13. Madison’s first submission appeared as Federalist 10
On November 22, 1787, Publius submitted Federalist 10 in The Daily Advertiser. It was the first of the Federalist papers to make its initial appearance in that newspaper. In the preceding essay, written by Hamilton, the dangers of factions to the nation were introduced. Madison expanded upon Hamilton’s arguments in Federalist 10. He described the emergence of factions as irretrievably linked to property. “Those who hold and those who are without property have ever formed distinct interests in society”. Madison wrote the causes of faction were innate to human nature, and thus the only means of preventing its damage to the nation and government were to control its effects. Eliminating factions was impossible, but limiting its damage imperative for a free nation to survive.
Madison argued that a large republic, with representative government, had a greater chance of survival than a confederation of small democracies. The anti-federalists disputed this notion, arguing that the diverse regional interests of the emerging nation could not possibly be governed equably by central authority. It was Madison’s Federalist 10 that explained the principle that the rights of the minority must be defended and protected by the majority, and that only the federal government created by the Constitution could ensure this. Otherwise, the states would be subject to the tyranny of a majority faction. Thus, certain liberties had to be restrained to limit the influence of factionalism. Federalist 10 serves as evidence that the Constitution was intended by its creators to avoid the emergence of partisan politics, though the seedlings of political parties were sown during its ratification debate.
14. Madison listened to the arguments of the anti-federalists and proposed corrections to the Constitution
Both Alexander Hamilton and James Madison initially opposed specifying individual rights within the Constitution. Madison believed that specifically citing some rights would lead to the exclusion of those not cited. During the debate over ratification, Madison applied the arguments of the anti-federalists to the proposed Constitution. While many he rejected out of hand, others he considered more carefully. During the debate, he drafted a series of corrective measures, seventeen in all, to address the issues raised by the anti-federalists. They were not proposed until after the Constitution had been ratified, and were not part of the Federalist Papers. Instead, the measures were proposed as amendments to the Constitution, the first ten comprising the Bill of Rights. Another, the second measure proposed by Madison, became law as the 27th Amendment in 1992.
One of the chief arguments of the anti-federalists during the ratification debate hinged on the perceived difficulty presented by amending the Constitution. Federalists argued that such difficulties were required in order to maintain a continuity of government. Otherwise, factions such as powerful banking interests could easily change the role of government at their whim. Yet Madison came to agree that flexibility was necessary for the government to adapt to changing society, as the nation expanded and grew in population. The debate over ratification and its impact on the thinking of James Madison, in particular, is clear in his role first opposing, then supporting, and finally authoring the Bill of Rights. Following ratification, Madison ran for the House of Representatives in Virginia. During his campaign, he promised to submit a Bill of Rights to Congress during his term.
15. Hamilton wrote an essay defining a “well-regulated militia” in Federalist 29
On January 9, 1788, Alexander Hamilton published Federalist 29, under the usual pseudonym of Publius. It appeared in The Independent Journal, and it was out of sequence. By then Federalist 36 had already appeared in print. Why Federalist 29 was out of sequence is unknown, but it dealt on a subject which had always been in the hands of the states, even when those states had been British colonies. Titled Concerning the Militia, Hamilton presented his thoughts about what a well-regulated militia should be. He argued for small, well-trained, militia units maintained by the individual states, but subject to the call of the other states when necessary. Such necessities could include insurrections, foreign attacks, and other crises of an undefined character. To Hamilton, a well-regulated militia included small uniformed units, with each state providing its own units.
“Little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of the year”, Hamilton wrote. Hamilton argued the state militias served as a check on government tyranny. The anti-federalists disagreed, arguing they could easily be used by the federal government to impose unwanted laws. Hamilton responded in writing, “Wherein in the name of common sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow citizens?” The term “well-regulated militia’ later appeared in the Second Amendment, as a prelude to the right to bear arms. It has been a point of contention between Second Amendment supporters and gun control activists for decades.
16. The ratification debate grew more rancorous even as states voted for the Constitution
By January 9, 1788, five states had ratified the Constitution; Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. Under the terms provided by the Confederation Congress when it submitted the document to the states, nine states were required for it to go into effect in those which had ratified. Notably absent states were in which the debate over ratification was loudest, Massachusetts, Virginia, and New York. Between January 11, 1788, and February 20, 1788, James Madison submitted 21 essays, explaining the Constitution, the government which it would create, and its relationship to the individual states, as well as the people. Following that impressive display of energy, Madison composed just two more essays, submitted on February 27 and March 1, 1788. By then, Massachusetts had joined in ratifying the Constitution, after its convention entered a compromise.
Massachusetts was evenly divided among Federalists and anti-federalists. Among the latter were two leaders of the Revolution, John Hancock and Samuel Adams. It was they who proposed a compromise which broke the deadlocked convention. They agreed to support ratification if the letter which announced the fact also included a recommendation to amend the Constitution to correct perceived deficiencies. The compromise included a promise of Federalist support for the recommendation. How much the Federalist Papers persuaded the Massachusetts leaders to give even grudging support for ratification has been debated ever since. Massachusetts made six, but the critical states of New York and Virginia, the homes of Hamilton and Madison respectively, remained openly opposed to the Constitution. Both states’ governors were strongly anti-federalist. Neither appeared open to compromise.
