Tag Archives: Federalist Papers

FROM DEMAGOGUE TO TYRANT

“Think of your forefathers!  Think of your posterity!”–John Quincy Adams

constitution

” To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and by the bitterness of their invectives.”

I’ve been thinking about these words from Alexander Hamilton quite a lot this election season.  He was referring to the angry debate over the newly proposed Constitution, but in many ways his description of the political climate in 1787 sounds a lot  like 2016.  Indeed, the quote above, originally published in a New York newspaper over the pseudonym “Publius,” could come straight out of the op-ed section of one of today’s newspapers, except for the fact that columnists can’t use words like “declamation” and “invective” any more and hope to be understood.

In the same essay (which we now remember as Federalist #1), Hamilton went on to sound a word of warning that I also keep thinking about during this bizarre presidential campaign:

. . . a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.  History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.”

HOW JAMES MADISON AND ALEXANDER HAMILTON WOULD COUNSEL REPUBLICAN CONVENTION DELEGATES

No one can know for sure how the country’s Founders would advise the delegates to this week’s Republican National Convention, but it seems likely that they would have little patience with the common claim that it would be unethical to disregard the wishes of primary voters if the delegates were convinced that the people’s preference was ill advised.  In general, the framers of the Constitution expected that occasions would arise when it was necessary for elected officials to stand against their constituents; indeed, the willingness to do so was a litmus test of genuine virtue.  Here are just a couple of example of such belief, drawn from the contemporary commentary on the Constitution called the Federalist Papers, a series of 85 essays penned in 1787-1788 by Alexander Hamilton, James Madison, and John Jay:

From James Madison, Federalist no. 63:

James Madison

James Madison

” As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.  In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”

From Alexander Hamilton, Federalist no. 71:

Alexander Hamilton

Alexander Hamilton

“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. . . .  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.”

Neither Madison nor Hamilton was writing with a party nominating convention in mind, of course, but the underlying principle that animated their observations seems pertinent to this week’s doings in Cleveland.  When a public official is convinced that a popular preference would be disastrous for the nation, there is nothing noble or admirable about yielding to that preference in the name of “duty,” and the GOP shouldn’t have to invent a “conscience clause” to make that apparent.

US-VOTE-REPUBLICANS-CONVENTION

“COMMENCING DEMAGOGUES AND ENDING TYRANTS . . .”

“Think of your forefathers!  Think of your posterity!”–John Quincy Adams

constitution

” To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and by the bitterness of their invectives.”

I’ve been thinking about these words from Alexander Hamilton quite a lot this election season.  He was referring to the angry debate over the newly proposed Constitution, but in many ways his description of the political climate in 1787 sounds a lot  like 2016.  Indeed, the quote above, originally published in a New York newspaper over the pseudonym “Publius,” could come straight out of the op-ed section of one of today’s newspapers, except for the fact that columnists can’t use words like “declamation” and “invective” any more and hope to be understood.

In the same essay (which we now remember as Federalist #1), Hamilton went on to sound a word of warning that I also keep thinking about during this bizarre presidential campaign:

. . . a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.  History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.”

Your thoughts?

SHOULD THE AMERICAN PEOPLE HAVE A SAY IN THE SUPREME COURT’S DIRECTION?

“Think of your forefathers!  Think of your posterity!”—John Quincy Adams

constitution

I have a hard time taking seriously Democratic appeals to the Constitution as they insist that Senate Republicans act promptly on President Obama’s nomination of Merrick Garland to the Supreme Court.  Most Democrats long ago embraced a role for the Court that the Framers of the Constitution could have scarcely imagined.  It seems more than a little opportunistic to rediscover the authority of original intent now that it suits their purposes.  As I noted in a previous post, the Founders described the judicial branch in terms of its essential “feebleness.”  The Court could never be a threat to the rights of the people, Alexander Hamilton insisted in Federalist no. 78, because under the Constitution the Court possessed “neither FORCE nor WILL but merely judgment.”  The Framers would be stunned to see the power that the Court wields today.

