The Federalist Papers are a series of 85 essays arguing in support of the United States Constitution . Alexander Hamilton , James Madison , and John Jay were the authors behind the pieces, and the three men wrote collectively under the name of Publius .
Seventy-seven of the essays were published as a series in The Independent Journal , The New York Packet , and The Daily Advertiser between October of 1787 and August 1788. They weren't originally known as the "Federalist Papers," but just "The Federalist." The final 8 were added in after.
At the time of publication, the authorship of the articles was a closely guarded secret. It wasn't until Hamilton's death in 1804 that a list crediting him as one of the authors became public. It claimed fully two-thirds of the essays for Hamilton. Many of these would be disputed by Madison later on, who had actually written a few of the articles attributed to Hamilton.
Once the Federal Convention sent the Constitution to the Confederation Congress in 1787, the document became the target of criticism from its opponents. Hamilton, a firm believer in the Constitution, wrote in Federalist No. 1 that the series would "endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention."
Alexander Hamilton was the force behind the project, and was responsible for recruiting James Madison and John Jay to write with him as Publius. Two others were considered, Gouverneur Morris and William Duer . Morris rejected the offer, and Hamilton didn't like Duer's work. Even still, Duer managed to publish three articles in defense of the Constitution under the name Philo-Publius , or "Friend of Publius."
Hamilton chose "Publius" as the pseudonym under which the series would be written, in honor of the great Roman Publius Valerius Publicola . The original Publius is credited with being instrumental in the founding of the Roman Republic. Hamilton thought he would be again with the founding of the American Republic. He turned out to be right.
John Jay was the author of five of the Federalist Papers. He would later serve as Chief Justice of the United States. Jay became ill after only contributed 4 essays, and was only able to write one more before the end of the project, which explains the large gap in time between them.
Jay's Contributions were Federalist: No. 2 , No. 3 , No. 4 , No. 5 , and No. 64 .
James Madison , Hamilton's major collaborator, later President of the United States and "Father of the Constitution." He wrote 29 of the Federalist Papers, although Madison himself, and many others since then, asserted that he had written more. A known error in Hamilton's list is that he incorrectly ascribed No. 54 to John Jay, when in fact Jay wrote No. 64 , has provided some evidence for Madison's suggestion. Nearly all of the statistical studies show that the disputed papers were written by Madison, but as the writers themselves released no complete list, no one will ever know for sure.
Opposition to the Bill of Rights
The Federalist Papers, specifically Federalist No. 84 , are notable for their opposition to what later became the United States Bill of Rights . Hamilton didn't support the addition of a Bill of Rights because he believed that the Constitution wasn't written to limit the people. It listed the powers of the government and left all that remained to the states and the people. Of course, this sentiment wasn't universal, and the United States not only got a Constitution, but a Bill of Rights too.
No. 1: General Introduction Written by: Alexander Hamilton October 27, 1787
No.2: Concerning Dangers from Foreign Force and Influence Written by: John Jay October 31, 1787
No. 3: The Same Subject Continued: Concerning Dangers from Foreign Force and Influence Written by: John Jay November 3, 1787
No. 4: The Same Subject Continued: Concerning Dangers from Foreign Force and Influence Written by: John Jay November 7, 1787
No. 5: The Same Subject Continued: Concerning Dangers from Foreign Force and Influence Written by: John Jay November 10, 1787
No. 6:Concerning Dangers from Dissensions Between the States Written by: Alexander Hamilton November 14, 1787
No. 7 The Same Subject Continued: Concerning Dangers from Dissensions Between the States Written by: Alexander Hamilton November 15, 1787
No. 8: The Consequences of Hostilities Between the States Written by: Alexander Hamilton November 20, 1787
No. 9 The Union as a Safeguard Against Domestic Faction and Insurrection Written by: Alexander Hamilton November 21, 1787
No. 10 The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection Written by: James Madison November 22, 1787
No. 11 The Utility of the Union in Respect to Commercial Relations and a Navy Written by: Alexander Hamilton November 24, 1787
No 12: The Utility of the Union In Respect to Revenue Written by: Alexander Hamilton November 27, 1787
No. 13: Advantage of the Union in Respect to Economy in Government Written by: Alexander Hamilton November 28, 1787
No. 14: Objections to the Proposed Constitution From Extent of Territory Answered Written by: James Madison November 30, 1787
No 15: The Insufficiency of the Present Confederation to Preserve the Union Written by: Alexander Hamilton December 1, 1787
No. 16: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: Alexander Hamilton December 4, 1787
No. 17: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: Alexander Hamilton December 5, 1787
No. 18: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: James Madison December 7, 1787
No. 19: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: James Madison December 8, 1787
No. 20: The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union Written by: James Madison December 11, 1787
No. 21: Other Defects of the Present Confederation Written by: Alexander Hamilton December 12, 1787
No. 22: The Same Subject Continued: Other Defects of the Present Confederation Written by: Alexander Hamilton December 14, 1787
No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union Written by: Alexander Hamilton December 18, 1787
No. 24: The Powers Necessary to the Common Defense Further Considered Written by: Alexander Hamilton December 19, 1787
No. 25: The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered Written by: Alexander Hamilton December 21, 1787
No. 26: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered Written by: Alexander Hamilton December 22, 1787
No. 27: The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered Written by: Alexander Hamilton December 25, 1787
No. 28: The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered Written by: Alexander Hamilton December 26, 1787
No. 29: Concerning the Militia Written by: Alexander Hamilton January 9, 1788
No. 30: Concerning the General Power of Taxation Written by: Alexander Hamilton December 28, 1787
No. 31: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 1, 1788
No. 32: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 2, 1788
No. 33: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 2, 1788
No. 34: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 5, 1788
No. 35: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 5, 1788
No. 36: The Same Subject Continued: Concerning the General Power of Taxation Written by: Alexander Hamilton January 8, 1788
No. 37: Concerning the Difficulties of the Convention in Devising a Proper Form of Government Written by: Alexander Hamilton January 11, 1788
No. 38: The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed Written by: James Madison January 12, 1788
No. 39: The Conformity of the Plan to Republican Principles Written by: James Madison January 18, 1788
No. 40: The Powers of the Convention to Form a Mixed Government Examined and Sustained Written by: James Madison January 18, 1788
No. 41: General View of the Powers Conferred by the Constitution Written by: James Madison January 19, 1788
No. 42: The Powers Conferred by the Constitution Further Considered Written by: James Madison January 22, 1788
No. 43: The Same Subject Continued: The Powers Conferred by the Constitution Further Considered Written by: James Madison January 23, 1788
No. 44: Restrictions on the Authority of the Several States Written by: James Madison January 25, 1788
No. 45: The Alleged Danger From the Powers of the Union to the State Governments Considered Written by: James Madison January 26, 1788
