Alexander Hamilton probably wanted Hillary Clinton to win.

In response to my complaints that Hillary won the popular vote even while losing the Electoral College, my friends who are (ahem) perhaps more faithful to the Constitution as written point out — correctly — that the Constitution has a number of “countermajoritarian” features, that the American government was designed as a republic instead of a straight democracy in order to ensure the majority couldn’t tyrannize the minority.

In fact, they say, the Electoral College is an important one of these countermajoritarian features because it gives individual states more of a role in selecting the executive, instead of leaving it a straight-up popularity contest.

There’s pretty strong evidence, though, the Founders didn’t intend the popular vote losers to regularly win office. One feature of the old — failed — Articles of Confederation  is required a supermajority (nine of the 13 states) to pass legislation. Which meant a single state, or a small minority of states, could muck things up.

That requirement appears nowhere in the Constitution. And the authors of that Constitution resisted calls to give each state the exact same representation in Congress because they thought such a move would be too countermajoritarian. Here’s Alexander Hamilton, writing in Federalist No. 22:

Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller.

Which, ahem:

This election was not precisely what Hamilton was writing about. But jeepers, it’s kind of on point, no? The Founders were countermajoritarian, perhaps, but not that countermajoritarian. In fact, they saw some danger to the republic in such features.

Similarly, James Madison wrote in Federalist 58, warning against a requirement that Congress need a quorum to pass laws — saying it gave the minority too much power over the majority. And at the end of the day, the majority is supposed to win, right?

Why wouldn’t we apply this logic to the presidential election?

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

You may point out that Hillary, while winning a greater number of popular votes, did not win a majority. I say fine! Let’s dump Gary Johnson and Jill Stein from the ballot and have a runoff election!

Or there are other answers. “Countermajoritarian” features have their place in our governance, but it’s a limited place. If a minority of voters can routinely win the presidential election, trouble is probably stewing. I’ll get in trouble with my conservative friends for saying this, but the Constitution, as it currently works, is clearly defective. Let’s fix it.

Federalist 58: Filibusters suck

It's true that when America adopted its Constitution, the Founders who wrote the Federalist Papers didn't put much—any—effort into defending the filibuster tactic that is so widely used in today's Senate. Why? Well, the Constitution itself didn't mention the filibuster: That's something the Senate decided, on its own, to allow in the rules.

Still, while reading Federalist 58, it's pretty easy to see what the Founders would've thought about the filibuster: They wouldn't have liked it. We can surmise as much when James Madison grapples with whether the Constitution should've required much more than a quorum for the House of Representatives to vote on weighty matters. Madison didn't like the burden that would create. Why? It would enable a minority of Congressmen to block legislation simply by not showing up:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

Some of my conservative friends defend the filibuster as a minority legislative defense against the tyranny of the majority. But it's pretty clear the Founders—or at least Madison—weren't interested in giving the minority the power to block legislation, seeing it as a reversal of "the fundamental principle of free government."

Combine this with Federalist 22, in which Alexander Hamilton railed against the idea that two-thirds of Americans would "submit their interests to the management and disposal of one third"—roughly the ratio needed for the Senate to sustain a filibuster—and it's sure seems clear the practice is both undemocratic and a betrayal of the Founders' vision.

A conservative friend says I may modify my position on this when I read further into the Federalists. Right now, though, the filibuster isn't really faring well.

Federalist 54, slavery, and 'The 1 Percent'

Like a lot of liberals, when I think about the Constitution's original provision that counted slaves as three-fifths of a person for the purpose of apportioning representation in Congress, I often think about it in racial terms: They were literally saying that black people were less than fully human! Sometimes I think about it in political terms: Southern politicians were accruing power—and thus preserving slavery—by giving slaves any human weight at all. But I don't often think about it in economic terms.

Federalist 54 changes that for me. This is the paper in which James Madison must justify the three-fifths apportionment to the people of New York. And his primary justification is this: Slaves are a form of wealth. And wealth deserves a little extra representation in the halls of government.

No really. This is what Madison writes:

"After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands.

"For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation."

Basically: Rich men have disproportionate influence on selecting representatives in government—more because of their awesomeness than because they purchase it seems—and so should rich states. That's why it's fair to (mostly) count slaves when determining a state's representation in the House of Representatives.