And yet they would be equally mystified by Republicans who insist that public opinion should play an important role in shaping the composition of the Court.  In arguing to postpone consideration of Obama nominee Merrick Garland, for example, Senate majority leader Mitch McConnell observes that “of course the American people should have a say in the Court’s direction.”  That subterranean rumbling you may have noticed afterward came from the Founders collectively turning over in their graves.

The Framers’ vision for the proper place of public opinion in a free government is easy to caricature because it is complicated.  In their reading of human nature, it was just as fallacious to assume “universal venality” (i.e., moral corruption) as to assume “universal rectitude,” to use Hamilton’s terminology.  They believed that there was enough “honor and virtue among mankind” to justify an experiment in republican government grounded in the consent of the governed.  But they also knew that there was enough “folly and wickedness” in human nature to make such a government perpetually susceptible to tyranny and injustice.  And so they sought to ensure a degree of popular involvement in the new government while protecting it from undue popular pressure.

Remember how federal officeholders were originally to be selected: Only members of the House of Representatives would owe their appointment to the direct election of the people.  According to James Madison in Federalist no. 52, this meant that the House, unique among the components of the new government, would have “an immediate dependence on, and an intimate sympathy with, the people.”  But even then, “the people” who would so influence the Representatives comprised a severely truncated shell of today’s electorate.  The Framers did not specify who should be eligible to vote, except to stipulate that the states should apply the same criteria for federal elections as they did for the houses of representatives in their own state legislatures.  Based on state voting laws as they currently existed, the Framers could expect that members of the U. S. House of Representatives would be chosen by the votes of adult white male landowners.  (Depending on the state, the property requirement for voting regularly disqualified from one-third to two-thirds of adult white males.)

So much for the government’s “popular branch.”  The members of the more august Senate would be selected, not by the people directly, but by the state legislatures. To buffer the Senate further against popular pressures, only one-third of Senate seats would be open in any given election year.  These features would make the Senate less susceptible to “the impulse of sudden and violent passions,” as Madison put it.  More removed from “the people,” the upper chamber would function as an “anchor against popular fluctuations.”  “I shall not scruple to add,” Madison further noted, that the Senate “may be sometimes necessary as a defense to the people against their own temporary errors and delusions.”

Less “popular” still would be the executive under the new Constitution.  We sometimes forget that the Articles of Confederation didn’t include an executive branch at all, and so the Constitution’s framers were in uncharted territory as they sought to define the role of a “president” of the United States.  Andrew Jackson would later redefine the office of president as the most uniquely democratic element of the federal government.  This was true, he contended, because the president alone among all federal officeholders was chosen by the entire country.

But Jackson, keep in mind, made a practice of inverting the vision of the Framers while claiming to uphold it.  In reality, the Framers went to great lengths to isolate the executive from popular pressure.  They anticipated that, in most election years, the president would actually be chosen in a run-off in the House of Representatives where each state delegation would cast one vote.  The congressmen would be choosing from among the five individuals who had received the most votes by “electors” from each state.  (These are the members of our so-called electoral college.  The Constitution does nothing to tie the selection of electors to the vote of the people, but leaves the manner of choosing them to each state legislature.  For the next generation, at least, upwards of two-thirds were appointed by the state legislatures, not elected by “the people.”)

By protecting the executive from direct popular pressures, the Framers hoped that the executive would be able to perform his duties more effectively, always sensitive to the public welfare but never captive to the passions of the people.  Alexander Hamilton developed the point at length in Federalist no. 71:

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 entrust 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.

Which brings us to the judicial branch.  According to Mitch McConnell, it’s self-evident that “the American people should have a say in the Court’s direction.”  He may be right.  Given the inordinate power that the Court wields today, he probably is right.  I would just like to hear this prominent conservative leader tell his constituents that none of the Framers whom he claims to venerate would agree with him.

Just think for a minute about how the Framers of the Constitution expected the members of the Supreme Court to be chosen: Supreme Court justices were to be appointed for life by the president of the United States, who in turn was to be elected by the House of Representatives, who would choose the president from a group of finalists identified by electors, who in turn were appointed by the state legislatures, who for their part were elected by adult, white, male, property-holding voters.  Whatever you or I or Mitch McConnell may think, the Framers certainly didn’t believe that “the people” should “have a say in the Court’s direction.”