No. 46: The Influence of the State and Federal Governments Compared Written by: James Madison January 29, 1788
No. 47: The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts Written by: James Madison January 30, 1788
No. 48: These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other Written by: James Madison February 1, 1788
No. 49: Method of Guarding Against the Encroachments of Any One Department of Government Written by: James Madison February 2, 1788
No. 50: Periodic Appeals to the People Considered Written by: James Madison February 5, 1788
No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments Written by: James Madison February 6, 1788
No. 52: The House of Representatives Written by: James Madison February 8, 1788
No. 53: The Same Subject Continued: The House of Representatives Written by: James Madison February 9, 1788
No. 54: The Apportionment of Members Among the States Written by: James Madison February 12, 1788
No. 55: The Total Number of the House of Representatives Written by: James Madison February 13, 1788
No. 56: The Same Subject Continued: The Total Number of the House of Representatives Written by: James Madison February 16, 1788
No. 57: The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Written by: James Madison February 19, 1788
No. 58: Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered Written by: James Madison February 20, 1788
No. 59: Concerning the Power of Congress to Regulate the Election of Members Written by: Alexander Hamilton February 22, 1788
No. 60: The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members Written by: Alexander Hamilton February 23, 1788
No. 61: The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members Written by: Alexander Hamilton February 26, 1788
No. 62: The Senate Written by: James Madison February 27, 1788
No. 63: The Senate Continued Written by: James Madison March 1, 1788
No. 64: The Powers of the Senate Written by: John Jay March 5, 1788
No. 65: The Powers of the Senate Continued Written by: Alexander Hamilton March 7, 1788
No. 66: Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered Written by: Alexander Hamilton March 8, 1788
No. 67: The Executive Department Written by: Alexander Hamilton March 11, 1788
No. 68: The Mode of Electing the President Written by: Alexander Hamilton March 12, 1788
No. 69: The Real Character of the Executive Written by: Alexander Hamilton March 14, 1788
No. 70: The Executive Department Further Considered Written by: Alexander Hamilton March 15, 1788
No. 71: The Duration in Office of the Executive Written by: Alexander Hamilton March 18, 1788
No. 72: The Same Subject Continued, and Re-Eligibility of the Executive Considered Written by: Alexander Hamilton March 19, 1788
No. 73: The Provision For The Support of the Executive, and the Veto Power Written by: Alexander Hamilton March 21, 1788
No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive Written by: Alexander Hamilton March 25, 1788
No. 75: The Treaty Making Power of the Executive Written by: Alexander Hamilton March 26, 1788
No. 76: The Appointing Power of the Executive Written by: Alexander Hamilton April 1, 1788
No. 77: The Appointing Power Continued and Other Powers of the Executive Considered Written by: Alexander Hamilton April 2, 1788
No. 78: The Judiciary Department Written by: Alexander Hamilton June 14, 1788
No. 79: The Judiciary Continued Written by: Alexander Hamilton June 18, 1788
No. 80: The Powers of the Judiciary Written by: Alexander Hamilton June 21, 1788
No. 81: The Judiciary Continued, and the Distribution of the Judicial Authority Written by: Alexander Hamilton June 25, 1788
No. 82: The Judiciary Continued Written by: Alexander Hamilton July 2, 1788
No. 83: The Judiciary Continued in Relation to Trial by Jury Written by: Alexander Hamilton July 5, 1788
No. 84: Certain General and Miscellaneous Objections to the Constitution Considered and Answered Written by: Alexander Hamilton July 16, 1788
No. 85: Concluding Remarks Written by: Alexander Hamilton August 13, 1788
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Federalist papers - Student Encyclopedia (Ages 11 and up)
Federalist papers , series of 85 essays on the proposed new Constitution of the United States and on the nature of republican government , published between 1787 and 1788 by Alexander Hamilton , James Madison , and John Jay in an effort to persuade New York state voters to support ratification. Seventy-seven of the essays first appeared serially in New York newspapers, were reprinted in most other states, and were published in book form as The Federalist on May 28, 1788; the remaining eight essays appeared in New York newspapers between June 14 and August 16, 1788.
All the papers appeared over the signature “Publius,” and the authorship of some of the papers was once a matter of scholarly dispute . However, computer analysis and historical evidence has led nearly all historians to assign authorship in the following manner: Hamilton wrote numbers 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85; Madison , numbers 10, 14, 18–20, 37–58, and 62–63; and Jay, numbers 2–5 and 64.
The authors of the Federalist papers presented a masterly defense of the new federal system and of the major departments in the proposed central government. They also argued that the existing government under the Articles of Confederation , the country’s first constitution, was defective and that the proposed Constitution would remedy its weaknesses without endangering the liberties of the people.
As a general treatise on republican government, the Federalist papers are distinguished for their comprehensive analysis of the means by which the ideals of justice , the general welfare , and the rights of individuals could be realized. The authors assumed that people’s primary political motive is self-interest and that people—whether acting individually or collectively—are selfish and only imperfectly rational. The establishment of a republican form of government would not of itself provide protection against such characteristics: the representatives of the people might betray their trust; one segment of the population might oppress another; and both the representatives and the public might give way to passion or caprice . The possibility of good government, they argued, lay in the crafting of political institutions that would compensate for deficiencies in both reason and virtue in the ordinary conduct of politics. This theme was predominant in late 18th-century political thought in America and accounts in part for the elaborate system of checks and balances that was devised in the Constitution.
The authors of the Federalist papers argued against the decentralization of political authority under the Articles of Confederation. They worried, for example, that national commercial interests suffered from intransigent economic conflicts between states and that federal weakness undermined American diplomatic efforts abroad. Broadly, they argued that the government’s impotence under the Articles of Confederation obstructed America’s emergence as a powerful commercial empire.
The authors were also critical of the power assumed by state legislatures under the Articles of Confederation—and of the characters of the people serving in those assemblies. In the authors’ view, the farmers and artisans who rose to power in postrevolutionary America were too beholden to narrow economic and regional interests to serve the broader public good. Of particular concern to the authors was the passage by state legislatures of pro-debtor legislation and paper money laws that threatened creditors’ property rights . Unlike most Americans of the period, who typically worried about the conspiracies of the elite few against the liberties of the people, the authors were concerned about tyrannical legislative majorities threatening the rights of propertied minorities. The Articles of Confederation, in their view, had provided no safeguards against the vices of the people themselves, and the American Revolution’s enthusiasm for liberty had diminished popular appreciation of the need for good governance. The Federalist papers presented the 1786–87 insurrection of debtor farmers in western Massachusetts— Shays’s Rebellion —as a symptom of this broader crisis.