The logic, as Madison admits, is "a little strained." If wealth determines representation, then why not make a tally of all the assets within a state and determine representation accordingly? The answer, it appears, is that slaves can be punished for committing crimes—that separates them from mere livestock, and, well, it all gets very depressing to read and think about.

But Federalist 54 is interesting in light of the recent "Occupy Wall Street" protests. At the heart of the demonstrations, I believe, is a belief that every citizen should have roughly equal representation in the federal government—the anger against "The 1 Percent" is anger not just that rich people are getting richer much faster than the rest of us, but that they have disproportionate influence with our government to bend policies to their will. To the protesters, that seems undemocratic—a betrayal of the American promise.

If we're to take Madison at his word, though, the problem is actually pretty foundational: The idea that wealth deserves more say in the halls of our democratic government seems at odds with the "one person, one vote" ideals we're usually taught, but it's baked into our government's DNA, part of the founding documents. 

Federalist 40: A Strict Reading of the Rules

In the tradition of James Madison?

The men who created the Constitution didn't gather at Philadelphia with the purpose of creating a constitution, actually. They were there to try to fix the old constitution, the Articles of Confederation, that bound the United States together loosely but imperfectly. This was their commission:

"Resolved -- That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."

But the men who gathered at Philadelphia didn't actually do the specific job they were given. Rather than fiddle around trying to fix the (apparently) unfixable Articles of Confederation, they more or less ripped up the document and started over with a blank piece of paper. And it's important to consider that act, very carefully, because what it means is this:

The Constitution was created because the Founders decided not to be "strict constructionists" about the rules they were given. Instead, they decided to act in the spirit of their commission, for the good of their country. The Constitution -- and the country -- we have is the result of their expansive reading of a plainspoken document.

Seems to me that this fact should have some bearing on how we decide to read the rules the Founders gave to us. Do we rely on a strict or originalist reading of the Constitution and bind ourselves very tightly to the vision of men who died more than two centuries ago? Or do we act in what we perceive to be the spirit of that document, allowing the government some leeway in acting for the collective good? And if we do that, where can we say the line is drawn, where the government has gone beyond the bounds a free people should allow it? Tough questions, often treated simply. But the experience of the Founders suggests, really, that there isn't a simple answer.

Federalist 39: James Madison's Confusing Sales Job

Read all entries in my series on The Federalist Papers here.

Well. No wonder we're so confused.

My writing partner Ben Boychuk and I had the pleasure of interviewing author Ron Chernow this week. He wrote the acclaimed new biography of George Washington, along with an earlier bio of Alexander Hamilton -- he knows something, in other words, about the founding of this country. In our discussion, Chernow repeated his assertion (first made in a New York Times op-ed) that today's Tea Partiers are wrong to claim an exclusive ideological heritage descended from the Founders. In truth, Chernow said, the Constitution was a compromise between competing visions of government -- powerful or limited? Instead of actually settling the question, the Founders fudged it a bit, so that the arguments of the 21st century aren't so different from the 18th.

Nowhere is that tension more evident, perhaps, than in James Madison's authorship of Federalist 39. Madison's intent here is to fend off criticism of the proposed new government as insufficiently federal -- that is, he's arguing against the proposition that the Constitution takes away too much power away from the states and deposits it in the national government.

Wait: That's kind of what the Constitution was created to do. The Articles of Confederation, which gave pride of power to the states, had already proved unworkable as a means of national government. But yesterday's antifederalists, like today's Tea Partiers, wanted to see more power left to the states -- and they were ruthless in suggesting that advocates of the Constitution were lying in their efforts to convince Americans that states still retained considerable power. Here's "A Farmer" writing in Antifederalist No. 3:

There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution. This abuse of language does not help the cause; every degree of imposition serves only to irritate, but can never convince. They are national men, and their opponents, or at least a great majority of them, are federal, in the only true and strict sense of the word.

Madison has tricky political ground to cover here, then, and he treads cautiously and confusingly. Let's jump to the final paragraph of 39 for a picture of the ambiguity.

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Got that?

Now it's true that something can be partly one thing and partly another. But this paragraph -- and the whole paper -- makes me wonder if the effort to sell the Constitution as a document of "limited" government is more a political sales job than a substantive description.