So what do we do with this information? I’m far from suggesting that we simply ask WWFD—What Would the Founders Do?—and then go and do likewise.  Figures from the past have no authority over us, and figuring out what the Founders would think about contemporary politics settles nothing.  But following John Quincy Adams, I think there’s more than a little wisdom in situating our contemporary debates within the larger conversations across time of which they are but a part.  While we shouldn’t be slavishly submissive to the values of the Framers, neither should we be cavalierly dismissive.  In Christian terms, the former is idolatry, the latter is arrogance.  We avoid both these extremes when we assess their views critically but respectfully, grappling with them as we seek to clarify and justify our own positions.

The Framers’ determination to shield federal officeholders from undue popular pressure stemmed logically from a skeptical view of human nature that few twenty-first century Americans share.  Nearly two centuries have passed since Alexis de Tocqueville noted wryly that the American people “live in the perpetual utterance of self-applause.”  Most Americans—including most American Christians—now reflexively view human nature as essentially good and the wishes of the majority as essentially just.  It might not be a bad thing if we reevaluated that popular prejudice in the light of Scripture.

But whatever your view of human nature, we might at least concede that there is a consistency and symmetry in the Framers’ efforts to shield the judiciary from popular opinion.  In Federalist no. 52, James Madison explained the overall structure of the proposed government with reference to the maxim that “the greater the power is, the shorter ought to be its duration.”  Because the House of Representatives would be Constitutionally charged with the responsibility of initiating all revenue measures, it was right and proper that representatives have the shortest terms of office and be most immediately responsive to “the people.”  Terms of office would increase in length as the power of the office declined.  Congressmen would serve for two years, presidents for four, senators for six . . . and Supreme Court justices for life.

That the Framers would allow such dramatically longer terms for Supreme Court justices makes sense only in light of their belief that the Court would exercise dramatically less influence on the life of the nation than it now does.  If Mitch McConnell is right, and we now need to disregard the Framers’ goal of protecting the Court from public opinion, he is right because we have long since abandoned the Framers’ vision of a “feeble” judiciary with “neither FORCE nor WILL but merely judgment.”

“NEITHER FORCE NOR WILL”: ALEXANDER HAMILTON ON THE SUPREME COURT

              Think of your forefathers!  Think of your posterity!                      —John Quincy Adams—

constitution

As if things weren’t bad enough in this interminable election cycle, the recent death of Supreme Court justice Antonin Scalia has added to the partisan posturing plaguing the nation.  With righteous indignation, Senate Republican leaders avow never to consider a replacement until after the coming election on the grounds that, to quote majority leader Mitch McConnell, “the American people should have a say in the Court’s direction.”  With righteous indignation, White House spokesmen present President Obama as a strict constitutionalist who is bound by his sworn oath to the law of the land to act immediately to fill the vacancy.

Let me be honest: I’m skeptical of both claims.  They strike me as equally self-interested and disingenuous.  But I’ve never wanted to make this blog overtly political, and the point of this series on the 2016 election is not to take sides but to put it in historical perspective.  Americans in 2016 are engaged in an ongoing debate about the role of government in a free society that began long before any of us arrived on the scene.  Why wouldn’t we want to learn from that conversation?  With John Quincy Adams, I think that listening to our ancestors is one of the best things we can do to serve our posterity.

Let’s start with Democratic appeals to the Constitution to arguing that President Obama was obligated to nominate a successor immediately.  It’s worth pointing out that the Constitution says almost nothing about the nomination process.  The Framers devoted a total of twenty words to the subject, and nearly half of them are and, of, by, or the.  Buried in a portion of a single sentence in Art. II, sect. 2, we read that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.”  Not a lot to go on there.