The authors of the Federalist papers argued for an increase in the “energy” of the federal government to respond to this crisis. However, the national government’s increased power would have to be based in republican principles and retain a federal distribution of power; there would be no return to monarchical rule or consolidation of central authority.
In one of the most notable essays, “Federalist 10,” Madison rejected the then common belief that republican government was possible only for small states. He argued that stability, liberty, and justice were more likely to be achieved in a large area with a numerous and heterogeneous population. Although frequently interpreted as an attack on majority rule, the essay is in reality a defense of both social, economic, and cultural pluralism and of a composite majority formed by compromise and conciliation. Decision by such a majority, rather than by a monistic one, would be more likely to accord with the proper ends of government. This distinction between a proper and an improper majority typifies the fundamental philosophy of the Federalist papers; republican institutions, including the principle of majority rule, were not considered good in themselves but were good because they constituted the best means for the pursuit of justice and the preservation of liberty.
U.S. Constitution.net
Federalist papers and the constitution.
During the late 1780s, the United States faced significant challenges with its initial governing framework, the Articles of Confederation. These issues prompted the creation of the Federalist Papers, a series of essays aimed at advocating for a stronger central government under the newly proposed Constitution. This article will examine the purpose, key arguments, and lasting impact of these influential writings.
Background and Purpose of the Federalist Papers
The Articles of Confederation, though a pioneer effort, left Congress without the power to tax or regulate interstate commerce, making it difficult to pay off Revolutionary War debts and curb internal squabbles among states.
In May 1787, America's brightest political minds convened in Philadelphia and created the Constitution—a document establishing a robust central government with legislative, executive, and judicial branches. However, before it could take effect, the Constitution needed ratification from nine of the thirteen states, facing opposition from critics known as Anti-Federalists.
The Federalist Papers, a series of 85 essays written by Alexander Hamilton , James Madison , and John Jay under the pseudonym "Publius," aimed to calm fears and win support for the Constitution. Hamilton initiated the project, recruiting Madison and Jay to contribute. Madison drafted substantial portions of the Constitution and provided detailed defenses, while Jay, despite health issues, also contributed essays.
The Federalist Papers systematically dismantled the opposition's arguments and explained the Constitution's provisions in detail. They gained national attention, were reprinted in newspapers across the country, and eventually collated into two volumes for broader distribution.
Hamilton emphasized the necessity of a central authority with the power to tax and enforce laws, citing specific failures under the Articles like the inability to generate revenue or maintain public order. Jay addressed the need for unity and the inadequacies of confederation in foreign diplomacy.
The Federalist Papers provided the framework needed to understand and eventually ratify the Constitution, remaining essential reading for anyone interested in the foundations of the American political system.
Key Arguments in the Federalist Papers
Among the key arguments presented in the Federalist Papers, three themes stand out:
The need for a stronger central government
The importance of checks and balances
The dangers of factionalism
Federalist No. 23 , written by Alexander Hamilton, argued for a robust central government, citing the weaknesses of the Articles of Confederation. Hamilton contended that empowering the central government with the means to enforce laws and collect taxes was essential for the Union's survival and prosperity.
In Federalist No. 51 , James Madison addressed the principle of checks and balances, arguing that the structure of the new government would prevent any single branch from usurping unrestrained power. Each branch—executive, legislative, and judicial—would have the means and motivation to check the power of the others, safeguarding liberty.
Federalist No. 10 , also by Madison, delved into the dangers posed by factions—groups united by a common interest adverse to the rights of others or the interests of the community. Madison acknowledged that factions are inherent within any free society and cannot be eliminated without destroying liberty. He argued that a well-constructed Union would break and control the violence of faction by filtering their influence through a large republic.
Hamilton's Federalist No. 78 brought the concept of judicial review to the forefront, establishing the judiciary as a guardian of the Constitution and essential for interpreting laws and checking the actions of the legislature and executive branches. 1
The Federalist Papers meticulously dismantled Anti-Federalist criticisms and showcased how the proposed system would create a stable and balanced government capable of both governing effectively and protecting individual rights. These essays remain seminal works for understanding the underpinnings of the United States Constitution and the brilliance of the Founding Fathers.
Analysis of Federalist 10 and Federalist 51
Federalist 10 and Federalist 51 are two of the most influential essays within the Federalist Papers, elucidating fundamental principles that continue to support the American political system. They were carefully crafted to address the concerns of Anti-Federalists who feared that the new Constitution might pave the way for tyranny and undermine individual liberties.
In Federalist 10 , James Madison addresses the inherent dangers posed by factions. He argues that a large republic is the best defense against their menace, as it becomes increasingly challenging for any single faction to dominate in a sprawling and diverse nation. The proposed Constitution provides a systemic safeguard against factionalism by implementing a representative form of government, where elected representatives act as a filtering mechanism.
Federalist 51 further elaborates on how the structure of the new government ensures the protection of individual rights through a system of checks and balances. Madison supports the division of government into three coequal branches, each equipped with sufficient autonomy and authority to check the others. He asserts that ambition must be made to counteract ambition, emphasizing that the self-interest of individuals within each branch would serve as a natural check on the others. 2
Madison also delves into the need for a bicameral legislature, comprising the House of Representatives and the Senate. This dual structure aims to balance the demands of the majority with the necessity of protecting minority rights, thereby preventing majoritarian tyranny.
Together, Federalist 10 and Federalist 51 form a comprehensive blueprint for a resilient and balanced government. Madison's insights address both the internal and external mechanisms necessary to guard against tyranny and preserve individual liberties. These essays speak to the enduring principles that have guided the American republic since its inception, proving the timeless wisdom of the Founding Fathers and the genius of the American Constitution.
Impact and Legacy of the Federalist Papers
The Federalist Papers had an immediate and profound impact on the ratification debates, particularly in New York, where opposition to the Constitution was fierce and vocal. Alexander Hamilton, a native of New York, understood the weight of these objections and recognized that New York's support was crucial for the Constitution's success, given the state's economic influence and strategic location. The essays were carefully crafted to address New Yorkers' specific concerns and to persuade undecided delegates.