17. John Jay returned for one last essay, Federalist 64 in March 1788
Federalist 64 was published on March 5, 1788. The essay is one of just four which exist in the original, all of which are in Jay’s hand. In Federalist 64, Jay broke with his fellows regarding the role of the Senate in negotiating treaties. While most of the founders believed the Senate was responsible for that role, Jay argued the main power for foreign treaties sat with the Executive Branch, acting with the advice and consent of the Senate. That approval, under the Constitution, required two-thirds of the Senate supporting the treaty. Most interpreted the “advise and consent” entry to give the Senate the power to overturn treaties which did not meet its approval. Jay argued “advise and consent” gave the President leeway to decide when he needed its assistance in negotiating a treaty.
At the time it was written, Jay had more experience negotiating treaties than either Madison or Hamilton. He called on his experience, arguing the Senate represented the states and had less exposure to foreign affairs than the President. Over the course of American history, Presidents have come to rely on executive agreements between heads of state over treaties. Executive agreements allow the President to enter into foreign relationships without dealing with potential political difficulties in the Senate. The process developed early, and since the beginning of the 20th century, such agreements far outnumber formal treaties. Anti-federalists argued against Jay’s stance, and also opined the terms for the Senate, six years rather than a Representative’s two and the President’s four, were excessive. Jay disagreed, and defended the longer terms as essential for legislative experience.
18. New Hampshire became the ninth state to ratify the Constitution
On June 21, 1788, New Hampshire ratified the Constitution, meeting the nine states required for the document to become law. The Confederation Congress was established December 15, 1788, as the date federal elections would begin in the nine states, with the election continuing through January 10, 1789. The states were to elect Representatives to the house, and electors to vote for President and Vice-President. Senators were elected by state legislatures. Not until 1913 did American voters vote directly for their Senators, as the Constitution read, “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six years…” Each of the men composing essays as Publius supported such a composition of the Senate. All of them feared what some called “mob rule”, which would result from uninformed voters following factionalism.
The new government, under the Constitution, was scheduled to begin operating on March 4, 1789. But where it would be seated remained uncertain. New York had not ratified the Constitution, nor had Virginia. New York finally ratified the Constitution after weeks of contentious debate on July 26, 1788. Its ratification letter, (drafted by Jay and amended by Hamilton), called for the states to join in another convention for the purpose of amending the document it had just ratified. It listed 31 amendments, and 25 specifics to be included in a bill of rights. In the end, another convention proved unnecessary. Madison, elected to the House from Virginia (which ratified in June 1788) introduced amendments in Congress which led to the Bill of Rights during his first term. The government began operating on schedule, but with just eleven states in the Union.
19. The list of essays known as the Federalist Papers came to a close in August, 1788
Alexander Hamilton wrote the last of the Federalist Papers, publishing the 85th essay on August 13 and 18, 1788. In it, he admitted the Constitution, as already ratified by several states, was imperfect. Yet he argued that imperfection was not sufficient reason to delay adopting it as the basis for government. “I never expect to see a perfect work from imperfect man”, he wrote. He argued that in order to bind the mutual interests of the states, “compromise of the dissimilar interests and inclinations” was necessary. To Hamilton, no compromise offered perfection, writing, “How can perfection spring from such materials”. Hamilton argued that opposition to a strong national government arose from “powerful individuals” seeking to maintain their own regional power and influence. Much of Hamilton’s essay attacked the leaders of the anti-federalist faction in New York, where the ratification debate had been particularly bitter.
Even before the Federalist Papers had been completed, copies of those already published had been gathered and bound in volumes. How widely they were disseminated during the ratification debates in several states is unknown. Surely Madison made certain they were available in Virginia, his home state, and they were published in New York. Yet those states were among the last to ratify, and both did so conditionally upon the enactment of a Bill of Rights, among other changes to the document. Rhode Island and North Carolina did not ratify the Constitution until after the first Washington administration was inaugurated. Both demanded changes to the document in their letters notifying Congress of their ratification. In 1791, Vermont formed a convention and ratified the Constitution, becoming the first state outside of the original 13 to join the Union.
20. The three men who wrote as Publius remained active in the new government
James Madison served four consecutive terms in the House, as Secretary of State under Thomas Jefferson, and as the fourth President of the United States. He came to be widely regarded as the Father of the Constitution and the Bill of Rights. Alexander Hamilton served as Washington’s first Secretary of the Treasury. His efforts helped place the United States under a stable financial system. He also made numerous political enemies, became embroiled in scandals, and eventually died following a duel with the then sitting Vice-President, Aaron Burr. John Jay served as the first Chief Justice of the Supreme Court, and later as Governor of New York. In 1795 he negotiated the Jay Treaty, which gave the United States “most favored nation” status in trade with Great Britain but failed to address American grievances. The treaty helped create party factionalism within the new government.
How much the Federalist Papers contributed to ratification remains controversial. But there is no question they contributed to the creation of political parties by publicizing the rift between the Federalists and anti-federalists. The latter morphed into the Democratic-Republican party, led by Jefferson and Madison. The former became the Federalist Party of Hamilton, Jay, and John Adams. Federalists influenced the form of the Supreme Court for the next thirty years, through John Jay and later John Marshall. George Washington despaired of the formation of partisan political parties in American government, and famously warned against them, to no avail. The Federalist Papers, though relatively obscure, continue to affect American government, used by judges and legislators to determine the intent of the Founders when interpreting the Constitution they were written to support. As of 2000, the Supreme Court has cited the essays by Madison, Hamilton, and Jay, in 291 legal decisions.
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