a collection of essays written to oppose the constitution

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

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Course: US history   >   Unit 3

• The Articles of Confederation
• What was the Articles of Confederation?
• Shays's Rebellion
• The Constitutional Convention
• The US Constitution

The Federalist Papers

• The Bill of Rights
• Social consequences of revolutionary ideals
• The presidency of George Washington
• Why was George Washington the first president?
• The presidency of John Adams
• Regional attitudes about slavery, 1754-1800
• Continuity and change in American society, 1754-1800
• Creating a nation

• The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788.
• The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.
• The Federalist Papers is considered one of the most significant American contributions to the field of political philosophy and theory and is still widely considered to be the most authoritative source for determining the original intent of the framers of the US Constitution.

The Articles of Confederation and Constitutional Convention

• In Federalist No. 10 , Madison reflects on how to prevent rule by majority faction and advocates the expansion of the United States into a large, commercial republic.
• In Federalist No. 39 and Federalist 51 , Madison seeks to “lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty,” emphasizing the need for checks and balances through the separation of powers into three branches of the federal government and the division of powers between the federal government and the states. 4 ‍  
• In Federalist No. 84 , Hamilton advances the case against the Bill of Rights, expressing the fear that explicitly enumerated rights could too easily be construed as comprising the only rights to which American citizens were entitled.

What do you think?

• For more on Shays’s Rebellion, see Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002).
• Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles, and Letters During the Struggle over Ratification; Part One, September 1787 – February 1788 (New York: Penguin Books, 1993).
• See Federalist No. 1 .
• See Federalist No. 51 .
• For more, see Michael Meyerson, Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (New York: Basic Books, 2008).

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Introductory note: the federalist, [27 october 1787–28 may 1788], introductory note: the federalist.

[New York, October 27, 1787–May 28, 1788]

The Federalist essays have been printed more frequently than any other work of Hamilton. They have, nevertheless, been reprinted in these volumes because no edition of his writings which omitted his most important contribution to political thought could be considered definitive. The essays written by John Jay and James Madison, however, have not been included. They are available in many editions, and they do not, after all, properly belong in the writings of Alexander Hamilton.

The Federalist , addressed to the “People of the State of New-York,” was occasioned by the objections of many New Yorkers to the Constitution which had been proposed on September 17, 1787, by the Philadelphia Convention. During the last week in September and the first weeks of October, 1787, the pages of New York newspapers were filled with articles denouncing the Constitution. 1 The proposed government also had its defenders, but their articles were characterized by somewhat indignant attacks on those who dared oppose the Constitution rather than by reasoned explanations of the advantages of its provisions. 2

The decision to publish a series of essays defending the Constitution and explaining in detail its provisions was made by Alexander Hamilton. Both the reasons for his decision and the date on which he conceived the project are conjecturable. Having gone to Albany early in October to attend the fall session of the Supreme Court, he was not in New York City during the early weeks of the controversy over the Constitution. 3 He must, nevertheless, have concluded that if it were to be adopted, convincing proof of its merits would have to be placed before the citizens of New York. His decision to write the essays may have been made before he left Albany, for according to tradition he wrote the first number of The Federalist in the cabin of his sloop on the return trip to New York. 4

At some time before the appearance of the first essay, written under the pseudonym “Publius,” Hamilton sought and found collaborators, for the first essay, published in The [New York] Independent Journal: or, the General Advertiser on October 27, 1787, was followed in four days by an essay by John Jay. Neither Hamilton nor Jay left a record of any plans they might have made, but the third collaborator, James Madison, later wrote that “the undertaking was proposed by Alexander Hamilton to James Madison with a request to join him and Mr. Jay in carrying it into effect. William Duer was also included in the original plan; and wrote two or more papers, which though intelligent and sprightly, were not continued, nor did they make a part of the printed collection.” 5 Hamilton also sought the assistance of Gouverneur Morris, who in 1815 remembered that he had been “warmly pressed by Hamilton to assist in writing the Federalist.” 6

In reprinting the text of The Federalist the original manuscripts have been approximated as nearly as possible. As the first printing of each essay, despite typographical errors, was presumably closest to the original, the text published in this edition is that which was first printed. The texts of those essays among the first seventy-seven which were written by Hamilton or are of doubtful authorship are taken from the newspapers in which they first appeared; the texts of essays 78–85 are taken from the first edition of The Federalist , edited by John and Archibald McLean. 7

With the exception of the last eight numbers, all the issues of The Federalist were first printed in the newspapers of New York City. The first essay was published on October 27, 1787, in The Independent Journal: or, the General Advertiser , edited by John McLean and Company. Subsequent essays appeared in The Independent Journal and in three other New York newspapers: New-York Packet , edited by Samuel and John Loudon; The Daily Advertiser , edited by Francis Childs; and The New-York Journal, and Daily Patriotic Register , edited by Thomas Greenleaf. 8

The first seven essays, published between October 27 and November 17, 1787, appeared on Saturdays and Wednesdays in The Independent Journal , a semiweekly paper, and a day or two later in both New-York Packet and The Daily Advertiser . At the conclusion of essay 7 the following announcement appeared in The Independent Journal: “In order that the whole subject of these Papers may be as soon as possible laid before the Public, it is proposed to publish them four times a week, on Tuesday in the New-York Packet and on Thursday in the Daily Advertiser.” The intention thus was to publish on Tuesday in New-York Packet , on Wednesday in The Independent Journal , on Thursday in The Daily Advertiser , and on Saturday in The Independent Journal .

The announced plan was not consistently followed. On Thursday, November 22, The Daily Advertiser , according to the proposed schedule, published essay 10, but after its publication no other essay appeared first in that newspaper. To continue the proposed plan of publication—a plan which occasionally was altered by publishing three instead of four essays a week—the third “Publius” essay of the next week appeared on Friday in New-York Packet . After November 30 the essays appeared in the following manner: Tuesday, New-York Packet , Wednesday, The Independent Journal , Friday, New-York Packet , and Saturday, The Independent Journal . The third essay of the week appeared either on Friday in the Packet or on Saturday in The Independent Journal . This pattern of publication was followed through the publication of essay 76 (or essay 77, in the numbering used in this edition of Hamilton’s works) on April 2, 1788. The remaining essays were first printed in the second volume of McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends ’s edition of May 28, 1788, and beginning on June 14 were reprinted, at intervals of several days, first in The Independent Journal and then in New-York Packet .

The first edition, printed by J. and A. McLean 9 and corrected by Hamilton, is the source from which most editions of The Federalist have been taken. On January 1, 1788, McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends , having observed “the avidity” with which the “Publius” essays had been “sought after by politicians and persons of every description,” announced plans for the publication of “The FEDERALIST, A Collection of Essays, written in favour of the New Constitution, By a Citizen of New-York , Corrected by the Author, with Additions and Alterations.” 10 The promised volume, including the first thirty-six essays, was published on March 22, 1788. Hamilton was not altogether pleased with the volume, for he stated in the preface 11 that it contained “violations of method and repetitions of ideas which cannot but displease a critical reader.” Despite such imperfections, he hoped that the essays would “promote the cause of truth, and lead to a right judgment of the true interests of the community.” Interested readers were promised a second volume of essays as soon as the editor could prepare them for publication.

“This Day is published,” The Independent Journal advertised on May 28, 1788, “The FEDERALIST, VOLUME SECOND.” This volume contained the remaining essays, including the final eight which had not yet appeared in the newspapers. As in the first volume, there were editorial revisions which probably were made by Hamilton. The final eight essays, which first appeared in this volume were reprinted in The Independent Journal and in New-York Packet between June 14, 1788, and August 16, 1788.

In addition to the McLean edition, during Hamilton’s lifetime there were two French editions 12 and two American editions of The Federalist . The second American edition, printed by John Tiebout in 1799, was not a new printing but a reissue of the remaining copies of the McLean edition with new title pages. The third American edition, published in 1802, not only was a new printing; it also contained revisions presumably approved by Hamilton. It is this, the Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends edition, which must be taken as Hamilton’s final version of The Federalist . 13

George F. Hopkins announced his plan for a new edition of The Federalist in the January 13, 1802, issue of New-York Evening Post . “Proposals, By G. F. Hopkins, 118 Pearl Street,” read the advertisement in the Post , “For Publishing by Subscription, in Two handsome Octavo Volumes, THE FEDERALIST, ON THE CONSTITUTION, BY PUBLIUS Written in 1788. TO WHICH IS ADDED, PACIFICUS, ON THE PROCLAMATION OF NEUTRALITY. Written in 1793. The whole Revised and Corrected. With new passages and notes .” Hopkins proposed not only to issue a revised text but to give the author of each essay; by naming Hamilton, Madison, and Jay as the authors of The Federalist , he publicly broke the poorly kept secrecy surrounding its authorship. Almost a year passed before Hopkins, on December 8, 1802, offered to the public “in a dress which it is believed will meet with general approbation” the new edition.

Although it is certain that Hamilton did not himself revise the text published in the Hopkins edition, available evidence indicates that he approved the alterations which were made. In 1847 J. C. Hamilton wrote to Hopkins requesting information on the extent to which Hamilton had made or approved the revisions. Hopkins replied that the changes had been made by a “respectable professional gentleman” who, after completing his work, had “put the volumes into the hands of your father, who examined the numerous corrections, most of which he sanctioned, and the work was put to press.” The editor, who was not named by Hopkins, was identified by J. C. Hamilton as John Wells, an eminent New York lawyer. The Hopkins edition, Hamilton’s son emphatically stated, was “ revised and corrected by John Wells … and supervised by Hamilton.” 14 Henry B. Dawson in his 1864 edition of The Federalist contested J. C. Hamilton’s conclusion and argued that the changes were made by William Coleman, editor of New-York Evening Post , and that they were made without Hamilton’s authorization or approval. According to Dawson, Hopkins declared on two different occasions in later years—once to James A. Hamilton and once to John W. Francis—that Hamilton refused to have any changes made in the essays. 15 Although it is impossible to resolve the contradictory statements on Hamilton’s participation in the revisions included in the 1802 edition of The Federalist , J. C. Hamilton presents the more convincing evidence. He, after all, quoted a statement by Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends , while Dawson related only a conversation.

The McLean and Hopkins editions thus constitute Hamilton’s revision of the text of The Federalist . Hamilton made some minor changes in essays written by Jay and Madison—changes which in the McLean edition they presumably authorized. Jay never revised the essays he wrote, and it was not until 1818 that Madison authorized the publication of an edition which included his own corrections of his essays. This edition was published by Jacob Gideon, 16 a printer in Washington, D.C.

It is, then, from the newspapers of the day, the McLean edition of 1788, and the Hopkins edition of 1802 that a definitive text of Hamilton’s contribution to The Federalist must be reconstructed. In the present edition, as stated above, the texts of essays 1–77 have been taken from the newspapers in which they first appeared; the texts of essays 78–85 are from volume two of the McLean edition. All changes which Hamilton later made or approved in the texts of the essays he wrote have been indicated in notes. Thus in essays 1–77 all changes made in the McLean and Hopkins editions in Hamilton’s essays are given. In essays 78–85 all the changes which appeared in the Hopkins edition are noted. The edition in which a revision was made is indicated by a short title, either by the name “McLean” or “Hopkins.” To this rule there are, however, three exceptions: 1. When an obvious typographical error appears in the text taken from the newspaper, it has been corrected without annotation. 2. When in McLean there is a correction of a printer’s error which, if left unchanged, would make the text meaningless or inaccurate, that correction has been incorporated in the text; the word or words in the newspaper for which changes have been substituted are then indicated in the notes. 3. Obvious printer’s errors in punctuation have been corrected; a period at the end of a question, for example, has been changed to a question mark. When a dash is used at the end of a sentence, a period has been substituted.

Because of changes made in the McLean edition, the numbering of certain essays presents an editorial problem. When McLean, with Hamilton’s assistance, published the first edition of The Federalist , it was decided that the essay published in the newspaper as 35 should follow essay 28, presumably because the subject matter of 35 was a continuation of the subject treated in 28. It also was concluded, probably because of its unusual length, that the essay which appeared in the newspapers as essay 31 should be divided and published as two essays. When these changes were made, the original numbering of essays 29–36 was changed in the following way:

Essays 36–78 in the McLean edition thus were one number higher than the number given the corresponding essay in the newspaper.

Because McLean changed the numbers of some of the essays, later editors have questioned whether there were 84 or 85 essays. This is understandable, for there were only 84 essays printed in the newspapers, the essays 32 and 33 by McLean having appeared in the press as a single essay. The last essay printed in The Independent Journal accordingly was numbered 84. The last eight essays published in New-York Packet , on the other hand, were given the numbers used in the second volume of McLean’s edition. The last number of The Federalist printed by New-York Packet in April had been numbered “76”; the following essay, published in June, was numbered “78.” By omitting the number “77,” the editor of New-York Packet , like McLean, numbered the last of the essays “85.”

Later editions of The Federalist , except for that published by Henry B. Dawson, have followed the numbering of the McLean edition. Since no possible purpose would be served and some confusion might result by restoring the newspaper numbering, the essays in the present edition have been given the numbers used by McLean in 1788, and the newspaper number has been placed in brackets.