The comprehensive detail and logical rigor of the Federalist Papers succeeded in swaying public opinion. They systematically addressed Anti-Federalist critiques, such as the fear that a strong central government would trample individual liberties. Hamilton, Madison, and Jay argued for the necessity of a powerful, yet balanced federal system, capable of uniting the states and ensuring both national security and economic stability.
In New York, the Federalist essays began appearing in newspapers in late 1787 and continued into 1788. Despite opposition, especially from influential Anti-Federalists like Governor George Clinton, the arguments laid out by "Publius" played a critical role in turning the tide. They provided Federalists with a potent arsenal of arguments to counter Anti-Federalists at the state's ratification convention. When the time came to vote, the persuasive power of the essays contributed significantly to New York's eventual decision to ratify the Constitution by a narrow margin.
The impact of the Federalist Papers extends far beyond New York. They influenced debates across the fledgling nation, helping to build momentum towards the required nine-state ratification. Their detailed exposition of the Constitution's provisions and the philosophic principles underlying them offered critical insights for citizens and delegates in other states. The essays became indispensable tools in the broader national dialogue about what kind of government the United States should have, guiding the country towards ratification.
The long-term significance of the Federalist Papers in American political thought and constitutional interpretation is substantial. Over the centuries, they have become foundational texts for understanding the intentions of the Framers. Jurists, scholars, and lawmakers have turned to these essays for guidance on interpreting the Constitution's provisions, shaping American constitutional law. Judges, including the justices of the Supreme Court, have frequently cited these essays in landmark rulings to elucidate the Framers' intent.
The Federalist Papers have profoundly influenced the development of American political theory, contributing to discussions about federalism, republicanism, and the balance between liberty and order. Madison's arguments in Federalist No. 10 have become keystones in the study of pluralism and the mechanisms by which diverse interests can coexist within a unified political system.
The essays laid the groundwork for ongoing debates about the role of the federal government, the balance of power among its branches, and the preservation of individual liberties. They provided intellectual support for later expansions of constitutional rights through amendments and judicial interpretations.
Their legacy also includes a robust defense of judicial review and the judiciary's role as a guardian of the Constitution. Hamilton's Federalist No. 78 provided a compelling argument for judicial independence, which has been a cornerstone in maintaining the rule of law and protecting constitutional principles against transient political pressures.
The Federalist Papers were crucial in the ratification of the Constitution, particularly in the contentious atmosphere of New York's debates. Their immediate effect was to facilitate the acceptance of the new governing framework. In the long term, their meticulously argued positions have provided a lasting blueprint for constitutional interpretation, influencing American political thought and practical governance for over two centuries. The essays stand as a testament to the foresight and philosophical acumen of the Founding Fathers, continuing to illuminate the enduring principles of the United States Constitution.
The Federalist Papers (1787-1788)
Federalist papers.
After the Constitution was completed during the summer of 1787, the work of ratifying it (or approving it) began. As the Constitution itself required, 3/4ths of the states would have to approve the new Constitution before it would go into effect for those ratifying states.
The Constitution granted the national government more power than under the Articles of Confederation . Many Americans were concerned that the national government with its new powers, as well as the new division of power between the central and state governments, would threaten liberty.
What are the Federalist Papers?
In order to help convince their fellow Americans of their view that the Constitution would not threaten freedom, Federalist Paper authors, James Madison , Alexander Hamilton , and John Jay teamed up in 1788 to write a series of essays in defense of the Constitution. The essays, which appeared in newspapers addressed to the people of the state of New York, are known as the Federalist Papers. They are regarded as one of the most authoritative sources on the meaning of the Constitution, including constitutional principles such as checks and balances, federalism, and separation of powers.
Federalist Papers Collection
Federalist and anti-federalist playlist.
Related Resources
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Federalist or Anti-Federalist? Over the next few months we will explore through a series of eLessons the debate over ratification of the United States Constitution as discussed in the Federalist and Anti-Federalist papers. We look forward to exploring this important debate with you! One of the great debates in American history was over the ratification […]
Federalist No. 1 Excerpts Annotated
Federalist 10
Written by James Madison, this essay defended the form of republican government proposed by the Constitution. Critics of the Constitution argued that the proposed federal government was too large and would be unresponsive to the people.
Primary Source: Federalist No. 26
Primary Source: Federalist No. 33
Handout E: Excerpts from Federalist No. 39, James Madison (1788)
Primary Source: Excerpts from Federalist No. 44
Handout B: Excerpts from Federalist No 10, 51, 55, and 57
Handout I: Excerpts of Federalist No. 57
Primary Source: Federalist No. 39
Primary Source: Madison – Excerpts from Federalist No. 47 (1788)
Federalist 51
In this Federalist Paper, James Madison explains and defends the checks and balances system in the Constitution. Each branch of government is framed so that its power checks the power of the other two branches; additionally, each branch of government is dependent on the people, who are the source of legitimate authority.
Handout A: Excerpts from Federalist No 62
Primary Source: Excerpts from Federalist No. 63
Federalist 70
In this Federalist Paper, Alexander Hamilton argues for a strong executive leader, as provided for by the Constitution, as opposed to the weak executive under the Articles of Confederation. He asserts, “energy in the executive is the leading character in the definition of good government.
The structure and powers of the federal government
The system of checks and balances
The division of power between federal and state governments
The protection of individual rights
Alexander Hamilton wrote 51 essays
James Madison authored 29 essays
John Jay contributed 5 essays
Students and Teachers of US History this is a video of Stanley and Christopher Klos presenting America's Four United Republics Curriculum at the University of Pennsylvania's Wharton School. The December 2015 video was an impromptu capture by a member of the audience of Penn students, professors and guests that numbered about 200. - Click Here for more information
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The Federalist Papers
74 pages • 2 hours read
A modern alternative to SparkNotes and CliffsNotes, SuperSummary offers high-quality Study Guides with detailed chapter summaries and analysis of major themes, characters, and more.
Chapter Summaries & Analyses
Federalist No. 1-Federalist No. 14
Federalist No. 15-Federalist No. 22
Federalist No. 23-Federalist No. 36
Federalist No. 37-Federalist No. 51
Federalist No. 52-Federalist No. 66
Federalist No. 67-Federalist No. 77
Federalist No. 78-Federalist No. 85
Key Figures
Index of Terms
Important Quotes
Essay Topics
Discussion Questions
Summary and Study Guide
The Federalist Papers is a collection of 85 essays, most of which were published as serialized articles between October 1787 and April 1788, by the American statesmen Alexander Hamilton , James Madison , and John Jay . Released under the pseudonym Publius, a common name in ancient Rome derived from the word for “the people” or “of the people,” The Federalist Papers were written to persuade the voters of New York state to ratify the US Constitution . The essays lay out the division of power between the federal government and the state governments which remains to this day, albeit in a constantly evolving form. Broadly speaking, this balance of power—in which state authority is subordinate to federal authority in matters related to foreign policy, interstate commerce, and other areas of federal jurisdiction—is known as “Federalism.”