The new government, after all, will have unlimited power of taxation. It will be the arbiter of disputes between the states. It alone has the power to raise a standing army. The one power the states seem to retain over the national government at this stage is whether or not to opt-in to the system. After that, they can shape it somewhat -- through electoral votes and appointments to the Senate -- but there are no real veto points once the national government has made up its mind about a course of action. The states can give legitimacy to the national government; there's no real mechanism for them to withdraw it.

That's not to say the national government has unlimited power overall. It has its spheres of influence, and the states have theirs.

In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

But the national government's spheres of action are biggies. That's why the antifederalists fought the Constitution.

I'm not arguing for all this as a brief for unlimited central government, incidentally. I'm rather haphazardly trying to make sense of this as a pitch at the time, and looking at it in light of what actually happened in America's history. And what I'm seeing here is this: James Madison, whether he wanted to or not, left the door open to a bigger government than what today's Tea Partiers want -- or perhaps he himself envisioned.

How wide? I suspect we'll find that out in the coming papers.

Federalist 37-38: Making Government Is Hard! (A Two-Part Blog That Includes Supreme Court Musings)

James Madison is sure a whiny sonofabitch.

Sorry. That's crass and vulgar, not at all in keeping with the high-minded aspirations of this project of reading all the way through The Federalist Papers, which is the Founding Fathers' gift to us, the best explanation we have on hand of why they did what they did in crafting the Constitution of the United States.

But in Federalist 37 and 38, we're reminded that the Founders weren't actually demigods who met at a modern Mount Olympus and received the text as a gift from some even higher power. (Not that Madison and others weren't interested in promoting that storyline: "It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.") They were politicians, really, and very human. And like all humans who have worked really hard on a project, they got irritated at the challenges put forth to the work they'd done.

Federalist 30-36: This Government Was Made For Taxin'. And That's Just What It'll Do.

The farther I read into the Federalist Papers, the more I'm convinced the Tea Partiers only know about half their history.

Back up: I didn't start reading the Federalists with the aim of debunking the Tea Partiers. But it's impossible to read historical documents about the nature of governance in America when there's a coalition of folks out there who so strongly identify with those historical personages.

Their narrative, I believe, goes something like this: America was born, essentially, in a tax rebellion. And the Founding Fathers then created a limited government in order to avoid oppressing the people either with burdensome taxes or directly tyrannical rule. And maybe, just maybe, if the tax burden gets too large -- well, maybe, Americans have the right to resort to rebellion again.

Like I said: I think that's only partly right. Because the Federalist Papers -- the documents we most use, aside from the Constitution itself, for insight into the Founders' thinking -- seem to favor a rather more expansive vision of government than the Tea Party narrative would suggest.

I already mentioned this theory back in Federalist 15. But it's' greatly reinforced by reading Alexander Hamilton in Federalist 30 through 36.

Why? Because those chapters are about the topic nearest and dearest to the hearts of Tea Partiers: Taxation.

And get this: Hamilton was arguing that the power to tax was a central reason -- maybe the central reason -- the Constitution needed to be passed. And not just any power to tax: Unlimited power to tax.

This kind of goes against the narrative we hear lately, but there it is in Hamilton's own words: Without unlimited power to tax, the government will be a weak and ineffective thing.

How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?

Now, Hamilton was speaking from some experience here: A reason the Articles of Confederation were considered to have failed was that the Congress under the articles couldn't raise its own money -- it had to ask the states, essentially. And the states weren't always forthcoming. That left the United States unable to expeditiously pay its debts from the Revolutionary War.

Here's where honesty compels me to note, though, that Hamilton's call for unlimited power of taxation -- and I'm serious here: he wanted it to be unlimited -- didn't seem to be in the service of creating a welfare state, but rather to pay for the common defense. (Federalist 34: "The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.")

But unlimited power is, of course, unlimited power. And that's what Hamilton was arguing for. Here he is in Federalist 31:

As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.

As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

This, of course, was horrifying to the antifederalists. And -- not to drive the point home with too much earnestness -- it was horrifying to them in a way that today's Tea Partiers would find very familiar. Here's "Brutus" writing in Antifederalist 32:

We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States, Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens a door to the appointment of a swarm of revenue and excise collectors to prey upon the honest and industrious part of the community, [and] eat up their substance. . . .