Almost a century and a half of controversy has centered on the authorship of certain numbers of The Federalist . Similar to most other eighteenth-century newspaper contributors, the authors of The Federalist chose to write anonymously. When The Federalist essays appeared in the press, many New Yorkers probably suspected that Hamilton, if not the sole author of the “Publius” essays, was the major contributor. Friends of Hamilton and Madison, and perhaps those of Jay, certainly knew that this was a joint enterprise and who the authors were. 17 The number of essays written by each author, if only because the question probably never arose, aroused no curiosity. The Federalist , after all, was written for the immediate purpose of persuading the citizens of New York that it was to their interest to adopt the Constitution; certainly not the authors, and probably few readers, realized that the essays which in the winter of 1788 appeared so frequently in the New York press under the signature of “Publius” would become a classic interpretation of the Constitution of the United States. In 1802, George F. Hopkins proposed to publish a new edition of The Federalist in which the authors would be identified; but because of Hamilton’s “decided disapprobation” 18 no identification of the authors was made in that edition. It was not until three years after Hamilton’s death that The Port Folio , a Philadelphia weekly, published a list of the authors of the essays, thus opening a controversy which still remains unsettled. 19

The evidence on the authorship of several of the essays is contradictory because both Hamilton and Madison made, or allegedly made, several lists in which they claimed authorship of the same essays. It is neither necessary nor instructive to discuss the minor discrepancies found in the claims by the two men in their respective lists. 20 The whole problem is simplified by keeping in mind that of the eighty-five essays the authorship of only fifteen is disputed. Despite contrary claims in several of the least credible lists published during the first two decades of the nineteenth century, it has long been accepted that Hamilton wrote essays 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85; that Madison was the author of essays 10, 14, 37–48; and that Jay contributed essays 2–5 and 64. 21 The authorship of only essays 18–20, 49–58, and 62–63 is therefore debatable.

The number of disputed essays can be reduced by examining the reliability of the several Madison and Hamilton lists. There are four reputed Madison lists: 1. An article, signed “Corrector,” which appeared in the National Intelligencer on March 20, 1817, and which, according to the anonymous author, was copied from “a penciled memorandum in the hand of Madison.” 22 2. A statement of authorship, supposedly endorsed by Madison, made by Richard Rush, a member of Madison’s cabinet, in his copy of The Federalist . 23 3. An article in the City of Washington Gazette , December 15, 1817, claiming to set forth a list “furnished by Madison himself.” 24 4. The edition of The Federalist published by Jacob Gideon in 1818, which based its attribution of authorship on Madison’s own “copy of the work which that gentleman had preserved for himself.” 25 There is no evidence that Madison approved the first three lists; the fourth, the Gideon edition, was not only based on Madison’s copy, but it was endorsed by him as correct.

Hamilton’s claims to authorship are more complicated. Despite statements by his partisans, there are only three Hamilton lists that merit the serious attention of the historian who applies any known tests for evaluating historical evidence. They are the so-called “Benson list,” the list allegedly preserved by Hamilton in his own copy of The Federalist , and the “Kent list.”

The Benson list, according to a story first related by William Coleman in March, 1817, was left by Hamilton, shortly before his death, between the pages of a book in the library of his long-time friend, Judge Egbert Benson. Arriving at Benson’s office, Hamilton was told by Robert Benson, Jr., Egbert’s nephew and clerk, that the Judge and Rufus King had gone to Massachusetts for a few days. As Hamilton conversed with the law clerk, he idly handled one of the volumes on the shelves in the office. After Hamilton’s death which occurred two days later, Benson remembered the incident and, looking in the book Hamilton had picked up, he found a scrap of paper, unsigned but in Hamilton’s hand, listing the essays he had written. 26 Judge Benson, according to the traditional account, pasted it on the inside cover of his copy of The Federalist but somewhat later, fearing that he might lose such a valuable document, deposited it in the New York Society Library. The memorandum was presumably stolen in 1818. 27

The existence of the Benson list was corroborated by two witnesses, Robert Benson and William Coleman. Coleman, editor of New-York Evening Post , is the less credible authority; he may have seen the Benson list, but it is significant that he never definitely stated that he did. The most emphatic statement that he made, elicited by the demands for proof made by an antagonist in a newspaper controversy over the authorship of The Federalist , was as follows:

“I, therefore, for the entire satisfaction of the public, now state, that the memorandum referred to is in General Hamilton’s own hand writing, was left by him with his friend judge BENSON, the week before his death, and was, by the latter, deposited in the city library, where it now is, and may be seen, pasted in one of the volumes of The Federalist .” 28

The statement of Robert Benson, the law clerk to whom Hamilton spoke on the day before his encounter with Burr, is more convincing, but it was made many years after the event, and it is far from being conclusive. “I was then a student in the office,” Benson recalled “and well known to the General” who called and enquired for Judge Benson.

“I replied that he had left the city with Mr. King. The General in his usual manner then went to the book case and took down a book which he opened and soon replaced, and left the office. Some time after the General’s death, a memorandum in his handwriting was found in a volume of Pliny’s letters, I think , which, I believe , was the book he took down, and which memorandum was afterwards wafered by the Judge in the inside cover of the first volume of the Federalist, and where it remained for several years. He subsequently removed it, and, as I understand , gave it to some public library.… The marks of the wafers still remain in the volume, and above them in Judge Benson’s handwriting is, what is presumed, and I believe to be , a copy of the General’s memorandum above referred to.” 29

The Benson list is suspect, then, because the claim for its authenticity is based on the evidence of two men neither of whom stated that he actually saw it. If there had not already been too much fruitless speculation on Hamilton’s thoughts and intentions, it would be interesting to explain why Hamilton chose such a roundabout method to make certain that future generations would recognize his contribution to such a celebrated book. Perhaps he knew that Robert Benson would search all the volumes in his uncle’s office on the suspicion that Hamilton, however uncharacteristically, had concealed a note on some important subject; or perhaps he thought that Benson frequently read Pliny’s Letters and thus could be sure the note would be found. One can speculate endlessly on the motives for Hamilton’s extraordinary behavior, but the significant fact is that the Benson list is inadequate as historical evidence.

Evidence of the existence of Hamilton’s own copy of The Federalist in which he supposedly listed the essays he wrote comes from a notice which appeared on November 14, 1807, in The Port Folio . “The Executors of the last will of General Hamilton,” the Philadelphia weekly announced, “have deposited in the Publick Library of New-York a copy of ‘ The Federalist ,’ which belonged to the General in his lifetime, in which he has designated in his own handwriting, the parts of that celebrated work written by himself, as well as those contributed by Mr. JAY and Mr. MADISON.” No one has seen Hamilton’s copy in the last 150 years; whether it existed or what happened to it, if it did exist, cannot now be known. 30

While the numbers claimed by Hamilton in the Benson list and in his own copy of The Federalist are the same, the list by Chancellor James Kent disagrees in several particulars from the other two. The Kent list, in the Chancellor’s own writing, was found on the inside cover of his copy of The Federalist , now in the Columbia University Libraries. Because of differences in the ink and pen he used, Kent’s statement may be divided into three parts, each of which was written at a different time. In the following copy of Kent’s notes the three parts are indicated by Roman numerals:

The numbers which were written over the numbers Kent first wrote are not in Kent’s writing. However familiar one is with the handwriting of another, it is difficult to determine if a single numeral is in his writing. But despite the impossibility of positive identification, a close comparison of numerals made by Hamilton with the numerals which were added to the Kent list strongly indicates that the changes are in the writing of Hamilton. The Kent list thus becomes the only evidence in Hamilton’s writing which now exists. See also James Kent to William Coleman, May 12, 1817 ( ALS , Columbia University Libraries).

Certain reasonable deductions can be made from the evidence presented by Kent’s notes. The ink clearly reveals that the three notes were made at different times. The information in part I of the notes was obtained from someone other than Hamilton, for otherwise Kent would not have written in part II “that Mr. Hamilton told me.” The information in part II must have been given to Kent in a conversation, for it is evident that Kent was not sure that he remembered what Hamilton had said or that Hamilton could remember, without reference to a copy of The Federalist , which essays he had written.

Part III—because it refers to Hamilton as “general” (a rank which he attained in 1798), and because the conversation alluded to took place in Albany—must have been made between 1800, the year in which Hamilton resumed his law practice after completing his duties as inspector general of the Army, and his death in 1804. The third section of Kent’s memorandum also indicates that Hamilton corrected and approved the Kent list. It constitutes, therefore, the most reliable evidence available on Hamilton’s claims of authorship. It should be noted, however, that Kent later doubted the accuracy of Hamilton’s memory, for on the page opposite his memorandum he pasted a copy of the article from the City of Washington Gazette , which stated that Madison had written essays 10, 14, 17, 18, 19, 21, 37–58, 62–63, and that Jay was the author of essays 2, 3, 4, 5, 64. Underneath this clipping Kent wrote:

“I have no doubt Mr. Jay wrote No 64 on the Treaty Power—He made a Speech on that Subject in the NY Convention, & I am told he says he wrote it. I suspect therefore from internal Ev. the above to be the correct List, & not the one on the opposite page.” 31

A comparison of the Kent list (for those essays claimed by Hamilton) with the Gideon edition (for those essays claimed by Madison) makes it clear that there is room for doubt only over the authorship of essays 18, 19, 20, 50, 51, 52, 54–58, and 62–63. About three of these—18, 19, and 20—there should be no dispute, for there is a statement by Madison which Hamilton’s claim does not really controvert. On the margin of his copy of The Federalist opposite number 18 Madison wrote:

“The subject matter of this and the two following numbers happened to be taken up by both Mr. H and Mr. M. What had been prepared by Mr. H who had entered more briefly into the subject, was left with Mr. M on its appearing that the latter was engaged in it, with larger materials, and with a view to a more precise delineation; and from the pen of the latter, the several papers went to the Press.”

The problem of determining the authorship of these three essays is merely one of deciding on the comparative contributions of the two men. Although there are several sentences which are very similar to remarks Hamilton recorded in the outline for his speech of June 18, 1787, on the Constitution, most of the material was undoubtedly supplied by Madison who without doubt wrote these essays. Essay 20, for example, is virtually a copy of notes which Madison had taken in preparation for the Constitutional Convention. 32 On the other hand, Hamilton, however slight his contribution, did contribute to these essays. The authorship of 50, 51, 52, 54, 55, 56, 57, 58, 62, and 63 is more difficult to determine, 33 but Madison’s claim as represented by the Gideon edition appears more convincing than Hamilton’s claim as represented by the Kent list.

Internal evidence has proved to be of little assistance in determining the authorship of The Federalist . The ablest studies in this field are those by Edward G. Bourne 34 and J. C. Hamilton. 35 Bourne attributes all disputed essays to Madison; J. C. Hamilton asserts that they were written by his father. Bourne and J. C. Hamilton attempt to prove their respective cases by printing excerpts from the disputed essays parallel to similar, and sometimes identical, passages from other writings by each man. Bourne presents very convincing evidence for Madison’s authorship of numbers 49, 51, 53, 62, 63, and a fair case for Madison having written numbers 50 and 52; his case for 54, 55, 56, 57, and 58 is particularly weak as he offers no evidence from Madison’s other writings and relies on the argument that, as essays 48–58 are a group, the author who wrote the earlier essays must also have written the later ones in the group. J. C. Hamilton, on the other hand, produces some evidence that Hamilton wrote essays 55–58, and he offers contrived and unconvincing arguments in support of Hamilton’s authorship of the remaining disputed essays. The significant point, however, is that each man was able to find evidence that his candidate wrote all the disputed essays. The contradictory conclusions of these two men—one of whom studied intensively the previous writings of Madison and the other whose life-long study of his father gave him a knowledge of Hamilton’s writings which never has been excelled—point up the difficulties of deciding this dispute on the basis of internal evidence.

The problems posed by internal evidence are made even more difficult by the fact that both Hamilton and Madison defended the Constitution with similar arguments and by the fact that they both had a remarkably similar prose style. To attempt to find in any of the disputed essays words which either man used and which the other never employed is futile, if only because the enormous amount which each wrote allows the assiduous searcher to discover almost any word in the earlier or subsequent writings of both. 36 The search for parallel statements in the disputed essays and in earlier writings is also an unrewarding enterprise. Madison doubtless did not approve of the ideas expressed in Hamilton’s famous speech on June 18, 1787, to the Convention; but before 1787 both men agreed on the weaknesses of the Confederation and the necessity of a stronger central government. 37 The similarity of their thinking is particularly apparent to one who examines their collaboration when they were both members of the Continental Congress in 1783. Their later political differences prove little about what they wrote in 1787–88.

If one were to rely on internal evidence, it would be impossible to assign all the disputed essays to either Hamilton or Madison. While such evidence indicates that Madison surely wrote numbers 49–54 and probably 62–63, it also suggests that Hamilton wrote 55–58. In this edition of Hamilton’s writings, however, greater weight is given to the claims made by the disputants than to internal evidence. Madison’s claims were maturely considered and emphatically stated; Hamilton, on the other hand, showed little interest in the question, and he died before it had become a matter of acrimonious controversy. But the fact remains that Hamilton’s claims have never been unequivocally refuted, and the possibility remains that he could have written essays 50–52, 54–58, 62–63. As a consequence, these essays have been printed in this edition of Hamilton’s writings. Madison’s adherents may, however, derive some consolation from the fact that in the notes to each of these essays it is stated that Madison’s claims to authorship are superior to those of Hamilton.

1 .  The most important of these was by “Cato,” presumably George Clinton. The first “Cato” letter was published in The New-York Journal, and Weekly Register on September 27, 1787.