After the 1776 Declaration of Independence and the start of the Revolutionary War, the 13 colonies united in an alliance known as the Articles of Confederation . Under the Articles, each colony remained a sovereign state largely unanswerable to federal authority except in matters of foreign policy. After the surrender of the British in 1781, however, the states stopped funding the federal government, leaving it at risk of defaulting on both its foreign and domestic debts. This debt crisis culminated in Shays’ Rebellion , a 1786-1787 armed insurrection in Massachusetts led by Daniel Shays, a deeply indebted farmer and Revolutionary War veteran who never received compensation for his service. Later that year, 55 delegates including Hamilton and Madison gathered in Philadelphia at a convention to draft a Constitution designed to save the country from anarchy and disunion.
This study guide refers to the 1917 edition published by J.M. Dent & Sons, digitized in 2010.
After a “General Introduction” from Hamilton, Federalist No. 2 through Federalist No. 14 lay out the importance of a strong federal government uniting the states and exercising absolute sovereignty in matters of federal jurisdiction. The most important role played by the federal government concerns the protection of its citizens against foreign invasion and domestic insurrection. Without a federal authority to enforce laws pertaining to interstate disputes, the authors see civil war and anarchy as inevitabilities. Moreover, the federal taxation and tariff schemes proposed under the Constitution will vastly increase revenues so that America can build a strong navy. This poses two major advantages: The first is an increase in national security on the country’s Atlantic coast, and the second is that it positions America to become a major participant in maritime commerce.
Federalist No. 15 through Federalist No. 22 concern the insufficiency of the Articles of Confederation to achieve the goals of national security and good republican governance. With no authority to enforce its laws under the Confederation, the federal government is left with no recourse when states refuse to pay taxes. Adding to its revenue woes, the federal government cannot collect excise taxes or taxes on imports. Finally, with no uniformity in how the states conduct commerce, foreign nations are loath to enter into mutually beneficial trade agreements with America.
In Federalist No. 23 through Federalist No. 36, the authors seek to justify the “energy” of the powers invested in the federal government by the Constitution. Much of these essays concern the then-controversial notion of a standing federal army during peacetime. Although both Madison and Hamilton grant that powerful militaries in times of peace may lead to tyranny and oppression, they are confident that the benefits to national security well outweigh the risks. These essays also go into greater detail about the benefits of direct federal taxes on citizens, as opposed to the current taxation scheme in which the federal government collects taxes indirectly through the states.
The largest group of essays, Federalist No. 37 through Federalist No. 83, explain and answer objections to the powers invested in the legislative, executive, and judiciary branches of the federal government under the Constitution. While the authors acknowledge the wisdom of the maxim concerning the separation of these powers into different branches, they also argue that some overlap is necessary to ensure the appropriate checks and balances on each branch. As detailed in these essays, the government under the US Constitution consists of a mixture of direct and indirect republican qualities; for example, the House of Representatives will be directly elected by the people, while Senators will be appointed by elected state legislators. The President, meanwhile, will be voted on by state electors chosen for this express purpose every four years. These essays also detail the contentious issue of how enslaved people will be counted for the purpose of apportioning House representatives. In what came to be known as the three-fifths compromise, an enslaved person will count as three-fifths of a free person when calculating each state’s population and assigning House seats accordingly.
In Federalist No. 84, Hamilton expresses his opposition to the inclusion of a bill of rights, which at the point had not yet been appended to the Constitution. In the final essay, Federalist No. 85, Hamilton openly admits that the Constitution under consideration is not perfect. Nevertheless, he believes that the Articles of Confederation have left the country teetering on the brink of insolvency and anarchy; therefore, it would be extremely impudent not to ratify the Constitution in its current form.
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The Federalist Papers
The Federalist Papers are a series of 85 articles or essays advocating the ratification of the United States Constitution . The Papers are authored as follows: Alexander Hamilton (51 articles: nos. 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85), James Madison (26 articles: nos. 10, 14, 37–58 and 62–63) and John Jay (5 articles: 2–5 and 64). (Nos. 18–20 were the result of a collaboration between Madison and Hamilton.)
(Note: All quotes in this section are from The Gideon Edition ; see the "References" section below for bibliographic information.)
Alexander Hamilton, No. 1
John Jay, No. 2
John Jay, No. 3
John Jay, No. 4
John Jay, No. 5
Alexander Hamilton, No. 6
Alexander Hamilton, No. 7 ( spelling as per text...)
Alexander Hamilton, No. 8
Alexander Hamilton, No. 9
James Madison, No. 10
Alexander Hamilton, No. 11
Alexander Hamilton, No. 12
Alexander Hamilton, No. 13
Alexander Hamilton, No. 14
Alexander Hamilton, No. 15
Alexander Hamilton, No. 16
Alexander Hamilton, No. 17
James Madison, No. 18
James Madison, No. 19
James Madison, No. 20
Alexander Hamilton, No. 21
Alexander Hamilton, No. 22
Alexander Hamilton, No. 23
Alexander Hamilton, No. 24
Alexander Hamilton, No. 25
Alexander Hamilton, No. 26
Alexander Hamilton, No. 27
Alexander Hamilton, No. 28
Alexander Hamilton, No. 29
Alexander Hamilton, No. 30
Alexander Hamilton, No. 31
Alexander Hamilton, No. 32
Alexander Hamilton, No. 33
Alexander Hamilton, No. 34
Alexander Hamilton, No. 35
Alexander Hamilton, No. 36
Alexander Hamilton, No. 37
James Madison, No. 38
James Madison, No. 39
James Madison, No. 40
James Madison, No. 41
James Madison, No. 42
James Madison, No. 43
James Madison, No. 44
James Madison, No. 45
James Madison, No. 46
James Madison, No. 47
James Madison, No. 48
James Madison, No. 49
James Madison, No. 50
James Madison, No. 51
James Madison, No. 52
James Madison, No. 53
James Madison, No. 54
James Madison, No. 55
James Madison, No. 56
James Madison, No. 57
James Madison, No. 58
Alexander Hamilton, No. 59
Alexander Hamilton, No. 60
Alexander Hamilton, No. 61
James Madison, No. 62
James Madison, No. 63
John Jay, No. 64
Alexander Hamilton, No. 65
Alexander Hamilton, No. 66
Alexander Hamilton, No. 67
Alexander Hamilton, No. 68
Alexander Hamilton, No. 69
Alexander Hamilton, No. 70
Alexander Hamilton, No. 71
Alexander Hamilton, No. 72
Alexander Hamilton, No. 73
Alexander Hamilton, No. 74
Alexander Hamilton, No. 75
Alexander Hamilton, No. 76
Alexander Hamilton, No. 77
Alexander Hamilton, No. 78
Alexander Hamilton, No. 79
Alexander Hamilton, No. 80
Alexander Hamilton, No. 81
Alexander Hamilton, No. 82
Alexander Hamilton, No. 83
Alexander Hamilton, No. 84
Alexander Hamilton, No. 85
Quotes about the Federalist Papers
From pages 74 and 75 of Founding Fathers: The Essential Guide to the Men Who Made America , "Federalist Papers" entry. The book is from Encyclopædia Britannica, with an introduction by Joseph J. Ellis. Published by John Wiley & Sons, Inc. ISBN 978-0-470-11792-7 . (copyright 2007)
The Federalist, The Gideon Edition , Edited by George W. Carey and James McClellan, Liberty Fund Indianapolis, ISBN 0-86597-289-3
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Federalist nos. 71-80.