If you're a Tea Partier, that sounds like a fairly accurate description of what happened, I suppose.

But the antifederalists were wrong, to some extent. They were concerned, it seems, with preserving a fair measure of state sovereignty -- "state's rights" you might say -- and their biggest worry about the Constitution's grant of unlimited power to tax was that it would, over time, deprive the states of their power to tax. It hasn't really worked out that way.

In the end, Hamilton rejected every suggested limitation to restrict Congress' power to tax. The only real check, he suggested, was the voters themselves -- and their ability to send to Congress wise people who would understand how to balance the needs of government against the income of its citizens.

There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

Two-hundred years later, the only question I can ask is: How's that working out for ya?

Federalist 23-29: Freedom, and the national security state

Find all my Federalist Papers blog posts here.

There's a conservative narrative of the last 100 years or so that goes something like this: America started to become a little less free -- a little less tethered to its Constitution -- about the time that Franklin D. Roosevelt took power during the Great Depression and started creating the welfare state. Every new entitlement -- "ObamaCare," say -- and every slight tax increase represents a near-tyrannical intrusion of the state into realms that should be private. Every time a Medicare check goes out, then, freedom dies a little more and somewhere in the great beyond, Friedrich Hayek sheds a tear. Or maybe Ayn Rand.

There's an alternative narrative -- one that doesn't get as much attention -- and in the last year it's been most famously advanced by onetime conservative author Garry Wills. In this reading of history, it was indeed Franklin D. Roosevelt who expanded the state at the expense of the individual -- but it wasn't Social Security that represented tyranny: It was the explosive growth of the national security state, which since World War II has granted the president ever greater -- and, seemingly, ever-more-uncheckable -- power, all in the name of protecting America from her enemies.

Which brings us back to 200 years ago, and the adoption of the Constitution. Its passage, it seems, was no sure thing, and the central issue in the debate between Federalists and Antifederalists, it seems, was freedom: What form of government would be effective, yet still allow men -- and it was men who had the freedom -- the latitude to live their lives as they pleased?

There's not much in either the Federalist or the Antifederalist papers to suggest that the welfare state was a concern in the debate over freedom. To be fair, partisans on both sides probably hadn't conceived of it. Instead, they clashed over a controversial power of the new goverment: The power to raise a standing army.

"Brutus" writing in Antifederalist 24, made the case plain:

. . . . Standing armies are dangerous to the liberties of a people. . . . [If] necessary, the truth of the position might be confirmed by the history of almost every nation in the world. A cloud of the most illustrious patriots of every age and country, where freedom has been enjoyed, might be adduced as witnesses in support of the sentiment. But I presume it would be useless, to enter into a labored argument, to prove to the people of America, a position which has so long and so generally been received by them as a kind of axiom.

This, it seems, was an argument the Federalists took seriously. Alexander Hamilton spent all of Federalist 23 through 29 defending the government's prerogative to raise a standing army. And he made some decent arguments -- pointing out, not unreasonably, that most state governments at the time were empowered to raise armies, and that furthermore the "Western frontier" of the United States, still confined to those early 13 coast-hugging colonies, was in need of defense. If an invasion came,it would already be too late to form an army to repel the attack. And in Federalist 25, he even makes the odd argument that it's safe to let the federal government raise a standing army precisely because Americans would be suspicious of infringement on their liberties:

As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

Hamilton's strongest argument against a standing army being used to usurp American liberties, though, comes from the structure of the government itself. The chief executive might be willing to use the army for nefarious purposes, he says, but then he'd have to contend with Congress!

Federalist 24:

the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

From this, we can gather a few things:

* That Hamilton didn't really forsee that the executive branch -- despite the division of powers enumerated in the Constitution -- would claim for itself practically unlimited and unilateral power over national security.

* Nor did he forsee that Congress would generally defer to the executive's assertion of authority.

* Then again, none of the folks involved really foresaw the explosive growth of a national security state that involves hundreds of thousands of people collecting snooping and spying on, well, pretty much all electronic communication on Planet Earth. Concerns about a "standing army" seem almost quaint, don't they.