2 .  See, for example, the two articles by “Caesar” ( September 28 and October 15, 1787 ), which erroneously have been attributed to H.

3 .  An anonymous newspaper article, signed “Aristides” and published in The [New York] Daily Advertiser on October 6, stated that H’s absence from the city prevented him from defending himself against newspaper attacks. An entry in H’s Cash Book dated November 4 (see “Cash Book,” March 1, 1782–1791 ) indicates that he attended the October session of the Supreme Court in Albany.

4 .  The story was first related in Hamilton, History description begins John C. Hamilton, Life of Alexander Hamilton, a History of the Republic of the United States of America (Boston, 1879). description ends III, 369, and has been repeated in most works on The Federalist .

5 .  A memorandum by Madison entitled “The Federalist,” quoted in J. C. Hamilton, ed., The Federalist: a Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865), I, lxxxv.

The essays by William Duer, signed “Philo-Publius,” are published at the end of the second volume of J. C. Hamilton’s edition of The Federalist .

6 .  Morris to W. H. Wells, February 24, 1815, in Sparks, The Life of Gouverneur Morris description begins Jared Sparks, The Life of Gouverneur Morris (Boston, 1832). description ends , III, 339.

7 .  Drafts of only two essays, 5 and 64, both of which were written by John Jay, have been found. The draft of essay 5 is in the John Jay Papers, Columbia University Libraries. The draft of essay 64 is in the New-York Historical Society, New York City. The draft of essay 3 is now owned by Mr. Ruddy Ruggles of Chicago.

8 .  Most writers have stated that all the essays first appeared in The Independent Journal: or, the General Advertiser or New-York Packet . Others (J. C. Hamilton and Henry B. Dawson, for example) were aware that they appeared first in different newspapers, but they did not determine accurately the newspaper in which each essay first appeared.

The Independent Journal and New-York Packet carried the entire series of essays, while The Daily Advertiser ceased to print them after essay 51. The New-York Journal carried only essays 23 through 39. At no time, however, did an essay appear in The New-York Journal without appearing in at least one of the three other papers at the same time. On January 1, 1788, Thomas Greenleaf, editor of the Journal and supporter of George Clinton, printed a letter signed “45 Subscribers” which complained about Greenleaf’s publication of “Publius,” which was already appearing in three newspapers. Shortly after this, on January 30, 1788, Greenleaf discontinued publication of the essays with number 39 (numbered by him 37).

9 .  The full title is The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed Upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, No. 41, Hanover-Square. MDCCLXXXVIII). This is referred to hereafter as the “McLean edition.”

10 .  The Independent Journal: or, the General Advertiser January 1, 1788.

11 .  There is no question that H was the author of the preface and that he corrected the essays. Not only was this stated by McLean’s advertisement, but Madison, writing years later, said that the essays “were edited as soon as possible in two small vols. the preface to the 1st. vol. drawn up by Mr. H., bearing date N. York Mar. 1788” ( Hunt, Writings of Madison description begins Gaillard Hunt, ed., The Writings of James Madison (New York, 1902). description ends , VIII, 411).

12 .  The first French edition, published in two volumes in 1792, listed the authors as “MM. Hamilton, Madisson et Gay, Citoyens de l’Etat de New-York.” The second edition, published in 1795 and also in two volumes, named “MM. Hamilton, Madisson et Jay” as the authors. For a description of these editions, see The Fœderalist: A Collection of Essays, Written in Favor of the New Constitution, as Agreed upon by the Fœderal Convention, September 17, 1787. Reprinted from the Original Text . With an Historical Introduction and Notes by Henry B. Dawson. In Two Volumes (Morrisania, New York, 1864), I, lxiv–lxvi.

13 .  The FEDERALIST, On the New Constitution. By Publius. Written in 1788. To Which is Added, PACIFICUS, On the Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, At Washington’s Head, 1802). Cited hereafter as the “Hopkins edition.”

14 .  J. C. Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xci, xcii.

15 .  Henry B. Dawson, The Fœderalist , I, lxx–lxxi.

16 .  The Federalist, on The New Constitution, written in the year 1788, By Mr. Hamilton, Mr. Madison, and Mr. Jay with An Appendix, containing The Letters of Pacificus and Helvidius, on the Proclamation of Neutrality of 1793; Also the Original Articles of Confederation, and The Constitution of the United States, with the Amendments Made Thereto. A New Edition. The Numbers Written by Mr. Madison corrected by Himself (City of Washington: Printed and Published by Jacob Gideon, Jun., 1818). Cited hereafter as the “Gideon edition.”

17 .  Three days after the publication of the first essay, Hamilton sent George Washington a copy of it. Hamilton wrote that the essay was “the first of a series of papers to be written in its [the Constitution’s] defense.” Washington, of course, knew that H was the author, for H customarily sent to Washington anonymous newspaper articles which he wrote. On December 2, 1787, Madison wrote to Edmund Randolph:

“The enclosed paper contains two numbers of the Federalist. This paper was begun about three weeks ago, and proposes to go through the subject. I have not been able to collect all the numbers, since my return to Philad, or I would have sent them to you. I have been the less anxious, as I understand the printer means to make a pamphlet of them, when I can give them to you in a more convenient form. You will probably discover marks of different pens. I am not at liberty to give you any other key, than, that I am in myself for a few numbers; and that one, besides myself was a member of the Convention.” ( Hunt, Writings of Madison description begins Gaillard Hunt, ed., The Writings of James Madison (New York, 1902). description ends , V, 60–61.)

18 .  The first edition of The Federalist which attributed specific essays to individual authors appeared as the second and third volumes of a three-volume edition of H’s writings published in 1810 ( The Federalist, on the new constitution; written in 1788, by Mr. Hamilton, Mr. Jay, and Mr. Madison … A new edition, with the names and portraits of the several writers . In Two Volumes [New York, published by Williams & Whiting, 1810]).

19 .  The letter in The Port Folio of November 14, 1807, reads as follows:

“Mr. OLDSCHOOL,

“The Executors of the last will of General HAMILTON have deposited in the Publick Library of New-York a copy of ‘ The Federalist ,’ which belonged to the General in his lifetime, in which he has designated, in his own hand-writing, the parts of that celebrated work written by himself, as well as those contributed by Mr. JAY and Mr. MADISON. As it may not be uninteresting to many of your readers, I shall subjoin a copy of the General’s memorandum for publication in ‘The Port Folio.’   M.

“Nos. 2, 3, 4, 5, 54 Mr. JAY. Nos. 10, 14, 37, to 48 inclusive, Mr. MADISON. Nos. 18, 19, 20, Mr. HAMILTON and Mr. MADDISON jointly—all the rest by Mr. HAMILTON.”

20 .  There are several lists other than those subsequently discussed in the text. On the flyleaf of volume 1 of his copy of The Federalist , Thomas Jefferson wrote the following: “No. 2. 3. 4. 5. 64 by Mr. Jay. No. 10. 14. 17. 18. 19. 21. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 62. 63. by Mr. Madison. The rest of the work by Alexander Hamilton.” Jefferson’s copy of The Federalist , now in the Rare Book Room of the Library of Congress, came to him indirectly from H’s wife, Elizabeth. It bears the inscription: “For Mrs. Church from her Sister . Elizabeth Hamilton.” The words, “For Mrs. Church from her Sister ,” are in the handwriting of Elizabeth Hamilton. Angelica Schuyler Church, despite her admiration for her brother-in-law, had long been a friend of Jefferson and must have sent her copy of The Federalist to him. It is not known from whom Jefferson got his information on the authorship of the essays, but presumably it was from Madison. It will be noted that there is only one minor difference between Jefferson’s attribution of the essays and that made by Madison: Jefferson attributed essay 17 to Madison. A facsimile is printed in E. Millicent Sowerby, Catalog of the Library of Thomas Jefferson (Washington, D.C., 1953), III, 228.

On the title page of George Washington’s copy of The Federalist there is an assignment of authorship which reads as follows: “Jay author—1, 2, 3, 4, 5, and 54. Madison—10, 14, 37–48 exclusive of last. 18, 19, 20, productive of Jay, AH and Madison. All rest by Gen’l Hamilton.” This memorandum is in an unidentified handwriting. Except for two differences it conforms to the Benson list. Without more information on the source of the list, its reliability is highly suspect (Washington’s copy of The Federalist is in the National Archives).

Henry Cabot Lodge in his edition of The Federalist ( HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , XI, xxvii), placed in evidence lists of authors which he found in copies of The Federalist owned by Fisher Ames and George Cabot. Both correspond to the Benson list.

21 .  Jay’s authorship of these essays is incontestable. H supposedly stated in the Benson list that he wrote 64 and that Jay was the author of 54. The draft of 64, in the writing of Jay, is in the New-York Historical Society, New York City. Both H and Madison agreed that Jay wrote 2, 3, 4, and 5.

That Jay contributed only five essays was due to an attack of rheumatism which lasted through the winter of 1787. It was not due, as his earlier biographers stated, to an injury which he received in the “Doctors’ Riot” in New York. The riot did not occur until April, 1788, by which time most of the “Publius” essays had been written (Frank Monaghan, John Jay [New York, 1935], 290).

22 .  “I take upon me to state from indubitable authority,” Corrector wrote “that Mr. Madison wrote Nos. 10, 14, 18, 19, 20, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, 63, and 64. Mr. Jay wrote Nos. 2, 3, 4, and 5; and Mr. Hamilton the residue” ([Washington] National Intelligencer , March 20, 1817).

23 .  Benjamin Rush, the oldest son of Richard, sent Henry B. Dawson the following description of the notes in the edition of The Federalist owned by his father: “On a fly-leaf of the second volume there is the following memorandum in my father’s handwriting. I copy it exactly as it appears: ‘The initials, J.M. J.J. and A.H. throughout the work, are in Mr. Madison’s hand, and designate the author of each number. By these it will be seen, that although the printed designations are generally correct, they are not always so’” (Benjamin Rush to Dawson, August 29, 1863, New-York Historical Society, New York City).

Madison’s attribution of authorship, according to Benjamin Rush, was exactly the same as that which the Virginian authorized in the Gideon edition.

24 .  The anonymous author of the article in the City of Washington Gazette stated that Madison wrote essays 10, 14, 17, 18, 19, 21, 37–58, 62–63, that Jay was the author of essays 2, 3, 4, 5, and 64, and that H wrote the rest.

25 .  Gideon, p. 3. In this edition, essays 10, 14, 18–20, 37–58, 62–63 are assigned to Madison; 2, 3, 4, 5, and 64 to Jay; and the remainder to H. Madison’s copy of The Federalist , with corrections in his handwriting, is in the Rare Book Room of the Library of Congress.

26 .  The memorandum by H, as printed by William Coleman, reads as follows: “Nos. 2. 3. 4. 5. 54, Mr. Jay; Nos. 10, 14, 37 to 48 inclusive, Mr. Madison; Nos. 18, 19, 20, Mr. Hamilton and Mr. Madison jointly; all the rest by Mr. Hamilton” ( New-York Evening Post , March 25, 1817).

27 .  According to Coleman the memorandum was deposited by Egbert Benson in “the city library,” as the New York Society Library was then sometimes known. The remainder of the story related in this paragraph is taken from J. C. Hamilton’s account of a “ Copy of a statement in my possession made for me by Egbert Benson, Esq., a nephew of Judge Benson.” It is quoted in Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii.

28 .  New-York Evening Post , January 23, 1818.

The volume from which the memorandum was stolen may have been at one time in the New York Society Library; however, it is no longer there. That library has no McLean edition of The Federalist that bears any marks which indicate that a piece of paper once had been pasted on the inside cover.

29 .  Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii. The italics have been inserted.

J. C. Hamilton did not get this statement from Robert Benson. It was, as has been stated, from the “ Copy of a statement in my possession made for me by Egbert Benson, Esq., a nephew of Judge Benson” ( ibid. , xcvii).

30 .  For the attribution of authorship which H made in his copy of The Federalist , see note 20.

H’s copy is now in neither the New York Society Library, the New-York Historical Society, nor the New York Public Library, and those libraries have no record of ever having owned it. G. W. Cole, ed., A Catalogue of Books Relating to the Discovery and Early History of North and South America, The E. D. Church Library (New York, 1907), V, Number 1230, lists an item purporting to be H’s copy of The Federalist with notes in his writing. According to the librarian of the Huntington Library, San Marino, California, which acquired the Church library, the notes were not in the writing of H. The book, which is no longer in the Huntington Library, was sold to an unknown purchaser.

J. C. Hamilton, probably unintentionally, contradicts the statement that the names of the authors in his father’s copy of The Federalist were in H’s handwriting. He stated that his father dictated to him the authors of the essays which he then copied into H’s copy ( The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii).

31 .  Not too much reliance should be placed on Kent’s endorsement of the Madison list in the City of Washington Gazette . According to that list, Madison wrote not only all the disputed essays but also essay 17. As Madison’s most ardent defenders assign this essay to H, it seems that Kent’s statement indicated nothing more than his suspicion that H may have made errors in his assignment of authors of the essays.