Introduction
Federalist Nos. 1-10
Federalist Nos. 11-20
Federalist Nos. 21-30
Federalist Nos. 31-40
Federalist Nos. 41-50
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Federalist Nos. 61-70
Federalist Nos. 81-85
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Federalist no. 71.
The Duration in Office of the Executive
From the New York Packet Tuesday, March 18, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.
There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.
But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.
The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment.
It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate.
It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation 1 attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.
This was the case with respect to Mr. Fox's India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people. Back to text
Federalist No. 72
The Same Subject Continued, and Re-Eligibility of the Executive Considered
From the New York Packet Friday, March 21, 1788.
THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government.
With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.
Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary.
One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good.
Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition.
An ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty.
Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?
A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellow citizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility.
A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration.
A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By NECESSITATING a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy.
These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.
What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.
As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege.
There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.
Federalist No. 73
The Provision For The Support of the Executive, and the Veto Power
THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that "The President of the United States shall, at stated times, receive for his services a compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United States, or any of them." It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.
The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States.
The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body.
The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self defense.
But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.
The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.
But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised.
If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican?
It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard.
But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.
This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers. 1
I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.
Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number. Back to text
Federalist No. 74
The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
From the New York Packet Tuesday, March 25, 1788.
THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.
"The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.
He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.
Federalist No. 75
The Treaty Making Power of the Executive
For the Independent Journal
THE President is to have power, "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur."
Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of ALL the members of the Senate, to two thirds of the members PRESENT. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.
With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.
However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.
To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.
The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members MAY, and usually DO, represent a State; whence it happens that Congress, who now are solely invested with ALL THE POWERS of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.
Federalist No. 76
The Appointing Power of the Executive
From the New York Packet . Tuesday, April 1, 1788.
THE President is "to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session."
It has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration.
It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venality in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venality of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "No senator or representative shall during the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office."
Federalist No. 77
The Appointing Power Continued and Other Powers of the Executive Considered
From the N ew York Packet . Friday, April 4, 1788.
IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.
To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true.
To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper INFLUENCE OVER the Senate, because the Senate would have the power of RESTRAINING him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: "the Senate would influence the Executive." As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that TWO out of the inconsiderable number of FOUR men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture.
Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution.
I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea.
The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. As this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.
We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?
Federalist No. 78
The Judiciary Department From McLEAN'S Edition, New York.
WE PROCEED now to an examination of the judiciary department of the proposed government.
In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.
First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility.
According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 ; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." 2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, 3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.
The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing." "Spirit of Laws." vol. i., page 186. Back to text
Idem, page 181. Back to text
Vide "Protest of the Minority of the Convention of Pennsylvania," Martin's Speech, etc. Back to text
Federalist No. 79
The Judiciary Department Continued From McLEAN'S Edition, New York.
NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN's SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that PERMANENT 1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at STATED TIMES receive for their services a compensation which shall not be DIMINISHED during their continuance in office."
This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.
This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.
Vide "Constitution of Massachusetts," chapter 2, section I, article 13. Back to text
Federalist No. 80
The Powers of the Judiciary From McLEAN'S Edition, New York.
To JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects.
It seems scarcely to admit of controversy, that the judiciary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.
The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.
The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.
A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.
It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.
The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend "all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects." This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend:
First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by "cases arising under the Constitution," in contradiction from those "arising under the laws of the United States"? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole.
It has also been asked, what need of the word "equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State, CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE SAME STATE.
Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.
From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.
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The first amendment, historic document, federalist 10 (1787).
James Madison | 1787
After the Constitutional Convention adjourned in September 1787, heated local debate followed on the merits of the Constitution. Each state was required to vote on ratification of the document. A series of articles signed “Publius” soon began in New York newspapers. These Federalist Papers strongly supported the Constitution and continued to appear through the summer of 1788. Hamilton organized them, and he and Madison wrote most of the series of eighty-five articles, with John Jay contributing five. These essays were read carefully and debated in newspapers, primarily in New York. The Federalist Papers have since taken on immense significance, as they have come to be seen as the definitive early exposition on the Constitution’s meaning and giving us the main arguments for our form of government. In Federalist 10, Madison fulfills the promise made in Federalist No. 9 to demonstrate the utility of the proposed union in overcoming the problem of faction. Madison’s argument is the most systematic argument presented in the Federalist Papers , with syllogistically developed reasoning sustained virtually throughout.
Selected by
William B. Allen
Emeritus Dean of James Madison College and Emeritus Professor of Political Science at Michigan State University
Jonathan Gienapp
Associate Professor of History at Stanford University
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. …
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 unwarranted 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. 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 minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse 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 is worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it would not be a 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 selflove, 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 an uniformity of interests. The protection of those 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 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 into 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 the party and faction in the necessary and ordinary operations of government. …
It is 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. …
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 the greatest object to which our inquiries are directed. ...
By what means is the 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. …
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 from the mischiefs of faction. …
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 the 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.... The question resulting is, whether small or extensive republics are most 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 constituents, and being proportionately greatest 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 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 center in men who possess the most attractive merit, and the most diffusive and established characters. …
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. .. Extend the sphere, and you will 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 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. …
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 - enjoyed by the union over the states composing it. …
In the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government.