One wonders what Brutus or Alexander Hamilton would've made of today's lead story in the Washington Post, and these findings:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings - about 17 million square feet of space.

There are reasons for all of this, of course. We want to be kept safe from the threats the world aims at us. The result is that we have a huge -- and, because it is so huge, virtually unchecked -- national security establishment that operates in the shadows, out of the public's sight. Alexander Hamilton promised us that Congress would keep the leviathan in check. It hasn't. Do you feel any more free?

Federalist No. 22: Why the U.S. Senate and Jimmy Stewart both suck

Let's talk about the filibuster.

Back up: There's no discussion of the U.S. Senate or the filibuster by Alexander Hamilton in Federalist 22. Hamilton's wrapping up a long discussion of why the Article of Confederation are a bad way to run the United States -- and while he touches on a few topics here, he spends most of this essay talking about one particular evil: Under the Articles, it's all too easy for a minority of states with a minority of the U.S. population to obstruct the will of the majority.

And what becomes clear is this: If the pre-Constitution U.S. government was unworkable because of such problems, well then: Today's U.S. government is unworkable.

Under the Articles, see, each state -- no matter how thickly or thinly populated -- had an equal voice in the national governance. What's more, it took the consent of two-thirds of the states to pass major legislation: In an era where the United States comprised just 13 states, that meant that five states could block action.

And that, Hamilton huffed, was no way to run a republic.

Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America;3 and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third.

He adds later:

The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. ... When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Here's the thing: Hamilton's critique of the Articles of Confederation is precisely applicable to the United States Senate.

Equal representation for each state, regardless of state size? Montana and New York both have two senators each, even though the population of Montana wouldn't even fill out Manhattan.

And a supermajority requirement for major legislation? That's pretty much the case in the Senate, where 60 votes are required to break a filibuster -- and a filibuster is brought, by one account, against 70 percent of all legislation.

George Will, who likes the filibuster, did the math in February after Scott Brown's election to the Senate:

Liberals fret: 41 senators from the 21 smallest states, with barely 10 percent of the population, could block a bill. But Matthew Franck of Radford University counters that if cloture were blocked by 41 senators from the 21 largest states, the 41 would represent 77.4 percent of the nation's population. Anyway, senators are never so tidily sorted, so consider today's health impasse: The 59 Democratic senators come from 36 states containing 74.9 percent of the population, while the 41 Republicans come from 27 states -- a majority -- containing 48.7 percent. (Thirteen states have senators from each party.)

Enjoyable how Will counts the number of states as a majority, and not the number of voters. As the Senate is currently constructed, though, the minority -- both in the number of senators and in the amount of population they represent -- routinely frustrates the will of the majority.

And Hamilton likened this state of affairs to "poison."

Should he have known that his critique would also be a problem under the new Constitution? Kinda, maybe. After all, the Senate was always proportioned to give each state an equal say. And since any legislation that would pass Congress would have to pass the Senate, it was always going to be the case that more-populated states would be proportionally less powerful in the national governance.

Where Hamilton maybe gets a pass: The filibuster isn't written into the Constitution. It's part of Senate rules, which the Senate itself adopts. Every few years there's talk of abolishing the filibuster, but whoever is in the minority -- sometimes it's Democrats and sometimes its Republicans -- usually starts waxing eloquent about the rights of the minority, and nothing ever comes of it.

And I wonder: Why don't they bring up Hamilton's critique of the Articles of Confederation? And why aren't conservatives like Will -- who seem to think they're more faithful than thou on matters of fidelity to the Constitution and the Founders -- the loudest voices on this? True, Hamilton wasn't directly criticizing today's U.S. Senate, but that doesn't matter. The state of affairs he describes is exactly the same.

Federalist 16-20: Alexander Hamilton's hopey-changey thing

Here we are, once again: The shadow of the Civil War -- about 70 years in the future -- keeps popping up as we make our way through the Federalist Papers. Why? Because Alexander Hamilton, John Jay and James Madison keep making the case that the United States under the Articles of Confederation is prone to such a war.

Hamilton revisits this theme in Federalist 16, suggesting that the states under the Articles have so much latitude to act on their own -- instead of falling in line under a central government -- that conflict is more likely to arise between the states. "The first war of this kind," he warns, "would probably terminate in a dissolution of the Union."