While Kent’s statement shows that he doubted the accuracy of the attribution of essays made by H, it raises several questions that cannot satisfactorily be answered. The clipping from the City of Washington Gazette was dated December 15, 1817, and the notes on the opposite page of the flyleaf, as stated in the text, could not have been written later than 1804. How, then, could Kent have written that he doubted that Jay wrote essay 64 when the essay was attributed to Jay on a page which was in front of Kent as he wrote? The only possible answer is that Kent, when writing in 1817 or later, failed to look carefully at the changes which had been made in his earlier memorandum and had his uncorrected list in mind. Whatever the explanation for his later statement, it is at least certain that he did not change the earlier list after he saw the article in the City of Washington Gazette .

32 .  “Notes of Ancient and Modern Confederacies, preparatory to the federal Convention of 1787” ( Madison, Letters description begins James Madison, Letters and Other Writings of James Madison (Philadelphia, 1867). description ends , I, 293–315).

33 .  A favorite argument of those who support Madison’s claim to essays 49–58 of The Federalist is that since those essays constitute a unit, one man must have written all of them. The essays deal with: 1. the necessity of the departments of government having checks on each other, and 2. the House of Representatives. Madison’s defenders, in their desire to prove his authorship, forget that essays 59, 60, and 61, essays which they attribute to H, also deal with the House of Representatives. There are, furthermore, several obvious breaks in continuity among the essays from 48 to 58, at which a change of authors could have taken place. Essay 51, for example, ends the discussion of the necessity that “these departments shall be so far connected and blended as to give to each a constitutional control over the others,” and essay 52 begins the discussion of the House of Representatives. A change could also have occurred after essay 54 or essay 57. This is not to say that changes in authorship did occur; it is to indicate that the “unit” argument will not stand up under scrutiny.

34 .  “The Authorship of the Federalist,” The American Historical Review , II (April, 1897), 443–60.

35 .  The fact that only Bourne and J. C. Hamilton are cited does not mean that other studies of the authorship of The Federalist have been ignored or overlooked. It means rather that other authors, while sometimes introducing new arguments, have relied heavily on the research of Bourne and J. C. Hamilton. To cite all those who have agreed with Bourne or Hamilton would be redundant; to summarize all the arguments of the numerous students of The Federalist —based for the most part on Bourne and Hamilton’s original research—is a task best left to the historiographer of that work.

There have been, of course, other able studies of the authorship of the disputed essays. Among the defenders of H’s claim, Henry Cabot Lodge (“The Authorship of the Federalist,” HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , XI, xv–xlv) and Paul L. Ford (“The Authorship of The Federalist,” The American Historical Review , II [July, 1897], 675–82) have been the most able advocates. The most convincing exponent of Madison’s claim since Bourne is Douglass Adair (“The Authorship of the Disputed Federalist Papers,” The William and Mary Quarterly , 3rd. ser., Vol. I, Numbers 2 and 3 [April and July, 1944], 97–122, 235–64). In two essays which brilliantly summarize the century-old controversy over the authorship of the disputed essays, Adair amplifies the research of Bourne and attempts to assign the disputed essays on the basis of the political philosophy which they reveal.

36 .  See, for example, S. A. Bailey, “Notes on Authorship of Disputed Numbers of the Federalist,” Case and Comment , XXII (1915), 674–75. Bailey credits Madison with sole authorship of the disputed essays on the basis of the use of the word “while” by H and “whilst” by Madison. Although the evidence for Bailey’s conclusion is convincing—and there is far more evidence than he produces—his argument is destroyed by H’s occasional use of “whilst.” In essay 51, for example, H, who himself edited the essays for publication by McLean, substituted “whilst” for “and.” In essay 81, certainly written by H, the word “whilst” is used. Edward G. Bourne (see note 35), to give another example, offers as evidence for Madison’s authorship of essay 56 his use of the word “monitory,” which, according to Bourne, was “almost a favorite word with Madison.” Yet in essay 26, H, in revising the essays for publication in the McLean edition, changed “cautionary” to “monitory.” Similarly, to assign authorship on the basis of differences in the spelling of certain words in different essays—for example, “color” or “colour,” “federal” or “fœderal”—would be hazardous. The editors of the various newspapers in which the essays appeared obviously changed the spelling of certain words to conform to their individual preferences.

37 .  Similarity between a statement in one of the disputed essays and an earlier remark in the writings of either Madison or H is perhaps valid evidence. It does not seem relevant, however, to attempt to prove authorship by reference to the later writings of either of the men. As both presumably read all the essays, they might later have borrowed a statement from a number of The Federalist written by the other without being aware of its source.

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The first amendment, historic document, federalist 1 (1787).

Alexander Hamilton | 1787

On October 27, 1787, Alexander Hamilton published the opening essay of The Federalist Papers — Federalist 1 . The Federalist Papers were a series of 85 essays printed in newspapers to persuade the American people (and especially Hamilton’s fellow New Yorkers) to support ratification of the new Constitution. These essays were written by Alexander Hamilton, James Madison, and John Jay—with all three authors writing under the pen name “Publius.” On September 17, 1787, the delegates to the Constitutional Convention had signed the new U.S. Constitution. This new Constitution was the Framers’ proposal for a new national government. But it was only that—a proposal. The Framers left the question of ratification—whether to say “yes” or “no” to the new Constitution—to the American people. In the Framers’ view, only the American people themselves had the authority to tear up the previous framework of government—the Articles of Confederation—and establish a new one. The ratification process itself embodied one of the Constitution’s core principles: popular sovereignty, or the idea that all political power is derived from the consent of “We the People.” In Federalist 1, Hamilton captured this vision well, framing the stakes of the battle over ratification. In this opening essay, Hamilton called on the American people to “deliberate on a new Constitution” and prove to the world that they were capable of choosing a government based on “reflection and choice,” not “accident and force.”

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AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. 

Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. 

It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable—the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. 

And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. . . . 

It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole. This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.  

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The Federalist Alexander Hamilton, James Madison, and John Jay | Published 1787-1788

The Federalist  is the title given to a series of essays by Alexander Hamilton, James Madison, and John Jay defending the Constitution to New Yorkers in an effort to promote its ratification.  The Federalist  stands as the most comprehensive and systematic articulation by the Founders of the reasoning behind the design of the United States Constitution. The second to last essay in the  Federalist  (No. 84) offers a defense of the Constitutional Convention’s unpopular decision to omit a bill of rights, and therefore not to recognize explicitly the freedom of speech or press.

The Argument Against the Bill of Rights

In  Federalist  No. 84 , Alexander Hamilton, under the pseudonym “Publius,” argues that a bill of rights is not only unnecessary in a well designed constitution but is even dangerous. These arguments reflect a consistent theme in the  The Federalist  that the principal means of protecting the liberty of the individual are institutions of government designed in such a manner as to limit and frustrate its power to infringe on such liberties. The two most famous examples of this kind of institutional thinking in the  Federalist  are its defense of checks and balances and its defense of the large republic as a measure against majority faction. By granting each branch of government a certain limited power over other branches, the Constitution channels the ambition of office-holders, which normally causes them to abuse their power and exceed their lawful limits, toward guarding their powers against the illegitimate expansion of the  other  branches of government. As each branch jealously prevents the other branches from usurping any power not lawfully granted to it, the whole government is kept within its limited mandate. Similarly, by enlarging the representatives’ districts and the total number of representatives, the Constitution uses the dangerous narrow-minded tendencies of political actors against themselves. As the number of narrow and frequently selfish interest groups multiplies, it becomes more difficult for any one of them to dominate an election or to seize control over any part of the government.

In general, then, the Constitution as understood by the  Federalist  does not primarily aim at articulating the legal rights of individuals but at limiting the government’s ability to exceed the narrow boundaries of the powers that are entrusted to it. For this reason, the Constitution seeks to be clear about which specific powers the government  does  have, on the understanding that it does  not  have  any  powers beyond these. Thus, Hamilton argues in  Federalist  84 that to include a bill of rights would suggest, by implication, that if the bill of rights were not there, the government would be permitted to infringe on those rights. It would suggest, in other words, that the government has a great deal of power that is nowhere granted to it in the Constitution.

Justice Scalia on the Federalists’ view of the Bill of Rights

1.   Federalist No. 84

2.   Federalist  No. 38

3.   Federalist  No. 10

4.   Federalist No. 51

5.  Recommended Editions

6.  Footnotes

Federalist  No. 84: “Certain General and Miscellaneous Objections to the Constitution Considered and Answered” (Alexander Hamilton)

The text below is courtesy of the Avalon Project . A two-page edited version focusing on the freedom of the press that is suitable for classroom use can be found in The First Amendment: Freedom of the Press. Edited by Garrett Epps. Amherst: Prometheus Books, 2008.   Find it on Amazon.  It is also in The Founders’ Constitution. Vol. 5 (Doc. 4). Edited by Philip B. Kurland and Ralph Lerner. Chicago: University of Chicago Press, 1986.  Read it online at the Founder’s Constitution through the Liberty Fund , or  Find it on Amazon .

To the People of the State of New York:

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2 “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3 “No bill of attainder or ex-post-facto law shall be passed.” Clause 7 “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3 “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3, of the same article “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section “The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,[Footnote 1] in reference to the latter, are well worthy of recital: “To bereave a man of life, says he, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the BULWARK of the British Constitution.”[Footnote 2]

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.[Footnote 3] And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper Õsay the objectorsÃ¥ to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body.” This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with theirrepresentatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the of

fspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that “STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.”4 The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.

The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.

Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.

But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.

The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.

Federalist  No. 38: “…the Incoherence of the Objections to the New Plan Exposed” (James Madison)

The following are two excerpts from Federalist No. 38 that touch on Anti-federalist complaints about the absence of a bill of rights in the Constitution. They are edited from the text found on  the Avalon Project.

[Of the Anti-federalists:]

This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election.

It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress.  Is a bill of rights essential to liberty? The Confederation has no bill of rights.  Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.

Federalist  No. 10: “…The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection” (James Madison)

The text below is  courtesy of the Avalon Project.

AMONG the  numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

Federalist  No. 51: “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments” (James Madison)

The text below is  courtesy of the Avalon Project .

TO WHAT expedient , then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

[Link]  Transcription courtesy of the Avalon Project .

Recommended Editions

Kesler, Charles R. and Clinton Rossiter, eds.  The Federalist Papers.  New York: Signet Classics, 2003.

Recommended print edition of the complete  Federalist .

Find it on Amazon.

The complete  Federalist  online.

Read it at the Avalon Project.

[Footnote 1] Vide Blackstone’s “Commentaries,” vol. 1., p. 136.

[Footnote 2] Vide Blackstone’s “Commentaries,” vol. iv., p. 438.

[Footnote 3] To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.

Weiner, Greg. “Federalist 84: Completing the Declaration of Independence.”  Library of Law and Liberty . July 17, 2017.

Read it at the Library of Law and Liberty.

Gotchy, Joseph R. “Federalists and Anti-Federalists: Is a Bill of Rights Essential to a Free Society?”  OAH Magazine of History  8, no. 4 (1994): 45-48.

This is a lesson plan meant to introduce students to the controversial origins of the bill of rights.

Find it on JSTOR (restricted access).

Rakove, Jack N. “James Madison and the Bill of Rights: A Broader Context.”  Presidential Studies Quarterly  22, no. 4 (1992): 667-677.

This article examines Madison’s attitudes toward the bill of rights in comparison with the other federalists, and therefore touches upon Hamilton’s argument from  Federalist  84.

Find it on JSTOR (free access).

Slonim, Shlomo. “The  Federalist Papers  and the Bill of Rights.”  Constitutional Commentary  20 (2003): 151-161.

Download from the University of Montana Digital Conservancy (pdf).

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The Federalist : a commentary on the Constitution of the United States, being a collection of essays written in support of the Constitution agreed upon September 17, 1787, by the Federal convention

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What are the federalist papers, the federalist compromise.

The dispute between the Federalists and Anti-Federalists played a massive role in shaping the United States following the Revolutionary War. Each side had clear ideas on how the nation should evolve and the most suitable government structure. 

Eventually, a compromise led to a final draft of the constitution that favored many fundamental Federalist beliefs. The next step was to convince Anti-Federalist states to ratify it – which is where the Federalist Papers were born. What are the Federalist Papers, why did they take their serialized form, and why are they important? 

Why Were the Federalist Papers Written?

The Federalist Papers were a series of essays written by a group called Publius. Under this assumed pen name, they wrote detailed arguments in favor of the United States Constitution in its final draft and against the Articles of Confederation.

The aim was to further the Federalist campaign, help convince Anti-Federalists that the constitution was a good idea, and aid the ratification process.

At first, the papers formed a long-running series in leading New York newspapers. They were later collected into a bound book and then further revised long after the adoption of the constitution. 

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Federalist Ideals and the Creation of the Constitution

In May of 1787, a group of delegates from 12 out of 13 states convened in Philadelphia to discuss the Articles of Confederation’s limitations. This original constitution acted as a framework for the newly-independent United States. While important and effective to a point, it was also flawed in terms of the powers given and the areas not touched upon.

Congress believed that the convention in Pennsylvania would be an excellent way to make a few necessary amendments to the document so the country could evolve.

What transpired, however,  was that the delegates spent months arguing over the different forms of government, the powers it should have, and the need for a greater centralized system. The convention was prolonged due to debates over the plans of the Federalists and Anti-Federalists and disputes surrounding proposed compromises.

One of the main focuses of the Federalist campaign was the need for a stronger centralized government that could deal with federal law, taxation, and establishing a better system for all United States citizens.

Views varied between the members about the details on how to build this system, with some too focused on emulating Great British. The Anti-Federalists, meanwhile, feared that smaller states with few representatives would be at a disadvantage and that their people would suffer as a consequence. 

