution; who presided at the Virginia convention and encouraged the antinationalists to expect his support before suddenly announcing in favor of the document—Randolph refrained from mentioning Clinton’s letter to the delegates. On June 25, by the narrowest of margins, Virginia voted to ratify.

New Hampshire, four days earlier on June 21, had already become the ninth state to approve the Constitution and thus insure its going into effect. This news had not reached Richmond by the time of the voting there, but it had gotten to the convention at Poughkeepsie, and the Clintonians saw the handwriting on the wall. By early July, word of Virginia’s action had also reached the convention, and the antinationalist forces began to give ground. The Empire State joined the Old Dominion in approval on July 26. (North Carolina was to delay ratification for another fifteen months, and Rhode Island until the spring of 1790.)

By now the book edition of The Federalist was already selling smartly, but the final numbers proceeded unhurriedly into the Independent Journal . “Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it,” wrote Publius in his final installment. “I am persuaded that this is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced.”

“A nation without a national government,” Hamilton said firmly, “is … an awful spectacle. The establishment of a Constitution, in a time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety.”

Its immediate function—contributing to the argument in favor of New York’s ratification—was now discharged, but The Federalist was only beginning its history as a treatise on American constitutional theory. In revolutionary France, where a federal system was advocated by the moderates as an alternative to the growing demagoguery of Paris, a translation of the American essays appeared early in 1792; the French National Assembly that same August granted honorary citizenship to Hamilton and Madison in recognition of their services through the essays to the cause of self- government. French demand for the letters of Publias was so avid that a third printing was required in 1795. Four years later came a second American printing.