There's another possibility, though, as Hamilton admits: If one state went its own way in defiance of the national government, the other states would probably do likewise -- rather than make a big deal and incite war. "And the guilt of all," Hamilton writes, " would become the security of all."

And I admit: I'm having a hard time finding a major flaw in that arrangement. It appears there are two possible ways of insuring against a civil war: building a central government with the power to keep the states in line, or giving the states the freedom to act on their own and not impose laws and rules on each other.

Indeed, the antifederalists argue that building and empowering a centralized government will make a civil war more likely -- and more devastating when it occurs. "A Farmer" is one of those who made the argument.

Whether national government will be productive of internal peace, is too uncertain to admit of decided opinion. I only hazard a conjecture when I say, that our state disputes, in a confederacy, would be disputes of levity and passion, which would subside before injury. The people being free, government having no right to them, but they to government, they would separate and divide as interest or inclination prompted-as they do at this day, and always have done, in Switzerland. In a national government, unless cautiously and fortunately administered, the disputes will be the deep-rooted differences of interest, where part of the empire must be injured by the operation of general law; and then should the sword of government be once drawn (which Heaven avert) I fear it will not be sheathed, until we have waded through that series of desolation, which France, Spain, and the other great kingdoms of the world have suffered, in order to bring so many separate States into uniformity, of government and law; in which event the legislative power can only be entrusted to one man (as it is with them) who can have no local attachments, partial interests, or private views to gratify.

That kind of sounds like what happened, doesn't it? But Hamilton argues for big gubmint. Get this:

The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

There's a lot of talk here about pretty mushy concepts like "hopes" and fears" and "the human heart." It sounds, in fact, almost Obama-like. Hamilton isn't really talking about limited government staying out of the way of citizens, who are then free to make their own way by dint of their rugged individualism. He's talking about using the power of the state in the service of citizen self-actualization. When Democrats talk like this these days, my conservative friends react with horror and contempt. Am I missing something?

Don't worry, Hamilton says in Federalist 15. The federal government under the U.S. Constitution will be too limited to really infringe on the people, or even to displace state governments. And it's here that I confess: My conservative friends are probably right when they say Hamilton et al could never have imagined the huge federal government we have today. Here's Hamilton talking about those limitations:

I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.

Mr. Hamilton: I give you the Department of Agriculture -- which has done more to affect why, how and what we grow and eat than any other institution in human history, perhaps. So there's that.
He keeps going.

There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, -- I mean the ordinary administration of criminal and civil justice. ... This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.

Mr. Hamilton, I give you the FBI. Bank robberies, no matter how third-rate and niggling, aren't really a local matter anymore -- they're prosecuted in federal courts. Just last month, the Supreme Court ruled that federal officials could civilly commit sex offenders who've served out their criminal prison sentences -- a role that used to be exclusively reserved to the states. And that ruling came from a conservative Supreme Court -- based on the so-called "necessary and proper clause" of the Constitution that gives Congress the power to make any law it needs to carry out its duties.

And hoo boy: The Antifederalists saw that one coming. Here's "Brutus," writing in Antifederalist 17.

The legislature of the United States are vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers; and are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the State governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual States, small as it is, will be a clog upon the wheels of the government of the United States; the latter, therefore, will be naturally inclined to remove it out of the way.

Now it's not true that state governments have been "annihilated." But it is true that the trend has been that federal power has increased and state power has contracted. Which brings us to Hamilton's most flatly untrue statement -- though, perhaps, he couldn't have known it at the time.

It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.

It didn't really work out that way, did it?

Now, I don't think that's entirely bad. But if I'm honest here, I've got to say, the Antifederalists were generally right and the Federalists were generally wrong: The government being built under the new Constitution did morph into something big and powerful and giant, reaching into many areas of the lives of its citizens. Maybe that growth is a distortion of the Founder's vision -- probably, to some extent, it is -- but Hamilton's pretty blase about the possibilities. "It can't happen here," is what he seems to be saying. But it did.

Federalists 18, 19 and 20 also concern themselves, ostensibly, with the insufficiency of the Articles of Confederation -- but rely mostly on a verrrry dry reading of history from throughout the ancient world. I'm not familiar enough with Greek or German or Dutch history to judge the interpretations offered by Hamilton and Madison here, so I won't try.