The Constitution Could Not Become Official Without Ratification

Eventually, a resolution was made, and a constitution was drafted. There was enough compromise in the share of power and the representation of states to keep most people happy – although some delegates still refused to sign. The next step was to pass it on to Congress, who approved and sent it out for ratification.

This is where things got a little more difficult for the Federalists, who were hoping for a quick process and getting on with the new proposals. It took until the middle of the following year to receive the majority necessary for ratification to take place. The issues were still hotly debated in states with a fervent Anti-Federalist leaning. 

Who Wrote the Federalist Papers?

One of the interesting things about this Federalist Papers series was that it was not a collaborative effort on each essay, but rather a shared task to create the whole series. Each of the three authors that made up the Publius collective worked on their pieces and this often reflected areas of interest and expertise.

We can see a divide by author and subject, with John Jay taking one block before pulling out, and Alexander Hamilton and James Madison working out in-depth concepts over a series of installments. However, to the average reader in New York, one anonymous author was responsible.

All three men had their part to play while shaping the new United States, to varying degrees. Hamilton was a headstrong Federalist who worked on the final draft, Madison was at the convention the longest and part of that final committee, and Jay was a former president of the Continental Congress .

For a long time, no one knew who had written these essays. It was clear that it was an educated Federalist with some links to the causes, as the pieces were so detailed on the different factors and arguments in favor of the constitution.

Alexander Hamilton came up with the name Publius as a pseudonym. This was taken from a Roman linked with the success of establishing the Roman Empire. Hamilton surely felt that he and his peers were embarking on a very similar mission in the creation of the new United States government and a more comprehensive constitution following the revolution. 

Serialization of Essays in New York Newspapers

The trait that initially made these essays special and effective for the campaign was their episodic publication. Rather than sit together to try and compile a more extensive pamphlet or other published work, the three men wrote installments for print in New York newspapers .

There were many benefits to this as they could help retain readers’ interest and keep the subject in the public eye for as long as needed. It would have been all too easy for New Yorkers to ignore a more extensive pamphlet or a book on a shelf, but they had smaller opinion pieces each week to enforce the message of Federalism and bring them around to the idea.

Smaller chapters also meant that each of the three men involved in the Federalist Papers could have their say and share expertise in key areas. There is a strong ratio in the accredited authorship of the pieces, and some dispute over the authenticity of this. But, each writer could contribute effectively.

The Importance of Serialization

The serialization approach also meant that the authors could break down their argument into clear sections and discussions. Staunch anti-federalists may not have been inclined to read the whole thing, but they may have been curious enough to read a section on a matter close to their heart.

For example, some sections in the papers focus on the new government’s structure. This had been a big concern in opposing states that argued about representation and the powers of the two houses.

The new United States Constitution was firmly in favor of an effective checks and balances system with solid but controlled powers for the president. Even then, there had been a great debate at the Constitutional Convention over the precise details on how the houses would run, the election of representatives, and the impact on smaller states. 

As the Ratification Process Progressed, So Did the Essays

At first, this system of weekly newspaper articles made a lot of sense and helped keep the issue at the forefront of state politics for many months. The first pieces went to print in October of 1787 – a simple introduction to the Federalist Papers that outlined ideas and what was to come. The last was a summary of closing remarks in August of the following summer.

This timeline followed the ratification process of the constitution, meaning there was a new article each week while most states deliberated and eventually signed in favor of the constitution. The first state to do so was Delaware, and there was a steady stream after that.

This first signature came in the December of 1787, just as the papers got into a good rhythm and detailed points. But, New York was yet to be swayed, and the Anti-Federalist movement still had the majority. 

The Significance of New York

This ongoing saga of essays was long but necessary in New York. The decision to publish the essays in New York newspapers made the most sense at the time because of the political landscape. Given the nature of media at the time, there wouldn’t have been a way of reaching all citizens of the thirteen states simultaneously.

Word of mouth and letters may have highlighted passages of the essays to those in other states, but it was primarily for the New York audience. New York was a prime target because of their reluctance to sign and the fact that the new United States needed them far more than the others holding out. Rhode Island could be sacrificed if absolutely necessary, but New York had too high a population, too much wealth, and strong geographical assets. 

Defending the Lack of a Bill of Rights

Another important thing about this series of persuasive papers is the issue of the Bill of Rights . This was one of the key negotiation points for a lot of states that were concerned about the powers of a centralized government. The fear here was that states and their citizens would lose basic rights, and the federal government would take advantage. The Federalists felt this wasn’t necessary and that the unwritten rights in the constitution were enough on their own.

As the Federalist Papers continued with their aim to persuade people about the new document, one of the last pieces addressed this issue. Alexander Hamilton wrote Federalist 84 to openly oppose the concept of the Bill of Rights and hopefully put that issue to bed for good. It was unsuccessful, and the promise of a new Bill of Rights became the bargaining chip to achieve full ratification of the document. 

The Federalist Papers Became The Federalist as a Bound Collection

Some interested in American history from this period may know the Federalist Papers as The Federalist instead. There was another edition in 1788 where the essays were collected and bound into a book. The impact of this is debatable as there was only a 500 edition run. It wasn’t going to reach a wide audience in the same way as the newspaper columns. But, it would have been sought after by elite member of society who wanted to review all the arguments put forward and could afford it for their collection.

This version contained 77 of the 85 essays. The name Publius remained in place so that the three authors could retain their anonymity. There were revisions and corrections to the pieces, however, from Hamilton. This may be where later issues of accreditation stemmed from. James Madison would later dispute that Hamilton was solely responsible for the 51 claimed.

Then, the second version in 1818 revealed their identities. It didn’t matter who knew at this stage as the constitution was in place, and the worst of the disputes were long over. Furthermore, Hamilton had passed away many years before, so couldn’t object or suffer any consequences. His death meant that Madison took over the role of amending and correcting pieces.

What the Federalist Papers Mean Today

The Federalist Papers and subsequent Federalist books are all important when it comes to an understanding of the viewpoints of those involved. There are still arguments about the meanings behind aspects of the constitution and the need for new amendments to the Bill of Rights. So, it is helpful to see the original concepts and that dispute about the Bill of Rights.

The concept of the original Federalist Papers wouldn’t work in modern society. Print media still has its place in swaying opinions, but can only reach a very targeted demographic.

Today, Publius would either be a group of faceless activists with a podcast or high-profile analysts posting concise 240 character arguments on Twitter. Either way, the published works at the end and a good book deal could still be a possibility. The methods and arguments have adapted, but much remains the same. 

Alicia Reynolds

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The Federalist Papers: A Collection of Essays Written in Favour of the New Constitution Paperback – September 8, 2015

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The Federalist Papers are a collection of eighty-five articles and essays written by Alexander Hamilton, James Madison, and John Jay in favor of ratifying the United States Constitution. First appearing in 1787 as a series of letters to New York newspapers, this collective body of work is widely considered to be among the most important historical collections of all time. Although the authors of The Federalist Papers foremost intended to influence the vote in favor of ratifying the Constitution, in Federalist No. 1 Hamilton explicitly set their debate in broader political terms. “It has been frequently remarked,” he wrote, “that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

Among the many highlights of these acclaimed essays is Federalist No. 10, in which Madison discusses the means of preventing rule by majority faction and advocates for a large, commercial republic. This is generally regarded as the most important of the eighty-five essays from a philosophical perspective, and it is complemented by Federalist No. 14, in which Madison takes the measure of the United States, declares it appropriate for an extended republic, and concludes with a memorable defense of the Constitution. In Federalist No. 70, Hamilton advocates for a one-man chief executive, and in Federalist No. 78 he persuasively lays the groundwork for the doctrine of judicial review by federal courts.

Though centuries old, these timeless essays remain the benchmark of American political philosophy. As eloquently stated by famed historian Richard B. Morris, The Federalist Papers serve as an "incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer."

• Print length 440 pages
• Language English
• Publication date September 8, 2015
• Dimensions 6.14 x 1 x 9.21 inches
• ISBN-10 0692528318
• ISBN-13 978-0692528310
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• Publisher ‏ : ‎ Coventry House Publishing (September 8, 2015)
• Language ‏ : ‎ English
• Paperback ‏ : ‎ 440 pages
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• ISBN-13 ‏ : ‎ 978-0692528310
• Item Weight ‏ : ‎ 14.4 ounces
• Dimensions ‏ : ‎ 6.14 x 1 x 9.21 inches
• #129 in History & Theory of Politics

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The Federalist: a collection of essays, written in favour of the new Constitution, as agreed upon by the Federal Convention, September 17, 1787. : In two volumes. Vol. I[-II.]

To the extent possible under law, the Text Creation Partnership has waived all copyright and related or neighboring rights to this keyboarded and encoded edition of the work described above, according to the terms of the CC0 1.0 Public Domain Dedication (http://creativecommons.org/publicdomain/zero/1.0/). This waiver does not extend to any page images or other supplementary files associated with this work, which may be protected by copyright or other license restrictions. Please go to http://www.textcreationpartnership.org/ for more information.

• to the reader
• NUMBER I. Introduction.
• NUMBER II. Concerning Dangers from foreign Force and Influence.
• NUMBER III. The same Subject continued.
• NUMBER IV. The same Subject continued.
• NUMBER V. The same Subject continued.
• NUMBER VI. Concerning Dangers from War between the States.
• NUMBER VII. The Subject continued and particular Causes enumerated.
• NUMBER VIII. The Effects of internal War in producing standing Armies and other Institutions un|friendly to Liberty.
• NUMBER IX. The Utility of the Union as a Safeguard against domestic Faction and Insurrection.
• NUMBER X. The same Subject continued.
• NUMBER XI. The Utility of the Union in Respect to Com|merce and a Navy.
• NUMBER XII. The Utility of the Union in respect to Revenue.
• NUMBER XIII. The same Subject continued, with a View to Economy.
• NUMBER XIV. An Objection drawn from the Extent of Coun|try answered.
• NUMBER XV. Concerning the Defects of the present Confe|deration, in Relation to the Principle of Legislation for the States in their collective Capacities.
• NUMBER XVI. The same Subject continued, in Relation to the same Principles.
• NUMBER XVII. The Subject continued, and illustrated by Examples to show the Tendency of Federal Governments, rather to Anarchy among the Members than Tyranny in the Head.
• NUMBER XVIII. The Subject continued, with farther Examples.
• NUMBER XIX. The Subject continued, with farther Examples.
• NUMBER XX. The Subject continued, with farther Examples.
• NUMBER XXI. Further Defects of the present Constitution.
• NUMBER XXII. The same Subject continued and concluded.
• NUMBER XXIII. The necessity of a Government, at least equally energetic with the one proposed.
• NUMBER XXIV. The Subject continued, with an Answer to an Objection concerning standing Armies.
• NUMBER XXV. The Subject continued with the same View.
• NUMBER XXVI. The Subject continued with the same View.
• NUMBER XXVII. The Subject continued with the same View.
• NUMBER XXVIII. The same Subject continued.
• NUMBER XXIX. Concerning the Militia.
• NUMBER XXX. Concerning Taxation.
• NUMBER XXXI. The same Subject continued.
• NUMBER XXXII. The same Subject continued.
• NUMBER XXXIII. The same Subject continued.
• NUMBER XXXIV. The same Subject continued.
• NUMBER XXXV. The same Subject continued.
• NUMBER XXXVI. The same Subject continued.
• NUMBER XXXVII. Concerning the Difficulties which the Con|vention must have experienced in the For|mation of a proper Plan.
• NUMBER XXXVIII. The Subject continued, and the incoherence of the Objections to the Plan exposed.
• NUMBER XXXIX. The Conformity of the Plan to Republican Principles: An Objection in Respect to the Powers of the Convention, examined.
• NUMBER XL. The same Objection further examined.
• NUMBER XLI. General View of the Powers proposed to be vested in the Union.
• NUMBER XLII. The same View continued.
• NUMBER XLIII. The same View continued.
• NUMBER XLIV. The same View continued and concluded.
• NUMBER XLV. A further Discussion of the supposed Danger from the Powers of the Union, to the State Governments.
• NUMBER XLVI. The Subject of the last Paper resumed; with an Examination of the comparative Means of Influence of the Federal and State Governments.
• NUMBER XLVII. The Meaning of the Maxim, which requires a Separation of the Departments of Power, examined and ascertained.
• NUMBER LXVIII. The same Subject continued, with a View to the Means of giving Efficacy in Practice to that Maxim.
• NUMBER LXIX. The same Subject continued with the same View.
• NUMBER L. The same Subject continued with the same View.
• NUMBER LI. The same Subject continued with the same View, and concluded.
• NUMBER LII. Concerning the House of Representatives, with a View to the Qualifications of the Electors and elected, and the Time of Service of the Members.
• NUMBER LIII. The same Subject continued, with a View of the Term of Service of the Members.
• NUMBER LIV. The same Subject continued with a View to the Ratio of Representation.
• NUMBER LV. The same Subject continued in Relation to the total Number of the Body.
• NUMBER LVI. The same Subject continued in Relation to the same Point.
• NUMBER LVII. The same Subject continued in Relation to the supposed tendency of the Plan of the Con|vention to elevate the few above the many.
• NUMBER LVIII. The same Subject continued in Relation to the future augmentation of the Members.
• NUMBER LIX. Concerning the Regulation of Elections.
• NUMBER LX. The same Subject continued.
• NUMBER LXI. The same Subject continued and concluded.
• NUMBER LXII. Concerning the Constitution of the Senate, with regard to the Qualifications of the Members, the Manner of appointing them, the Equality of Representation, the Number of the Senators and the Duration of their Appointments.
• NUMBER LXIII. A further View of the Constitution of the Senate, in regard to the Duration of the Appointment of its Members.
• NUMBER LXIV. A further View of the Constitution of the Senate, in regard to the Power of making Treaties.
• NUMBER LXV. A further View of the Constitution of the Senate, in Relation to its Capacity as a Court for the Trial of Impeachments.
• NUMBER LXVI. The same Subject continued.
• NUMBER LXVII. Concerning the Constitution of the President: A gross Attempt to misrepresent this Part of the Plan detected.
• NUMBER LXVIII. The View of the Constitution of the President continued, in Relation to the Mode of Ap|pointment.
• NUMBER LXIX. The same View continued, with a Comparison between the President and the King of Great-Britain on the one Hand, and the Governor of New-York on the other.
• NUMBER LXXX. The same View continued in Relation to the UNITY of the Executive, and with an Examination of the Project of an Executive Council.
• NUMBER LXXI. The same View continued, in regard to the Duration of the Office.
• NUMBER LXXII. The same View continued in Regard to the Re-eligibility of the President.
• NUMBER LXXIII. The same View continued, in Relation to the Provision concerning Support, and the Power of the Negative.
• NUMBER LXXIV. The same View continued, in Relation to the Command of the national Forces, and the Power of pardoning.
• NUMBER LXXV. The same View continued in Relation to the Power of making Treaties.
• NUMBER LXXVI. The same View continued, in Relation to the Appointment of the Officers of the Govern|ment.
• NUMBER LXXVII. The View of the Constitution of the President concluded, with a further Consideration of the Power of Appointment, and a concise Examination of his remaining Powers.
• NUMBER LXXVIII. A View of the Constitution of the Judicial Department, in Relation to the Tenure of good Behaviour.
• NUMBER LXXIX. A further View of the Judicial Department, in Relation to the Provisions for the Sup|port and Responsibility of the Judges.
• NUMBER LXXX. A further View of the Judicial Department, in Relation to the Extent of its Powers.
• NUMBER LXXXI. A further View of the Judicial Department, in Relation to the Distribution of its Authority.
• NUMBER LXXXII. A further View of the Judicial Depart|ment, in reference to some miscellaneous Questions.
• NUMBER LXXXIII. A further View of the Judicial Department, in Relation to the Trial by Jury.
• NUMBER LXXXIV. Concerning several miscellaneous Objections.
• NUMBER LXXXV. Conclusion.
• ARTICLE II.
• ARTICLE III.
• ARTICLE IV.
• ARTICLE VI.
• ARTICLE VII.
• IN CONVENTION, Monday, September 17, 1787.
• IN CONVENTION, SEPTEMBER 17, 1787.

