Thoughts on the Federalist Papers

I have read about half of the Federalist Papers, a collection of over 80 papers written by James Madison, Alexander Hamilton, and John Jay under the pseudonym Publius. The articles ran in New York newspapers and were intended to influence the key decision makers in New York to vote in favor of the proposed constitution for the United States. The authors included arguments for a strong central government, examples of the pitfalls of the Articles of Confederation, and stories of the necessity of a strong centralized government to protect the people and help the newly formed states establish themselves in a world of entrenched political powers across the Atlantic.

 

Like our vision of “original intent” the meaning of the Federalist Papers has shifted over time and they have come to represent something greater than what they originally were. Many people look back at the Federalist Papers as a type of manual outlining the thoughts, intentions, and goals of our founding fathers when writing the constitution. We see them as incredibly influential articles that shaped the understanding of the constitution and the direction our nation would move. Joseph Ellis, author of The Quartet sees this view of the federalist papers as troubling. He states, “It is highly likely the Federalist Papers have exercised a larger effect on our later perceptions of the debate over ratification than they did over the debate itself.” Ellis argues that in some ways, the Federalist Papers can be viewed as advocacy propaganda saved from the winning side of an argument and distorted by a victorious view of history.

 

“Even our modern inclination to see the Federalist Papers as the seminal statement of “the original intentions” of the framers is historically incorrect, since Publius represented only one side of the ratification debate–the winning side, to be sure, but a wholly partisan perspective. Finally, the Federalist Papers were aimed not at posterity but at a limited audience of the moment. As Madison later explained, Publius was intended “to promote the ratification of the new Constitution by the State of N. York, where it was powerfully opposed, and where success was deemed of critical importance.””

 

When we look back at the Federalist Papers we read into them what we want to see today and we find support for the ideas we already have. The articles themselves are brilliant and insightful when thinking about government and governance today, but in many ways they cannot be thought of as technical blueprint of the Constitution. They are powerful justifications for the decisions made in adopting the Constitution, but they are just another argument that we can learn from when thinking about how to structure government and the decisions made 230 years ago.

Original Intent

A popular idea among many people, in regard to the Constitution of the United States is the idea of “Original Intent.” It is a concept that suggests that our constitution should be strictly followed and narrowly interpreted, that what was written and ratified in 1788 is what should still guide our government today. Historian Joseph Ellis thinks this is a troublesome view given the nature of the Constitution’s adoption and approaches of Madison who greatly influenced the shaping of the constitution.

 

In my last post, I wrote about the Constitution as a living document, designed with the intent that it would be updated and adjusted through time to meet the needs of citizens at a given point. Ellis, in his book The Quartet, continued with this view of the document and wrote,

 

“The Constitution was intended less to resolve arguments than to make argument itself the solution. For judicial devotees of “originalism” or “original intent,” this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end. Madison’s “original intention” was to make all “original intentions” infinitely negotiable in the future.”

 

The Constitution has few hard and fast rules, especially when the Bill of Rights and subsequent amendments are not considered. It focuses most thoroughly on the role of Congress and authorities and duties delegated to Congress. The Executive Branch is also fairly well detailed and explained, but the Judicial Branch is hardly developed in the Constitution. Broad language such as “necessary and proper” was written into the Constitution, creating  flexibility for Congress. Trying to look back at the Constitution and assume what the founding fathers waned our government and society to look like today is trivial in the eyes of Ellis. The Constitution they wrote encourages debate, argument, and new interpretation. Clinging to ideas of original intent appears counter productive, because the founders never intended for their understanding of the world to lock in specific governance rules for all time. The intent was a document which would define and separate power to allow for deliberation and debate among the branches and among the people to guide the important decisions of the nation.

 

I also believe that original intent does a disservice to the Constitution and to society by elevating the document and the founding fathers to a quasi-religious level. To assume that original intent is the most appropriate way to understand the Constitution is to assume that the document itself and the men who wrote it were somehow greater than ordinary men and that the written words of the constitution are in some sense sacrosanct and divine. Our founding fathers, the quartet detailed by Ellis in particular, no doubt achieved something remarkable with the writing and adoption of the constitution, but if you study the time and can view history through the lens of those who experienced it, you see that history was shaped by people who made mistakes just as we do today, who were counting on good luck, and who had equally cloudy judgement and foresight as today’s leaders. Just as we would assume that a law written today is not perfect and should not ever be adjusted when the situation calls for it, we should not assume that the Constitution is a document that cannot be re-imagined and re-understood as society and the world change.