Imagine for a moment the following scenario: President Obama holds a press conference and announces, “Given that my party has lost control of both houses of Congress, and that Constitutionally any nomination that I might make requires the Senate’s approval, it makes sense to forego a nomination at this time and allow my successor to act.”  Would that be unconstitutional?  I don’t think so.  It might be politically irresponsible—not to mention utterly inconceivable—but it would be hard to twist it into a palpable violation of the Constitution, even if it meant postponing Scalia’s replacement an entire year.  The Constitution only requires that the legislative branch meet once a year, for goodness sake, and through the end of the nineteenth century Congress was in adjournment for nine months in every odd-numbered year, so the possibility that a seat could remain vacant for an extended period was ever present.

But my objection runs deeper than this.  Democratic appeals to the Constitution on the issue ring hollow because most Democrats long ago embraced a role for the Supreme Court that the Framers of the Constitution could have scarcely imagined.  In their essays promoting ratification, both James Madison and Alexander Hamilton insisted that the proposed Supreme Court would have the right and the responsibility to rule on the constitutionality of federal and state laws.  At the same time, however, they went out of their way to assure critics that the Court’s powers, though important, were limited.

Alexander Hamilton

Alexander Hamilton

Of the eighty-five essays in the Federalist Papers, only six focus on the judiciary (nos. 78-83), all of them written by Hamilton.  The New Yorker wrote to refute Anti-Federalist charges that the Framers at Philadelphia had created a monster that would run rough-shod over the prerogatives of the states and the liberties of the people.  In Federalist no. 78, for example, Hamilton led with the reminder that “the judiciary is beyond comparison the weakest of the three departments of power.”  Hear how he explains “the natural feebleness of the judiciary”:

 . . . 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.

In Federalist no. 81 Hamilton again sought to reassure his readers.  He acknowledged the popular fear that the Court would abuse its prerogatives to usurp the power of the legislature.  According to critics, the justices would be free to evaluate laws according to “the spirit of the Constitution,” rather than the strict letter of the document.  This in turn would enable the Court to mold the laws “into whatever shape it may think proper; especially as its decision will not be in any manner subject to the revision or correction of the legislative body.”

This “supposed danger . . . is in reality a phantom,” Hamilton insisted.  And why was this?  Because “there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.”

Bottom line: In 1787 the Framers of the Constitution believed that the Supreme Court would have “neither force nor will” and that “the general liberty of the people can never be endangered from that quarter.”  Does anyone believe this in 2016?

In my next post I’ll share what the Founders would have thought of the Republican claim that “the people” should influence the make-up of the Court.

WORDS FROM THE PAST: JAMES MADISON ON THE ROLE OF ELECTED LEADERS

“Think of your forefathers! Think of your posterity!”

The former president (and now U. S. congressman) John Quincy Adams made this impassioned plea at the conclusion of an antislavery speech late in 1844 as the U. S. Congress considered the annexation of Texas.  As he shared with his constituents his fears that the annexation of Texas would enlarge the empire of slavery, Adams exhorted them to consider their ancestors as well as their descendants in deciding how to respond to the political turmoil of their day.  It was good advice then, and it’s good advice now, which is why I’ve promised to share words from the past from time to time that might be relevant as we make sense of this year’s contentious presidential campaign.

James Madison

James Madison

Here then, is another favorite passage from the Federalist Papers, that compilation of eighty-five essays that Alexander Hamilton and James Madison (with the brief assistance of John Jay) wrote in defense of the newly-proposed Constitution.  It’s taken from Federalist no. 63 and comes from the pen of James Madison, the slight Virginian often remembered as the “father” of the Constitution.  In context, Madison was making a case for the proposed structure of the U. S. Senate.  In the passage below he makes no bones about the role that he hoped the Senate would play:

I shall not scruple to add that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?

To understand what Madison is saying here, we need a sense of his view of human nature.  Madison, like the Founders generally, thought that men and women were guided by three different faculties.  The rarest was reason, a logical quality of mind that points reliably toward virtuous decisions that promote the general welfare of the larger society.  More common was what he called interest, which is essentially the rational calculation of individual self-interest.  Most common, and most dangerous, was passion, an irrational faculty dominated by prejudice and emotion.