The Ratification Debate

After a long, hot summer deliberating on the Constitution, the delegates to the Convention returned to their home states in late September of 1787 knowing that their work was unfinished.

The Constitution was written and signed, but its ratification by the people was far from certain. As specified in Article VII of the Constitution, two-thirds, (or nine of the then-thirteen states) would have to ratify the Constitution before it could go into effect in those states. And in many of those states, the document was met with increasing skepticism: Had the Convention exceeded its mandate to revise the Articles? Why had the Convention been conducted in secret? The delegates would have to reasonably convince their fellow Americans that the Constitution represented the best way forward for the new nation.

The U.S. Constitution

Many of the debates about the proper scope of government power that had gone on inside Independence Hall continued on in the states. Those who argued that the Constitution should be ratified became known as Federalists. Not surprisingly, most of the people who had helped write the Constitution were Federalists. James Madison, Alexander Hamilton, and John Jay together wrote a collection of 85 essays that were published in newspapers of the day, arguing for the ratification of the Constitution. These essays became known as  The Federalist Papers  (1787-1788),and are still today referenced as the most authoritative source (along with Madison’s  Notes of the Federal Convention ) on the meaning of the Constitution.

People who opposed the Constitution were known as Anti-Federalists. Their objections were wide and varied. They pointed to the national government’s power to tax and its supremacy over state law as other signs of danger. One point of major concern was the “necessary and proper” clause. This clause in Article I, Section 8, which came at the end of the list of Congress’s powers, gave Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof”. The Anti-Federalists worried that Congressmen would see this clause as an additional grant of power, rather than a means to carry out the enumerated powers in Article I. Today this clause is sometimes referred to as the “elastic clause” (a term which would probably have caused the Anti-Federalists to say “I told you so!”) because some do in fact take it to mean Congress can “stretch” its powers to have more control over the states and the people.

The Federalist, essays written in support of the Constitution

Alexander Hamilton defended the clause in  Federalist No. 33 , asserting that the grant of power to make laws necessary and proper to carry out its listed powers was simply empowering Congress to actually bring about the ends it had been granted the power to accomplish. He asked rhetorically,

“What is the ability to do a thing, but the power of employing the means necessary to its execution?” The people, furthermore, would have a final check on the power of Congress: “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution…” (Alexander Hamilton, Federalist No. 33, 1788).

In  Federalist No. 44 , James Madison noted that the Necessary and Proper Clause had been “assailed” more than almost any other. He defended it on the grounds that it was the best option available, and if lawmakers abused it, it was subject to the same safeguards built into the Constitution that checked Congress’s power. If Congress went outside the bounds of the power delegated to it, the executive and judicial branches would provide checks against it, and of course the people could vote out bad Congressmen:

“[I]n the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers” (James Madison, Federalist No. 44, 1788).

But Hamilton’s and Madison’s arguments were not convincing to Patrick Henry. The old republican Henry had “smelt a rat” and therefore declined to attend the Convention. The great orator who a decade earlier had rallied his fellow Virginians against the British crying “Give me liberty, or give me death!” this time put his great speaking skills to work against the new plan of government. He was suspicious of the Constitution for many reasons. For one thing, it began, “We the people,” rather than with a list of the states, as the Articles of Confederation had. Henry asserted that this meant the national government was now over all the people. What, then, would become of the states? Henry was utterly convinced that the plan of government he saw in the Constitution would lead to a “consolidated” government, or one that would overpower all the states. He warned,

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined” (Patrick Henry, Virginia Convention on the Ratification of the Constitution, 1788).

His fellow Virginian George Mason was equally opposed to the Constitution. Mason had attended the Convention but, in the end, refused to sign his name to the document because he believed the rights of the people were not safe. He had many objections to the document, and one was that it lacked a bill of rights.

George Mason, one of three delegates who refused to sign the Constitution.

He and Elbridge Gerry had called for a bill of rights to be included in the document at the Convention. They pointed out that since the Constitution was supreme over state law, state bills of rights were no security. Their appeals were rejected, however, and the Constitution did not include a bill of rights. The Constitution was sent to the states for ratification, and the stage was set for a debate on the merits of the Constitution, including the need for a bill of rights.

Perhaps the most important and radical thing about the ratification debate is that it was a debate. It was a national conversation in which the engagement centered on persuasion and reasonable negotiation, not force.

Related Content

After the Constitution was completed and signed by 39 delegates on September 17, 1787, many of the debates from Independence Hall continued in the debates over ratification in the states. For the Constitution to go into effect, at least nine states would have to ratify (or agree to adopt) it. A party division arose: Federalists argued in favor of ratification, Anti-Federalists against. Leading Federalists James Madison and Alexander Hamilton made a case for ratification in the Federalist Papers. Leading Anti-Federalists were Patrick Henry and George Mason. Mason had attended the Convention but refused to sign the final document, arguing that the central government created by the Constitution would be a threat to liberty and would take away power from the individual states.

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History Resources

Opposing Viewpoints on the Ratification of the US Constitution

By kathy white, lesson overview.

Students will develop a rich understanding of the arguments in favor of and in opposition to the ratification of the US Constitution. They will examine and analyze key excerpts from "Federalist No. 51," George Mason’s Objections to the Constitution, and notes from Alexander Hamilton’s Plan of Government speech. As the students discuss the arguments presented, they will come to understand that Americans did not unilaterally agree on their new form of government.

Lesson Objectives

Students will be able to

• Read critically and analyze primary sources
• Develop a clear understanding of arguments in favor of and in opposition to the ratification of the US Constitution
• Draw logical conclusions
• Construct supporting arguments for both sides of debate
• Demonstrate their skills through a class discussion and exit card

Number of Class Periods

One 45-minute class period

Grade Level

Common core state standards.

CCSS.ELA-LITERACY.RH.6-8.1 CCSS.ELA-LITERACY.RH.6-8.4 CCSS.ELA-LITERACY.RH.6-8.6 CCSS.ELA-LITERACY.SL.8.2 CCSS.ELA-LITERACY.WHST.6-8.2.F CCSS.ELA-LITERACY.WHST.6-8.9

Essential Question

Would you have supported or opposed the ratification of the US Constitution?

Historical Background

The US Constitution was completed in September 1787 after a three-month Constitutional Convention presided over by George Washington. Congress sent the document to each state for ratification, and the debates began. Alexander Hamilton, James Madison, and John Jay argued in The Federalist Papers that the Constitution would give the federal government the necessary powers to be strong and effective for the country as a whole. Opponents argued that too much power invested in the central government, unrestrained by a bill of rights, would lead to tyranny and corruption.

• Document Analysis:  Should We Ratify?
• Excerpts from " Federalist No. 51 ," February 8, 1788, The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed Upon by the Federal Convention, September 17, 1787 , vol. 2 (New York: J. & A. McLean, 1788), pp. 116–122, The Gilder Lehrman Institute of American History, GLC01551
• Excerpt from " Objections of the Honorable George Mason  . . . to the New Constitution," The Freeman’s Journal; or, the North-American Intelligencer , December 5, 1787, The Gilder Lehrman Institute of American History, GLC00259.01
• Excerpts from John Lansing’s Notes on  Alexander Hamilton’s Plan of Government , The Gilder Lehrman Institute of American History, GLC00819.10
• Divide the class into groups of three or four students.
• Distribute the excerpts from "Federalist No. 51."
• "Share read" the text with the students. This is done by having the students follow along silently while you begin reading aloud, modeling prosody, inflection, and punctuation. Ask the class to join in with the reading after a few sentences while you continue to serve as the model for the class. This technique will support struggling readers as well as English language learners (ELL).
• Distribute the document analysis worksheet "Should We Ratify?" You may choose to model the activity with the class for the first text. Otherwise, students should work in their small groups to complete the activity. Key points have been identified in the left column. The students must locate quotations from the text that address those key points and write them in the column on the right.
• Once the students have located all the quotations for "Federalist No. 51," distribute the other two texts, "Objections of the Honorable George Mason . . . to the New Constitution" and "Alexander Hamilton’s Plan of Government." Depending on the students’ abilities and the available time, you may share read the texts with the class or have them read the texts aloud in their groups or independently to themselves. Have the students work in their groups to locate appropriate quotations.
• Moderate a class discussion as the groups report on their selections. You may also have students ask each other about the documents and their answers. Be sure students fully understand all three arguments.

Assessment and Summary

Students will complete an exit card stating how they would vote on ratification and giving three reasons for their decision. They must cite evidence from the texts to support their decisions.

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3.5: The Ratification of the Constitution

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Learning Objectives

By the end of this section, you will be able to:

• Identify the steps required to ratify the Constitution
• Describe arguments the framers raised in support of a strong national government and counterpoints raised by the Anti-Federalists

On September 17, 1787, the delegates to the Constitutional Convention in Philadelphia voted to approve the document they had drafted over the course of many months. Some did not support it, but the majority did. Before it could become the law of the land, however, the Constitution faced another hurdle. It had to be ratified by the states.

THE RATIFICATION PROCESS

Article VII, the final article of the Constitution, required that before the Constitution could become law and a new government could form, the document had to be ratified by nine of the thirteen states. Eleven days after the delegates at the Philadelphia convention approved it, copies of the Constitution were sent to each of the states, which were to hold ratifying conventions to either accept or reject it.

This approach to ratification was an unusual one. Since the authority inherent in the Articles of Confederation and the Confederation Congress had rested on the consent of the states, changes to the nation’s government should also have been ratified by the state legislatures. Instead, by calling upon state legislatures to hold ratification conventions to approve the Constitution, the framers avoided asking the legislators to approve a document that would require them to give up a degree of their own power. The men attending the ratification conventions would be delegates elected by their neighbors to represent their interests. They were not being asked to relinquish their power; in fact, they were being asked to place limits upon the power of their state legislators, whom they may not have elected in the first place. Finally, because the new nation was to be a republic in which power was held by the people through their elected representatives, it was considered appropriate to leave the ultimate acceptance or rejection of the Constitution to the nation’s citizens. If convention delegates, who were chosen by popular vote, approved it, then the new government could rightly claim that it ruled with the consent of the people.

The greatest sticking point when it came to ratification, as it had been at the Constitutional Convention itself, was the relative power of the state and federal governments. The framers of the Constitution believed that without the ability to maintain and command an army and navy, impose taxes, and force the states to comply with laws passed by Congress, the young nation would not survive for very long. But many people resisted increasing the powers of the national government at the expense of the states. Virginia’s Patrick Henry, for example, feared that the newly created office of president would place excessive power in the hands of one man. He also disapproved of the federal government’s new ability to tax its citizens. This right, Henry believed, should remain with the states.