A Living Constitution

Our nation is very familiar with debates regarding the constitutionality of rules, regulations, actions, and laws enacted by the Federal Government. As I write this, there are constitutional challenges brought about by our current president with issues involving his profiting from foreign individuals staying at his hotels and questions about his ability to declare a national emergency to pull in funding to build a border structure between the United States and Mexico. The questions involve whether the United States Constitution gives the president authority to do something or bars the president from doing something. We are operating with a legal document that will be entering its 231st year of service in 2019, and it is clear to all that our founding fathers could not have written a document to address ever situation that our government finds itself in today.

 

Historian Joseph Ellis writes about the approach taken by the framers of the constitution in his book The Quartet and helps us understand our relationship to the document ratified in 1788. Ellis writes, “the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion.”

 

James Madison, who greatly shaped the text and structure of the Constitution, was focused on creating a document that could pull together the delegates of the 13 states and create a stronger centralized government. Madison knew that he would need the support of large and small states, rural farmers and more industrialized people from burgeoning cities, and would need to convince them that they would all have a voice and that no one group would unduly dominate another. Ellis suggests that we should see the Constitution as a forum for continuous discussion and improvement. He believes that the intent of the framers was to create a guiding document that would provide for national unity and governance, while reacting to the needs and evolving nature of the nation through time. To look at the Constitution as a sacred text whose word must be followed in all situations raises the level of our founding fathers to an unreasonable level. It assumes that they were somehow more than human and that the document they created is somehow greater than any other legal document before or since. The only way we can truly move forward with governance is to continually re-imagine and reshape the Constitution to function within the unique demands and challenges of the time.

Growing Wise With Age: A Quote From Ben Franklin

In his book The Quartet, author Joseph Ellis describes the conflicts and challenges that our founding fathers faced as they attempted to create a new constitution to replace the Articles of Confederation and tried to bring about a new American identity to unite all citizens living across the former British Colonies. The idea of a strong national government was not popular, but George Washington, Alexander Hamilton, James Madison, and John Jay worked to change the minds of key stakeholders and to build support for a new government structure that created a new federal government with more power than the central government established under the Articles of Confederation. One of the people who doubted the government established in the new constitution was Benjamin Franklin, an attendee of the Constitutional Convention in Philadelphia.

 

Franklin, Ellis describes, was in his 80’s at the time of the convention and in declining health. James Wilson, a colleague of Franklin’s from Pennsylvania had to read his statements, and often times Franklin’s ideas and proposals were a bit off track, but always respectfully observed. However, even in his declining health, Franklin managed to deliver one of the wisest comments on the new constitution, demonstrating self-awareness, the influence of the quartet that Ellis describes in the book, and a positive mindset that everyone should remember as we age. In an address to the convention delivered by Wilson, Franklin stated:

 

“I confess that I do not entirely approve this constitution at present, but Sir, I am not sure I shall never approve it: For having lived long, I have experienced many instances of being oblig’d, by better information or fuller consideration, to change opinions on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow the more apt I am to doubt my own judgment, and pay more respect to the judgment of others…
    In these sentiments, Sir, I agree to this Constitution, with all its faults, if they are such; because I think a  General Government necessary for us…”

 

The wisest people I have met or listened to in important conversations have expressed this idea. The people who I have seen make the worst decisions or fail to be the most considerate have demonstrated the opposite mindset. When we are young, we are eager to show our value and intelligence. We put out an image of being more competent and knowledgeable than we really are. As we get older however, we start to see through study, experience, and learning that we do not actually know as much as we would like to believe and present to the world. Accepting that we don’t know everything, that we have a limited perspective and a limited amount of time to observe the world helps us be more honest and open to information which may conflict with what we already believe and with what we want to believe. To find the best outcomes and to be the most considerate of what is really taking place around us requires that we be open to changing our mind and to objectively listening to the opinions of those around us, especially sagacious leaders.