To oversimplify, reason rationally promotes the common good, interest rationally promotes individual self-interest, and passion may irrationally (if unintentionally) undermine both.  Because the majority would not always be guided by reason, the role of the Senate would sometimes be to counter popular passions.

Bottom line: In Madison’s view, the role of the responsible government leader was typically to moderate popular passions, not inflame them.

 

“OFFERED IN A SPIRIT WHICH WILL NOT DISGRACE THE CAUSE OF TRUTH”

At its best, historian David Harlan tells us, history can be “a conversation with the dead about what we should value and how we should live.” The bad news is that most of us live our lives “stranded in the present,” to quote historian Margaret Bendroth.  What is worse, we like it that way.

I’ve been thinking of this a lot as our already interminable presidential campaign season proceeds.  A lot of politically active Americans claim to venerate our nation’s past, but I see almost no evidence that anyone’s listening to our ancestors.

At the end of an impassioned speech against the expansion of slavery, former president John Quincy Adams punctuated his appeal to the nation’s conscience with a fervent cry:

“Think of your forefathers! Think of your posterity!”

I love Adams’s exhortation on multiple levels.  It exposes our relentless present-mindedness and individualism and calls us to a new kind of connectedness that transcends generations as well as geography.  Adams reminds us that we live in the flow of time, part of a larger story that began before we were born and will continue long after we die.

Adams’s exhortation is also a call to humility.  There is an arrogance to present-mindedness that C. S. Lewis rightly labeled “chronological snobbery.”  By challenging us to recognize an obligation to our forefathers as well as our posterity, Adams is telling us (among other things) to open our eyes and get over ourselves.  Stop patting the past on the head and be open to the possibility that we need to learn from it instead.

Finally, I find that Adams’s words perfectly capture my understanding of the value of history: we study the past to live more wisely in the future.  And this means that we cannot begin to honor our obligation to our descendants until we learn to listen more closely to our ancestors.

In the spirit of Adams’s plea, from time to time between now and election day, I think I’ll share quotes from our past worth chewing on during this contentious political season. My goal is not to be overtly partisan, and you can make of them what you will.

Let’s start with a quote from the Federalist Papers, a series of eighty-five essays penned primarily by Alexander Hamilton and James Madison in 1787 and 1788 to rally support for the newly proposed Constitution.   The Federalist Papers are not an infallible source of wisdom, but they’re one of the best windows that we have into the values of the original framers of our Constitutional system.

Alexander Hamilton sat for this portrait by John Trumbull in 1792.

Alexander Hamilton sat for this portrait by John Trumbull in 1792.

The quote below appeared in the very first number of the Federalist.  Knowing that the supporters of the Constitution faced an uphill battle, Alexander Hamilton hit the ground running.  He dashed off Federalist no. 1 within a couple of weeks of the adjournment of the Constitutional Convention at Philadelphia.  The debate would be fierce, Hamilton knew,  and the stakes would be high.  The future–even the very existence–of the infant United States hung in the balance.  And precisely because the stakes were high, Hamilton knew full well that “a torrent of angry and malignant passions will be let loose.”  Hear then, how he cautioned his audience:

We, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.

In sum, Hamilton was conceding at the outset that there would be intelligent and honorable individuals on both sides of the coming debate.  And what is more, some on the “right side” would have dishonorable motives.  This is a far cry from business as usual in 2016, isn’t it, where presidential candidates  denounce one another as “liars” and “con artists” and train their followers to see the opposition as either malevolent or stupid.

Hamilton went on to predict that partisan firebrands would strive to prove “the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”  Sound familiar to anyone?

But it doesn’t have to be this way.  Over the next seven months, Hamilton and Madison wrote some 175,000 words about the proposed Constitution.  Together, they crafted a reasoned argument aimed at a reasonable audience about how to perpetuate liberty and justice under a representative form of government.  In concluding the opening essay, Hamilton laid out the approach that the authors would follow throughout:

My arguments will be open to all and may be judged of by all.  They shall at least be offered in a spirit which will not disgrace the cause of truth.

Sounds like an approach worth recapturing.