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The federalist no. 51, [6 february 1788], the federalist no. 51 1 by james madison or alexander hamilton.
[New York, February 6, 1788]
To the People of the State of New-York.
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 expence, 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 defence 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 controul 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 controuls 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 controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul 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 centinel 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 defence. 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 defence 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 departmen[t]?
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 2 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 3 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 controul each other; at the same time that each will be controuled 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 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 shews 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 form, 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 proportionally 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 4 be gradually 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 5 any other principles than those of justice and the general good; and 6 there being thus less danger to a minor from the will of the 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 practicable 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 .
The [New York] Independent Journal: or, the General Advertiser , February 6, 1788. This essay appeared on February 8 in New-York Packet and on February 11 in The [New York] Daily Advertiser . In the 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 edition this essay is numbered 51, in the newspapers it is numbered 50.
1 . For background to this document, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .
Essay 51, like essay 50, was claimed by H and Madison. The internal evidence presented by Edward G. Bourne (“The Authorship of the Federalist,” The American Historical Review , II [April, 1897], 449–51), strongly indicates Madison’s authorship. Bourne printed in parallel columns sentences from essay 51 which correspond very closely, sometimes exactly, to earlier writings by Madison. For other reasons why Madison’s claim to the authorship of this essay outweighs (but does not necessarily obviate) that of H, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .
2 . “it” substituted for “that system” in 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 .
3 . “the” inserted at this point in Hopkins.
4 . “or parties” omitted in Hopkins.
5 . “upon” substituted for “on” in 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 and Hopkins.
6 . “Whilst” substituted for “and” in McLean and Hopkins.
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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 ...
The Federalist Papers
The Federalist Papers are a series of 85 essays arguing in support of the United States Constitution.Alexander Hamilton, James Madison, and John Jay were the authors behind the pieces, and the three men wrote collectively under the name of Publius.. Seventy-seven of the essays were published as a series in The Independent Journal, The New York Packet, and The Daily Advertiser between October ...
Federalist papers
The Federalist The Federalist (1788), a book-form publication of 77 of the 85 Federalist essays. Federalist papers, series of 85 essays on the proposed new Constitution of the United States and on the nature of republican government, published between 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay in an effort to persuade New ...
Full Text of The Federalist Papers
The Federalist, commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788.The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time. The Federalist Papers were written and published to urge New Yorkers to ratify the proposed ...
Federalist Papers and the Constitution
The Federalist Papers, a series of 85 essays written by Alexander Hamilton, James Madison, and John Jay under the pseudonym "Publius," aimed to calm fears and win support for the Constitution. Hamilton initiated the project, recruiting Madison and Jay to contribute. Madison drafted substantial portions of the Constitution and provided detailed defenses, while Jay, despite health issues, also ...
Federalist Papers: Primary Documents in American History
The Federalist Papers were a series of eighty-five essays urging the citizens of New York to ratify the new United States Constitution. Written by Alexander Hamilton, James Madison, and John Jay, the essays originally appeared anonymously in New York newspapers in 1787 and 1788 under the pen name "Publius."
The Federalist Papers (1787-1788)
The essays, which appeared in newspapers addressed to the people of the state of New York, are known as the Federalist Papers. They are regarded as one of the most authoritative sources on the meaning of the Constitution, including constitutional principles such as checks and balances, federalism, and separation of powers. Save to My Library ...
Federalist Papers
The Federalist Papers were published and sold by John and Andrew M'Lean as a collected work as the "The Federalist: a collection of essays, written in favor of the new Constitution, as agreed upon by the Federal convention, September 17, 1787," New York Printed, 1788. The work consists of 85 essays written by Alexander Hamilton, James ...
The Federalist Papers Summary and Study Guide
The Federalist Papers is a collection of 85 essays, most of which were published as serialized articles between October 1787 and April 1788, by the American statesmen Alexander Hamilton, James Madison, and John Jay.Released under the pseudonym Publius, a common name in ancient Rome derived from the word for "the people" or "of the people," The Federalist Papers were written to persuade ...
The Federalist Papers
The Federalist Papers. Appearing in New York newspapers as the New York Ratification Convention met in Poughkeepsie, John Jay, Alexander Hamilton and James Madison wrote as Publius and addressed the citizens of New York through the Federalist Papers. These essays subsequently circulated and were reprinted throughout the states as the ...
Introductory Note: The Federalist, [27 October 1787-28 May 1788]
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. ... it has long been accepted that Hamilton wrote essays 1, 6-9, 11-13, 15-17, 21-36, 59-61, ... ("The Authorship of the Disputed Federalist Papers," The ...
3.5 Info Brief: The Federalist Papers
The Federalist Papers were a series of 85 essays printed in newspapers to persuade critics of the Constitution and those on the fence to support ratification. Alexander Hamilton wrote 51 of these essays, James Madison 29, and John Jay five. All three authors wrote under the same famous pen name—"Publius.".
1.6: The Federalist Papers and Constitutional Government
The most forceful defense of the new Constitution was The Federalist Papers, a compilation of 85 anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles were written by Alexander Hamilton and James Madison. They examined the benefits of the new Constitution and analyzed the ...
Federalist 1 (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 ...
Introduction
The 85 essays known as the Federalist Papers were originally published as letters in New York newspapers 1787-1788. This guide serves as an index to the letters in the historic newspapers and a list of holdings at the Library of Congress.
3.5 Primary Source: Federalist No. 10 and Federalist No. 55
These Federalist Papers supported the Constitution and continued to appear through the summer of 1788. Alexander Hamilton organized them, and he and Madison wrote most of the series of 85 articles, with John Jay contributing five. These essays were read and debated, especially in New York, which included many critics of the Constitution.
Federalist No. 10
Federalist No. 10 is an essay written by James Madison as the tenth of The Federalist Papers, a series of essays initiated by Alexander Hamilton arguing for the ratification of the United States Constitution.It was first published in The Daily Advertiser (New York) on November 22, 1787, under the name "Publius".Federalist No. 10 is among the most highly regarded of all American political writings.
The Federalist Papers
John Jay. The Federalist Papers are a series of 85 articles or essays advocating the ratification of the United States Constitution.The Papers are authored as follows: Alexander Hamilton (51 articles: nos. 1, 6-9, 11-13, 15-17, 21-36, 59-61, and 65-85), James Madison (26 articles: nos. 10, 14, 37-58 and 62-63) and John Jay (5 articles: 2-5 and 64).