Other delegates, such as Edmund Randolph of Virginia, disapproved of the Constitution because it created a new federal judicial system. Their fear was that the federal courts would be too far away from where those who were tried lived. State courts were located closer to the homes of both plaintiffs and defendants, and it was believed that judges and juries in state courts could better understand the actions of those who appeared before them. In response to these fears, the federal government created federal courts in each of the states as well as in Maine, which was then part of Massachusetts, and Kentucky, which was part of Virginia.

Pauline Maier. 2010. Ratification: The People Debate the Constitution , 1787-1788. New York: Simon & Schuster, 464.

Perhaps the greatest source of dissatisfaction with the Constitution was that it did not guarantee protection of individual liberties. State governments had given jury trials to residents charged with violating the law and allowed their residents to possess weapons for their protection. Some had practiced religious tolerance as well. The Constitution, however, did not contain reassurances that the federal government would do so. Although it provided for habeas corpus and prohibited both a religious test for holding office and granting noble titles, some citizens feared the loss of their traditional rights and the violation of their liberties. This led many of the Constitution’s opponents to call for a bill of rights and the refusal to ratify the document without one. The lack of a bill of rights was especially problematic in Virginia, as the Virginia Declaration of Rights was the most extensive rights-granting document among the states. The promise that a bill of rights would be drafted for the Constitution persuaded delegates in many states to support ratification.

Maier, Ratification , 431.

THOMAS JEFFERSON ON THE BILL OF RIGHTS

John Adams and Thomas Jefferson carried on a lively correspondence regarding the ratification of the Constitution. In the following excerpt (reproduced as written) from a letter dated March 15, 1789, after the Constitution had been ratified by nine states but before it had been approved by all thirteen, Jefferson reiterates his previously expressed concerns that a bill of rights to protect citizens’ freedoms was necessary and should be added to the Constitution:

“In the arguments in favor of a declaration of rights, . . . I am happy to find that on the whole you are a friend to this amendment. The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly overweighs the evil. . . . This instrument [the Constitution] forms us into one state as to certain objects, and gives us a legislative & executive body for these objects. It should therefore guard us against their abuses of power. . . . Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. . . . There is a remarkeable difference between the . . . Inconveniences which attend a Declaration of rights, & those which attend the want of it. . . . The inconveniences of the want of a Declaration are permanent, afflicting & irreparable: they are in constant progression from bad to worse.”

Letter from Thomas Jefferson to James Madison, March 15, 1789, https://www.gwu.edu/~ffcp/exhibit/p7/p7_1text.html .

What were some of the inconveniences of not having a bill of rights that Jefferson mentioned? Why did he decide in favor of having one?

It was clear how some states would vote. Smaller states, like Delaware, favored the Constitution. Equal representation in the Senate would give them a degree of equality with the larger states, and a strong national government with an army at its command would be better able to defend them than their state militias could. Larger states, however, had significant power to lose. They did not believe they needed the federal government to defend them and disliked the prospect of having to provide tax money to support the new government. Thus, from the very beginning, the supporters of the Constitution feared that New York, Massachusetts, Pennsylvania, and Virginia would refuse to ratify it. That would mean all nine of the remaining states would have to, and Rhode Island, the smallest state, was unlikely to do so. It had not even sent delegates to the convention in Philadelphia. And even if it joined the other states in ratifying the document and the requisite nine votes were cast, the new nation would not be secure without its largest, wealthiest, and most populous states as members of the union.

THE RATIFICATION CAMPAIGN

On the question of ratification, citizens quickly separated into two groups: Federalists and Anti-Federalists. The Federalists supported it. They tended to be among the elite members of society—wealthy and well-educated landowners, businessmen, and former military commanders who believed a strong government would be better for both national defense and economic growth. A national currency, which the federal government had the power to create, would ease business transactions. The ability of the federal government to regulate trade and place tariffs on imports would protect merchants from foreign competition. Furthermore, the power to collect taxes would allow the national government to fund internal improvements like roads, which would also help businessmen. Support for the Federalists was especially strong in New England.

Opponents of ratification were called Anti-Federalists. Anti-Federalists feared the power of the national government and believed state legislatures, with which they had more contact, could better protect their freedoms. Although some Anti-Federalists, like Patrick Henry, were wealthy, most distrusted the elite and believed a strong federal government would favor the rich over those of “the middling sort.” This was certainly the fear of Melancton Smith, a New York merchant and landowner, who believed that power should rest in the hands of small, landowning farmers of average wealth who “are more temperate, of better morals and less ambitious than the great.”

Isaac Krannick. 1999. “The Great National Discussion: The Discourse of Politics in 1787.” In What Did the Constitution Mean to Early Americans? ed. Edward Countryman. Boston: Bedford/St. Martins, 52.

Even members of the social elite, like Henry, feared that the centralization of power would lead to the creation of a political aristocracy, to the detriment of state sovereignty and individual liberty.

Related to these concerns were fears that the strong central government Federalists advocated for would levy taxes on farmers and planters, who lacked the hard currency needed to pay them. Many also believed Congress would impose tariffs on foreign imports that would make American agricultural products less welcome in Europe and in European colonies in the western hemisphere. For these reasons, Anti-Federalist sentiment was especially strong in the South.

Some Anti-Federalists also believed that the large federal republic that the Constitution would create could not work as intended. Americans had long believed that virtue was necessary in a nation where people governed themselves (i.e., the ability to put self-interest and petty concerns aside for the good of the larger community). In small republics, similarities among members of the community would naturally lead them to the same positions and make it easier for those in power to understand the needs of their neighbors. In a larger republic, one that encompassed nearly the entire Eastern Seaboard and ran west to the Appalachian Mountains, people would lack such a strong commonality of interests.

Krannick, Great National Discussion , 42-43.

Likewise, Anti-Federalists argued, the diversity of religion tolerated by the Constitution would prevent the formation of a political community with shared values and interests. The Constitution contained no provisions for government support of churches or of religious education, and Article VI explicitly forbade the use of religious tests to determine eligibility for public office. This caused many, like Henry Abbot of North Carolina, to fear that government would be placed in the hands of “pagans . . . and Mahometans [Muslims].”

Krannick, Great National Discussion , 42.

It is difficult to determine how many people were Federalists and how many were Anti-Federalists in 1787. The Federalists won the day, but they may not have been in the majority. First, the Federalist position tended to win support among businessmen, large farmers, and, in the South, plantation owners. These people tended to live along the Eastern Seaboard. In 1787, most of the states were divided into voting districts in a manner that gave more votes to the eastern part of the state than to the western part.

Evelyn C. Fink and William H. Riker. 1989. “The Strategy of Ratification.” In The Federalist Papers and the New Institutionalism , eds. Bernard Grofman and Donald Wittman. New York: Agathon, 229.

Thus, in some states, like Virginia and South Carolina, small farmers who may have favored the Anti-Federalist position were unable to elect as many delegates to state ratification conventions as those who lived in the east. Small settlements may also have lacked the funds to send delegates to the convention.

Fink and Riker, Strategy of Ratification , 221.

In all the states, educated men authored pamphlets and published essays and cartoons arguing either for or against ratification (Figure). Although many writers supported each position, it is the Federalist essays that are now best known. The arguments these authors put forth, along with explicit guarantees that amendments would be added to protect individual liberties, helped to sway delegates to ratification conventions in many states.

This Massachusetts Sentinel cartoon (a) encourages the state’s voters to join Georgia and neighboring Connecticut in ratifying the Constitution. Less than a month later, on February 6, 1788, Massachusetts became the sixth member of the newly formed federal union (b).

For obvious reasons, smaller, less populous states favored the Constitution and the protection of a strong federal government. As shown in Figure, Delaware and New Jersey ratified the document within a few months after it was sent to them for approval in 1787. Connecticut ratified it early in 1788. Some of the larger states, such as Pennsylvania and Massachusetts, also voted in favor of the new government. New Hampshire became the ninth state to ratify the Constitution in the summer of 1788.

This timeline shows the order in which states ratified the new Constitution. Small states that would benefit from the protection of a larger union ratified the Constitution fairly quickly, such as Delaware and Connecticut. Larger, more populous states like Virginia and New York took longer. The last state to ratify was Rhode Island, a state that had always proven reluctant to act alongside the others.

Although the Constitution went into effect following ratification by New Hampshire, four states still remained outside the newly formed union. Two were the wealthy, populous states of Virginia and New York. In Virginia, James Madison’s active support and the intercession of George Washington, who wrote letters to the convention, changed the minds of many. Some who had initially opposed the Constitution, such as Edmund Randolph, were persuaded that the creation of a strong union was necessary for the country’s survival and changed their position. Other Virginia delegates were swayed by the promise that a bill of rights similar to the Virginia Declaration of Rights would be added after the Constitution was ratified. On June 25, 1788, Virginia became the tenth state to grant its approval.

The approval of New York was the last major hurdle. Facing considerable opposition to the Constitution in that state, Alexander Hamilton, James Madison, and John Jay wrote a series of essays, beginning in 1787, arguing for a strong federal government and support of the Constitution (Figure). Later compiled as The Federalist and now known as The Federalist Papers , these eighty-five essays were originally published in newspapers in New York and other states under the name of Publius, a supporter of the Roman Republic.

From 1787 to 1788, Alexander Hamilton, James Madison, and John Jay authored a series of essays intended to convince Americans, especially New Yorkers, to support the new Constitution. These essays, which originally appeared in newspapers, were collected and published together under the title The Federalist in 1788. They are now known as The Federalist Papers .

The essays addressed a variety of issues that troubled citizens. For example, in Federalist No. 51, attributed to James Madison (Figure), the author assured readers they did not need to fear that the national government would grow too powerful. The federal system, in which power was divided between the national and state governments, and the division of authority within the federal government into separate branches would prevent any one part of the government from becoming too strong. Furthermore, tyranny could not arise in a government in which “the legislature necessarily predominates.” Finally, the desire of office holders in each branch of government to exercise the powers given to them, described as “personal motives,” would encourage them to limit any attempt by the other branches to overstep their authority. According to Madison, “Ambition must be made to counteract ambition.”

Other essays countered different criticisms made of the Constitution and echoed the argument in favor of a strong national government. In Federalist No. 35, for example, Hamilton (Figure) argued that people’s interests could in fact be represented by men who were not their neighbors. Indeed, Hamilton asked rhetorically, would American citizens best be served by a representative “whose observation does not travel beyond the circle of his neighbors and his acquaintances” or by someone with more extensive knowledge of the world? To those who argued that a merchant and land-owning elite would come to dominate Congress, Hamilton countered that the majority of men currently sitting in New York’s state senate and assembly were landowners of moderate wealth and that artisans usually chose merchants, “their natural patron[s] and friend[s],” to represent them. An aristocracy would not arise, and if it did, its members would have been chosen by lesser men. Similarly, Jayreminded New Yorkers in Federalist No. 2 that union had been the goal of Americans since the time of the Revolution. A desire for union was natural among people of such “similar sentiments” who “were united to each other by the strongest ties,” and the government proposed by the Constitution was the best means of achieving that union.

James Madison (a) played a vital role in the formation of the Constitution. He was an important participant in the Constitutional Convention and authored many of The Federalist Papers . Despite the fact that he did not believe that a Bill of Rights was necessary, he wrote one in order to allay the fears of those who believed the federal government was too powerful. He also served as Thomas Jefferson’s vice president and was elected president himself in 1808. Alexander Hamilton (b) was one of the greatest political minds of the early United States. He authored the majority of The Federalist Papers and served as Secretary of the Treasury in George Washington’s administration.

Objections that an elite group of wealthy and educated bankers, businessmen, and large landowners would come to dominate the nation’s politics were also addressed by Madison in Federalist No. 10. Americans need not fear the power of factions or special interests, he argued, for the republic was too big and the interests of its people too diverse to allow the development of large, powerful political parties. Likewise, elected representatives, who were expected to “possess the most attractive merit,” would protect the government from being controlled by “an unjust and interested [biased in favor of their own interests] majority.”

For those who worried that the president might indeed grow too ambitious or king-like, Hamilton, in Federalist No. 68, provided assurance that placing the leadership of the country in the hands of one person was not dangerous. Electors from each state would select the president. Because these men would be members of a “transient” body called together only for the purpose of choosing the president and would meet in separate deliberations in each state, they would be free of corruption and beyond the influence of the “heats and ferments” of the voters. Indeed, Hamilton argued in Federalist No. 70, instead of being afraid that the president would become a tyrant, Americans should realize that it was easier to control one person than it was to control many. Furthermore, one person could also act with an “energy” that Congress did not possess. Making decisions alone, the president could decide what actions should be taken faster than could Congress, whose deliberations, because of its size, were necessarily slow. At times, the “decision, activity, secrecy, and dispatch” of the chief executive might be necessary.

The Library of Congress has The Federalist Papers on their website. The Anti-Federalists also produced a body of writings, less extensive than The Federalists Papers , which argued against the ratification of the Constitution. However, these were not written by one small group of men as The Federalist Papers had been. A collection of the writings that are unofficially called The Anti-Federalist Papers is also available online.