Slavery in the American Constitution

In his book The Quartet, Joseph Ellis examines the debates leading up to the adoption of the current United States Constitution and the actions of four men in particular to drive the nation toward true nationhood and the adoption of the Constitution. George Washington, Alexander Hamilton, James Madison, and John Jay all played crucial roles in advocating for a constitution that gave strong power to a centralized national government that could bring unity and cohesion among the former British Colonies. A central tension and challenge in uniting the colonies existed around slavery and today, as we look back at the founding of our nation and at our Constitution, we cannot help but think about the role that slavery played in the founding of our nation and about the meaning of its inclusion in our Constitution. Regarding slavery, Ellis writes, “Whether this was a failure of moral leadership or a realistic recognition of the politically possible can be debated until the end of time.” Our views of our nations founding and the role that slavery played is hard to think through and is something worth evaluating on a deeper level. Precisely why it was included in the Constitution and the role it played at the nation’s birth is challenging and the meaning attached to it changes as you shift the perspective through which you understand the Revolutionary War and America at the time of the Constitutional Convention.

 

The quartet in Ellis’ book wanted to bring together the North and the South in a single nation, but the economies of both were moving in different directions, with the South becoming increasingly reliant on slaves for economic production (as a side note: a recent comment to my blog suggested that the North enabled slavery by purchasing slave produced products from the South – something I don’t know about but certainly seems likely). To have truly put an end to slavery in the newly independent America would have required a monarch (or tyrant) who could have stamped out the practice by force (something the colonies had just revolted against). Manumission, the process for freeing slaves was also expensive, often requiring that freed slaves be provisioned with enough resources to sustain themselves once free. It is no wonder that the forces of economic self-interest and a fear of tyranny forced an impasse between abolitionists and those whose future and society relied on slavery. A compromise on the issue appears to be absolutely necessary in order to bring the former Colonies together under a single government.

 

At the time our constitution was written, many delegates to the Constitutional Convention recognized the abhorrent evils of slavery. Ellis includes a notebook entry from John Dickinson, a delegate from Delaware who wrote about the compromise written into the new Constitution, “Acting before the World, what will be said of this new principle of founding a Right to govern Freemen on a power derived from Slaves. … The omitting of the WORD will be regarded as an Endeavor to conceal a principle of which we are ashamed.” The fact that slavery cut against Jefferson’s words in the Declaration of Independence was not lost on all of our founding fathers. Dickinson and others were aware of the contradiction between the words and principles of our revolution and the structure we built into the Constitution. The political dynamic that united our nation allowed for such evil to continue, but at the same time also provided a way for it to be dismantled. The unending debate in the United States will continue to grow as we debate the best way to interpret the inclusion of slavery in our constitution.

Slavery in the Constitution

The United States Constitution directly addresses slavery by apportioning slaves as counting as three fifths of a person for census counting purposes. The clauses containing slavery are some of the most disappointing aspects of our democracy, and are often viewed as a black eye on an otherwise shining document. People often say that slavery was misunderstood at the time of our nation’s founding and often try to justify slavery’s inclusion in the constitution by saying that it was commonplace at the time and not something we should judge our founding fathers against.

 

The reality is much more complicated. Many people, including many of our founding fathers understood that slavery was abhorrent and against the principles upon which the nation was founded. For example the Wikipedia page for Gouverneur Morris, the man who actually penned the constitution includes this quote from 1787, “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? … The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.”

 

At the time of the American Revolution, the economy of the Southern Colonies was dependent on slavery, and throughout history we have seen mankind fail to live up to ideals and moral principles in the face of economic threat. I believe it is fair to argue that ending slavery would have taken a king or absolute ruler given the economic incentives of the South. Joseph Ellis addresses this in his book The Quartet by writing about the decisions made around slavery during our nation’s founding. The following quote from Ellis describes a failed draft of a constitution drafted after the revolutionary war, before the adoption of the Articles of Confederation:

 

“Slavery was too volatile a subject to be addressed directly;  indeed, there was an unspoken policy of silence surrounding the topic based on the broadly shared sense that it, more than any other issue, possessed the potential to destroy the political consensus that had formed around independence.”

 

To tie the nation together and lay the ground for a United States that could grow and govern itself through democratic means, the founding fathers could not abolish slavery. A professor of mine once described slavery as a scaffolding built around the principles of the Constitution for construction purposes. After completion, slavery could be removed without damaging the foundation and simultaneously enhancing the beauty of the finished project. I think it is important to accept that slavery was understood to be evil and that South allowed economic interests to trump human morality. I think it is ok to address our founding fathers and be critical of the inclusion of slavery in the Constitution while at the same time understanding that it was in many ways necessary for building the nation we live in today. This is a tough thing to look at directly, but the lesson we can learn is that we are often held short of our moral best by economic and personal self-interest, and we should be honest with ourselves about the times we act in our self-interest and not in the interest of the group so that we can avoid the perils that the South made at the time of our founding.