Federalist Papers: Primary Documents in American History
The Federalist Papers were a series of essays written by Alexander Hamilton, James Madison, and John Jay under the pen name "Publius." ... This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make ...
The Federalist Number 10, [22 November] 1787
1. Douglass Adair showed chat in preparing this essay, especially that part containing the analysis of factions and the theory of the extended republic, JM creatively adapted the ideas of David Hume ("'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly, XX [1956-57], 343-60).
Federalist 10 (1787)
In Federalist 10, Madison fulfills the promise made in Federalist No. 9 to demonstrate the utility of the proposed union in overcoming the problem of faction. Madison's argument is the most systematic argument presented in the Federalist Papers, with syllogistically developed reasoning sustained virtually throughout.
The Federalist No. 51, [6 February 1788]
In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition this essay is numbered 51, in the newspapers it is numbered 50. 1. For background to this document, see "The Federalist. Introductory Note," October 27, 1787-May 28, 1788. Essay 51, like essay 50, was claimed by H and Madison.
IMAGES
VIDEO
COMMENTS
Republicanism. The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The collection was commonly known as The Federalist until the name The Federalist Papers emerged ...
Federalist 1: The Challenge and the Outline. Hamilton says Americans have the opportunity and obligation to "decide the important question" can "good government" be established by "reflection and choice," or is mankind "forever destined to depend for their political constitutions on accident and force.".
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 ...
The Federalist Papers are a series of 85 essays arguing in support of the United States Constitution.Alexander Hamilton, James Madison, and John Jay were the authors behind the pieces, and the three men wrote collectively under the name of Publius.. Seventy-seven of the essays were published as a series in The Independent Journal, The New York Packet, and The Daily Advertiser between October ...
The Federalist The Federalist (1788), a book-form publication of 77 of the 85 Federalist essays. Federalist papers, series of 85 essays on the proposed new Constitution of the United States and on the nature of republican government, published between 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay in an effort to persuade New ...
The Federalist, commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788.The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time. The Federalist Papers were written and published to urge New Yorkers to ratify the proposed ...
The Federalist Papers, a series of 85 essays written by Alexander Hamilton, James Madison, and John Jay under the pseudonym "Publius," aimed to calm fears and win support for the Constitution. Hamilton initiated the project, recruiting Madison and Jay to contribute. Madison drafted substantial portions of the Constitution and provided detailed defenses, while Jay, despite health issues, also ...
The Federalist Papers were a series of eighty-five essays urging the citizens of New York to ratify the new United States Constitution. Written by Alexander Hamilton, James Madison, and John Jay, the essays originally appeared anonymously in New York newspapers in 1787 and 1788 under the pen name "Publius."
The essays, which appeared in newspapers addressed to the people of the state of New York, are known as the Federalist Papers. They are regarded as one of the most authoritative sources on the meaning of the Constitution, including constitutional principles such as checks and balances, federalism, and separation of powers. Save to My Library ...
The Federalist Papers were published and sold by John and Andrew M'Lean as a collected work as the "The Federalist: a collection of essays, written in favor of the new Constitution, as agreed upon by the Federal convention, September 17, 1787," New York Printed, 1788. The work consists of 85 essays written by Alexander Hamilton, James ...
The Federalist Papers is a collection of 85 essays, most of which were published as serialized articles between October 1787 and April 1788, by the American statesmen Alexander Hamilton, James Madison, and John Jay.Released under the pseudonym Publius, a common name in ancient Rome derived from the word for "the people" or "of the people," The Federalist Papers were written to persuade ...
The Federalist Papers. Appearing in New York newspapers as the New York Ratification Convention met in Poughkeepsie, John Jay, Alexander Hamilton and James Madison wrote as Publius and addressed the citizens of New York through the Federalist Papers. These essays subsequently circulated and were reprinted throughout the states as the ...
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. ... it has long been accepted that Hamilton wrote essays 1, 6-9, 11-13, 15-17, 21-36, 59-61, ... ("The Authorship of the Disputed Federalist Papers," The ...
The Federalist Papers were a series of 85 essays printed in newspapers to persuade critics of the Constitution and those on the fence to support ratification. Alexander Hamilton wrote 51 of these essays, James Madison 29, and John Jay five. All three authors wrote under the same famous pen name—"Publius.".
The most forceful defense of the new Constitution was The Federalist Papers, a compilation of 85 anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles were written by Alexander Hamilton and James Madison. They examined the benefits of the new Constitution and analyzed the ...
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 ...
The 85 essays known as the Federalist Papers were originally published as letters in New York newspapers 1787-1788. This guide serves as an index to the letters in the historic newspapers and a list of holdings at the Library of Congress.
These Federalist Papers supported the Constitution and continued to appear through the summer of 1788. Alexander Hamilton organized them, and he and Madison wrote most of the series of 85 articles, with John Jay contributing five. These essays were read and debated, especially in New York, which included many critics of the Constitution.
Federalist No. 10 is an essay written by James Madison as the tenth of The Federalist Papers, a series of essays initiated by Alexander Hamilton arguing for the ratification of the United States Constitution.It was first published in The Daily Advertiser (New York) on November 22, 1787, under the name "Publius".Federalist No. 10 is among the most highly regarded of all American political writings.
John Jay. The Federalist Papers are a series of 85 articles or essays advocating the ratification of the United States Constitution.The Papers are authored as follows: Alexander Hamilton (51 articles: nos. 1, 6-9, 11-13, 15-17, 21-36, 59-61, and 65-85), James Madison (26 articles: nos. 10, 14, 37-58 and 62-63) and John Jay (5 articles: 2-5 and 64).
The Federalist Papers were a series of essays written by Alexander Hamilton, James Madison, and John Jay under the pen name "Publius." ... This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make ...
1. Douglass Adair showed chat in preparing this essay, especially that part containing the analysis of factions and the theory of the extended republic, JM creatively adapted the ideas of David Hume ("'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly, XX [1956-57], 343-60).
In Federalist 10, Madison fulfills the promise made in Federalist No. 9 to demonstrate the utility of the proposed union in overcoming the problem of faction. Madison's argument is the most systematic argument presented in the Federalist Papers, with syllogistically developed reasoning sustained virtually throughout.
In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition this essay is numbered 51, in the newspapers it is numbered 50. 1. For background to this document, see "The Federalist. Introductory Note," October 27, 1787-May 28, 1788. Essay 51, like essay 50, was claimed by H and Madison.