The arguments of the Federalists were persuasive, but whether they actually succeeded in changing the minds of New Yorkers is unclear. Once Virginia ratified the Constitution on June 25, 1788, New York realized that it had little choice but to do so as well. If it did not ratify the Constitution, it would be the last large state that had not joined the union. Thus, on July 26, 1788, the majority of delegates to New York’s ratification convention voted to accept the Constitution. A year later, North Carolina became the twelfth state to approve. Alone and realizing it could not hope to survive on its own, Rhode Island became the last state to ratify, nearly two years after New York had done so.

TERM LIMITS

One of the objections raised to the Constitution’s new government was that it did not set term limits for members of Congress or the president. Those who opposed a strong central government argued that this failure could allow a handful of powerful men to gain control of the nation and rule it for as long as they wished. Although the framers did not anticipate the idea of career politicians, those who supported the Constitution argued that reelecting the president and reappointing senators by state legislatures would create a body of experienced men who could better guide the country through crises. A president who did not prove to be a good leader would be voted out of office instead of being reelected. In fact, presidents long followed George Washington’s example and limited themselves to two terms. Only in 1951, after Franklin Roosevelt had been elected four times, was the Twenty-Second Amendment passed to restrict the presidency to two terms.

Are term limits a good idea? Should they have originally been included in the Constitution? Why or why not? Are there times when term limits might not be good?

Anti-Federalists objected to the power the Constitution gave the federal government and the absence of a bill of rights to protect individual liberties. The Federalists countered that a strong government was necessary to lead the new nation and promised to add a bill of rights to the Constitution. The Federalist Papers , in particular, argued in favor of ratification and sought to convince people that the new government would not become tyrannical. Finally, in June 1788, New Hampshire became the ninth state to approve the Constitution, making it the law of the land. The large and prosperous states of Virginia and New York followed shortly thereafter, and the remaining states joined as well.

Why were The Federalist Papers written?

• To encourage states to oppose the Constitution.
• To encourage New York to ratify the Constitution.
• To oppose the admission of slaveholding states to the federal union.
• To encourage people to vote for George Washington as the nation’s first president.

What argument did Alexander Hamilton use to convince people that it was not dangerous to place power in the hands of one man?

• That man would have to pass a religious test before he could become president; thus, citizens could be sure that he was of good character.
• One man could respond to crises more quickly than a group of men like Congress.
• It was easier to control the actions of one man than the actions of a group.
• both B and C

Why did so many people oppose ratification of the Constitution, and how was their opposition partly overcome?

7.4 The Constitutional Convention and Federal Constitution

Learning objectives.

By the end of this section, you will be able to:

• Identify the central issues of the 1787 Constitutional Convention and their solutions
• Describe the conflicts over the ratification of the federal constitution

The economic problems that plagued the thirteen states of the Confederation set the stage for the creation of a strong central government under a federal constitution. Although the original purpose of the convention was to amend the Articles of Confederation, some—though not all—delegates moved quickly to create a new framework for a more powerful national government. This proved extremely controversial. Those who attended the convention split over the issue of robust, centralized government and questions of how Americans would be represented in the federal government. Those who opposed the proposal for a stronger federal government argued that such a plan betrayed the Revolution by limiting the voice of the American people.

THE CONSTITUTIONAL CONVENTION

There had been earlier efforts to address the Confederation’s perilous state. In early 1786, Virginia’s James Madison advocated a meeting of states to address the widespread economic problems that plagued the new nation. Heeding Madison’s call, the legislature in Virginia invited all thirteen states to meet in Annapolis, Maryland, to work on solutions to the issue of commerce between the states. Eight states responded to the invitation. But the resulting 1786 Annapolis Convention failed to provide any solutions because only five states sent delegates. These delegates did, however, agree to a plan put forward by Alexander Hamilton for a second convention to meet in May 1787 in Philadelphia. Shays’ Rebellion gave greater urgency to the planned convention. In February 1787, in the wake of the uprising in western Massachusetts, the Confederation Congress authorized the Philadelphia convention. This time, all the states except Rhode Island sent delegates to Philadelphia to confront the problems of the day.

The stated purpose of the Philadelphia Convention in 1787 was to amend the Articles of Confederation. Very quickly, however, the attendees decided to create a new framework for a national government. That framework became the United States Constitution, and the Philadelphia convention became known as the Constitutional Convention of 1787. Fifty-five men met in Philadelphia in secret; historians know of the proceedings only because James Madison kept careful notes of what transpired. The delegates knew that what they were doing would be controversial; Rhode Island refused to send delegates, and New Hampshire’s delegates arrived late. Two delegates from New York, Robert Yates and John Lansing, left the convention when it became clear that the Articles were being put aside and a new plan of national government was being drafted. They did not believe the delegates had the authority to create a strong national government.

Click and Explore

Read “Reasons for Dissent from the Proposed Constitution” in order to understand why Robert Yates and John Lansing, New York’s delegates to the 1787 Philadelphia Convention, didn’t believe the convention should draft a new plan of national government.

THE QUESTION OF REPRESENTATION

One issue that the delegates in Philadelphia addressed was the way in which representatives to the new national government would be chosen. Would individual citizens be able to elect representatives? Would representatives be chosen by state legislatures? How much representation was appropriate for each state?

James Madison put forward a proposition known as the Virginia Plan , which called for a strong national government that could overturn state laws ( Figure 7.15 ). The plan featured a bicameral or two-house legislature, with an upper and a lower house. The people of the states would elect the members of the lower house, whose numbers would be determined by the population of the state. State legislatures would send delegates to the upper house. The number of representatives in the upper chamber would also be based on the state’s population. This proportional representation gave the more populous states, like Virginia, more political power. The Virginia Plan also called for an executive branch and a judicial branch, both of which were absent under the Articles of Confederation. The lower and upper house together were to appoint members to the executive and judicial branches. Under this plan, Virginia, the most populous state, would dominate national political power and ensure its interests, including slavery, would be safe.

The Virginia Plan’s call for proportional representation alarmed the representatives of the smaller states. William Paterson introduced a New Jersey Plan to counter Madison’s scheme, proposing that all states have equal votes in a unicameral national legislature. He also addressed the economic problems of the day by calling for the Congress to have the power to regulate commerce, to raise revenue though taxes on imports and through postage, and to enforce Congressional requisitions from the states.

Roger Sherman from Connecticut offered a compromise to break the deadlock over the thorny question of representation. His Connecticut Compromise , also known as the Great Compromise, outlined a different bicameral legislature in which the upper house, the Senate, would have equal representation for all states; each state would be represented by two senators chosen by the state legislatures. Only the lower house, the House of Representatives, would have proportional representation.

THE QUESTION OF SLAVERY

The question of slavery stood as a major issue at the Constitutional Convention because slaveholders wanted enslaved residents to be counted along with White people, termed “free inhabitants,” when determining a state’s total population. This, in turn, would augment the number of representatives accorded to those states in the lower house. Some northerners, however, such as New York’s Gouverneur Morris, hated slavery and did not even want the term included in the new national plan of government. Slaveholders argued that slavery imposed great burdens upon them and that, because they carried this liability, they deserved special consideration; enslaved people needed to be counted for purposes of representation.

The issue of counting or not counting enslaved people for purposes of representation connected directly to the question of taxation. Beginning in 1775, the Second Continental Congress asked states to pay for war by collecting taxes and sending the tax money to the Congress. The amount each state had to deliver in tax revenue was determined by a state’s total population, including both free and enslaved individuals. States routinely fell far short of delivering the money requested by Congress under the plan. In April 1783, the Confederation Congress amended the earlier system of requisition by having the enslaved population count as three-fifths of the White population. In this way, slaveholders gained a significant tax break. The delegates in Philadelphia adopted this same three-fifths formula in the summer of 1787.

Under the three-fifths compromise in the 1787 Constitution, three out of every five enslaved people would be counted when determining a state's population. Article 1, Section 2 stipulated that “Representatives and direct Taxes shall be apportioned among the several states . . . according to their respective Number, which shall be determined by adding to the whole number of free Persons, including those bound for service for a Term of Years [White servants], and excluding Indians not taxed, three fifths of all other persons.” Since representation in the House of Representatives was based on the population of a state, the three-fifths compromise gave extra political power to slave states, although not as much as if the total population, both free and enslaved, had been used. Significantly, no direct federal income tax was immediately imposed. (The Sixteenth Amendment, ratified in 1913, put in place a federal income tax.) Northerners agreed to the three-fifths compromise because the Northwest Ordinance of 1787, passed by the Confederation Congress, banned slavery in the future states of the northwest. Northern delegates felt this ban balanced political power between states with enslaved people and those without. The three-fifths compromise gave an advantage to slaveholders; they added three-fifths of their human property to their state’s population, allowing them to send representatives based in part on the number of people they enslaved.

THE QUESTION OF DEMOCRACY

Many of the delegates to the Constitutional Convention had serious reservations about democracy, which they believed promoted anarchy. To allay these fears, the Constitution blunted democratic tendencies that appeared to undermine the republic. Thus, to avoid giving the people too much direct power, the delegates made certain that senators were chosen by the state legislatures, not elected directly by the people (direct elections of senators came with the Seventeenth Amendment to the Constitution, ratified in 1913). As an additional safeguard, the delegates created the Electoral College , the mechanism for choosing the president. Under this plan, each state has a certain number of electors, which is its number of senators (two) plus its number of representatives in the House of Representatives. Critics, then as now, argue that this process prevents the direct election of the president.

THE FIGHT OVER RATIFICATION

The draft constitution was finished in September 1787. The delegates decided that in order for the new national government to be implemented, each state must first hold a special ratifying convention. When nine of the thirteen had approved the plan, the constitution would go into effect.

When the American public learned of the new constitution, opinions were deeply divided, but most people were opposed. To salvage their work in Philadelphia, the architects of the new national government began a campaign to sway public opinion in favor of their blueprint for a strong central government. In the fierce debate that erupted, the two sides articulated contrasting visions of the American republic and of democracy. Supporters of the 1787 Constitution, known as Federalists , made the case that a centralized republic provided the best solution for the future. Those who opposed it, known as Anti-Federalists , argued that the Constitution would consolidate all power in a national government, robbing the states of the power to make their own decisions. To them, the Constitution appeared to mimic the old corrupt and centralized British regime, under which a far-off government made the laws. Anti-Federalists argued that wealthy aristocrats would run the new national government, and that the elite would not represent ordinary citizens; the rich would monopolize power and use the new government to formulate policies that benefited their class—a development that would also undermine local state elites. They also argued that the Constitution did not contain a bill of rights.

New York’s ratifying convention illustrates the divide between the Federalists and Anti-Federalists. When one Anti-Federalist delegate named Melancton Smith took issue with the scheme of representation as being too limited and not reflective of the people, Alexander Hamilton responded:

It has been observed by an honorable gentleman [Smith], that a pure democracy, if it were practicable, would be the most perfect government. Experience has proven, that no position in politics is more false than this. The ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure deformity: When they assembled, the field of debate presented an ungovernable mob, not only incapable of deliberation, but prepared for every enormity. In these assemblies, the enemies of the people brought forward their plans of ambition systematically. They were opposed by their enemies of another party; and it became a matter of contingency, whether the people subjected themselves to be led blindly by one tyrant or by another.

The Federalists, particularly John Jay, Alexander Hamilton, and James Madison, put their case to the public in a famous series of essays known as The Federalist Papers . These were first published in New York and subsequently republished elsewhere in the United States.

Defining American

James madison on the benefits of republicanism.

The tenth essay in The Federalist Papers , often called Federalist No. 10, is one of the most famous. Written by James Madison ( Figure 7.16 ), it addresses the problems of political parties (“factions”). Madison argued that there were two approaches to solving the problem of political parties: a republican government and a democracy. He argued that a large republic provided the best defense against what he viewed as the tumult of direct democracy. Compromises would be reached in a large republic and citizens would be represented by representatives of their own choosing.

From this view of the subject, it may be concluded, that a pure Democracy, by which I mean a Society consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. A Republic, by which I mean a Government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure Democracy, and we shall comprehend both the nature of the cure, and the efficacy which it must derive from the Union. The two great points of difference, between a Democracy and a Republic, are, first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest: Secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

Does Madison recommend republicanism or democracy as the best form of government? What arguments does he use to prove his point?

Read the full text of Federalist No. 10 at Yale Law School’s Avalon Project. What do you think are Madison’s most and least compelling arguments? How would different members of the new United States view his arguments?

Including all the state ratifying conventions around the country, a total of fewer than two thousand men voted on whether to adopt the new plan of government. In the end, the Constitution only narrowly won approval ( Figure 7.17 ). In New York, the vote was thirty in favor to twenty-seven opposed. In Massachusetts, the vote to approve was 187 to 168, and some claim supporters of the Constitution resorted to bribes in order to ensure approval. Virginia ratified by a vote of eighty-nine to seventy-nine, and Rhode Island by thirty-four to thirty-two. The opposition to the Constitution reflected the fears that a new national government, much like the British monarchy, created too much centralized power and, as a result, deprived citizens in the various states of the ability to make their own decisions.

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• Authors: P. Scott Corbett, Volker Janssen, John M. Lund, Todd Pfannestiel, Sylvie Waskiewicz, Paul Vickery
• Publisher/website: OpenStax
• Book title: U.S. History
• Publication date: Dec 30, 2014
• Location: Houston, Texas
• Book URL: https://openstax.org/books/us-history/pages/1-introduction
• Section URL: https://openstax.org/books/us-history/pages/7-4-the-constitutional-convention-and-federal-constitution

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