The Federalist Papers and the Anti-Federalists

The Federalist: An Overview

From October 1787 to the summer of 1788, 85 essays appeared in New York newspapers under the shared pen name "Publius," after Publius Valerius Publicola, a founder of the Roman Republic. They aimed to persuade New Yorkers to ratify the Constitution and were collected as a book, The Federalist, in 1788.

Authorship of a few essays was long disputed between Hamilton and Madison. Most scholars now credit those essays to Madison. Hamilton organized the project. Courts, including the Supreme Court, still cite The Federalist as evidence of the Constitution's original meaning.

Federalist No. 10 (Madison): Controlling Faction

Problem: Popular governments are endangered by factions:

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

Federalist No. 10

Removing the causes is worse than the disease. Factions could be prevented only by destroying liberty or by giving everyone the same opinions, which is impossible. "Liberty is to faction what air is to fire." The causes of faction are "sown in the nature of man." Madison wrote that "the most common and durable source of factions has been the various and unequal distribution of property."

Solution: control the effects. A minority faction can be outvoted under majority rule. The real danger is a majority faction. Madison's answer:

1. A republic, not a pure democracy. Representatives "refine and enlarge the public views" by passing them through a chosen body of citizens.
2. A large republic. "Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."

Why it matters: No. 10 answered the Anti-Federalist claim, drawn from Montesquieu, that republics must be small. It underlies the American idea that minority rights are protected by diversity and representation.

Federalist No. 14 (Madison): A Republic Can Be Large

Opponents argued that the United States was too large for republican government. Madison replied that this confuses a democracy with a republic:

"In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region."

Federalist No. 14

He added that the national government has only limited, enumerated powers, while states handle local concerns. Improvements in roads and communication would also knit the country together. He urged Americans not to reject the "novelty" of a large republic. They had already shown courage in creating a new kind of government.

Federalist No. 31 (Hamilton): The Power of Taxation

Hamilton argued that the national government needs a general power of taxation. He started from "first principles," maxims he considered as self-evident as those of geometry:

"A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people."

Federalist No. 31

His reasoning: the national government is responsible for defense and the public welfare. Future emergencies cannot be predicted, so the government's means, including revenue, should not be limited in advance. The Articles' system of requesting money from the states had failed. Hamilton also argued that the states would keep their own taxing power. Taxation is thus a concurrent power, and the people, not paper limits, are the ultimate check on abuse.

Federalist No. 39 (Madison): Republican and Partly Federal, Partly National

Madison first defined a republic:

"We may define a republic to be … a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior."

Federalist No. 39

The Constitution meets that test. The House is elected directly. The Senate (then chosen by state legislatures), the president (through electors), and judges (appointed and confirmed) all derive power from the people indirectly. The guarantee of a republican government to the states and the ban on titles of nobility confirm its republican character.

Madison then answered the charge that the Constitution created a "consolidated" national government. He examined its foundation, sources of power, operation, extent, and amendment process, and concluded that it is a mix:

"The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both."

Federalist No. 39

Ratification by the people of each state is federal. The House, based on population, is national, and the Senate, with equal state representation, is federal. National laws act directly on individuals, which is national. National power is limited to enumerated objects, which is federal. See federalism.

Federalist No. 51 (Madison): Checks and Balances

How can paper limits keep power in check? Madison's answer was to arrange the structure so that each branch defends itself against the others:

"Ambition must be made to counteract ambition. … If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Federalist No. 51

• Separation of powers with checks: each branch gets "the necessary constitutional means and personal motives to resist encroachments of the others."
• The legislature dominates in a republic, so it is divided into two houses chosen differently.
• Double security: "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." This means federalism plus separation of powers.
• Protecting minorities: a society broken into many interests protects minority rights. See No. 10.

Other Federalist Papers to Recognize

The FCLE may include other essays, with context provided. These are the best known:

No. 2 (Jay): The value of union

Jay argued that Americans were one people, connected by geography, ancestry, language, religion, principles of government, and the shared sacrifice of the Revolution, and that union under one government served their safety.

No. 47 (Madison): Separation of powers

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Madison explained that Montesquieu did not require total separation. Some overlap, which is what makes checks possible, is consistent with liberty.

No. 70 (Hamilton): An energetic executive

"Energy in the Executive is a leading character in the definition of good government." Hamilton defended a single president, not a council, for decisive action and clear accountability.

No. 78 (Hamilton): The judiciary and judicial review

Hamilton called the judiciary the "least dangerous" branch because it has "neither FORCE nor WILL, but merely judgment." He defended life tenure ("good behavior") for judicial independence. He also argued that courts must treat the Constitution as fundamental law and void contrary acts of the legislature, anticipating judicial review.

No. 84 (Hamilton): Against a bill of rights

Hamilton argued that a bill of rights was unnecessary because the national government had only limited powers. He also warned that it could be dangerous: "For why declare that things shall not be done which there is no power to do?" Listing exceptions might imply that unlisted powers had been granted. The Ninth Amendment was designed to answer this concern.

The Anti-Federalist Papers and Brutus No. 1

Anti-Federalists wrote many essays under pen names such as Brutus, Cato, Centinel, and the Federal Farmer. They were later collected as the "Anti-Federalist Papers." The pen name Brutus recalled the Roman who killed Julius Caesar to save the republic. The author of the Brutus essays is often thought to be New York's Robert Yates, though this is not certain.

Brutus No. 1 (October 1787) is the best-known Anti-Federalist essay. It appeared in a New York newspaper shortly before Federalist No. 1. Its main arguments:

• Consolidation: The Constitution would not create a true confederation of states. It would create a consolidated national government that would gradually absorb the states. Brutus pointed especially to the Necessary and Proper Clause, the Supremacy Clause, and the unlimited power to tax.
• A large republic cannot last: citing Montesquieu, Brutus argued that free republics must be small, with citizens of similar interests and views. A vast, diverse country would need force to govern, and representatives would be too few to know their constituents. Federalist Nos. 10 and 14 directly answered this argument.
• Federal courts would extend national power at the states' expense.
• No bill of rights protected the people against this powerful government.

Legacy: The Anti-Federalists lost the ratification fight, but their warnings produced the Bill of Rights. Their concerns about federal power remain part of American debate today.