But now I'm faced with a question: Will reading the Federalist and Antifederalist papers turn me into a libertarian weirdo? It's a possibility!

Federalist 15: Do today's Tea Partiers know about this?

I had thought I'd be taking these Federalist chapters in big chunks, rather than one-by-one, but it turns out there's a lot to think about in all of these. So we're going to have to go slowly.

You might remember that I said -- somewhat near the outset of this project -- that I expected some of the context of the Federalist would reveal itself as we proceeded through the papers. I wasn't entirely wrong, because we're now at Federalist 15, and Publius is ready to start telling us why the Articles of Confederation stink.

Not, of course, that he needs to make the case. From what I can tell skimming through the Antifederalist Papers, there's no great love for the Articles among any huge segment of the nascent American society. And Publius -- Alexander Hamilton in this particular chapter -- acknowledges as much.

The point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as the friends of the new Constitution.

So what's the problem here, exactly?

Well, as Hamilton puts it, the antifederalists know the Confederation doesn't work -- but they're unwilling to countenance a government strong enough to overcome the Confederation's problems.

While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members.

Hmmm. Let me say right here I'm not trying to score any political points. But I've increasingly suspected -- reading the Federalist Papers and skimming over the Antifederalist Papers -- that today's Tea Party/GOP/conservative crowd might be heir more to the antifederalist tradition rather than the federalists. I'm not ready to mount a definitive case here -- I've not done enough reading, and in any case I've already suggested that Alexander Hamilton may not be the most reliable narrator -- but this passage here adds to my sense of things. Because it sure sounds like Hamilton is describing the kind of schizophrenia that characterizes a movement that roots on a president who breaks wiretapping and torture laws while decrying slightly higher marginal tax rates as "tyranny."

But I might be overreading things. I'm not ready to make the case. So let's move on.

Because of the antifederalist bipolar approach, Hamilton says, he's going to have to show how the Confederation really doesn't work. And he starts off with the biggest problem: The national government has too little power, while the states have too much. That means the states can -- and do -- ignore the laws made by the national government. It's an untenable situation.

The United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulation extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members fo the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.

Up till now, Publius has talked long and hard about the need for the United States to remain, well, united. Now he takes a different tack: It would be better for the states to exist as separate nations -- though allied, like the NATO alliance -- rather than allow the national government to continue in such an emasculated state. Otherwise, Hamilton writes, it's time to give a national government the power to enforce the laws it makes -- even over the objections of the states.

Government implies the power of making laws. It is essential to the idea of a law that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

He continues:

There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would perside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. ... In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been forseen. The measures of the Union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand.

And here again, I'm thinking of today's Tea Party/conservative/GOP folks who regularly assert the rights of states to nullify federal laws. (Take a look at the states attorneys general bringing legal challenges to the Affordable Care Act.) They claim to be acting in the traditions of the Founders; yet the Founders really did act to centralize power -- take it away from the states -- instead of distributing power to the states.

I have no doubt I'll come up against a flaw in this theory -- or that somebody will point it out to me -- as I continue reading. But so far, I'm finding it harder to avoid this idea: Today's Tea Partiers might actually be heirs to folks who wanted nothing to do with the Constitution. There's nothing inherently wrong with that, assuming I'm right. But it might cast a very different flavor to our modern debates.

Federalist 14: Something old, something new

The entire live-blog of "The Federalist Papers" can be found here.

My friend Ben is fond of distinguishing American conservatism from its European forebears; American conservatives, he has told me on several occasions, are conserving a revolutionary heritage. I thought about his statement quite a bit while reading James Madison in Federalist 14.

This chapter is, ostensibly, about whether the United States is too big to be governed effectively. (Madison's answer: If we were a pure democracy, with every man given a direct voice in governing, sure. But since we're a republic -- with representatives sent from the 13 states to the heart of the union -- we'll do fine. And hey, we managed to pull off a revolution together!)

But as we near the end of 14, it's apparent that Madison has another topic on his mind: Whether the type of government embodied in the proposed Constitution is so new, so radical, so unfamiliar that its very novelty increases the risks of failure. Madison's answer, of course, is "no." The Constitution might look like a new animal, he suggests, but it's really a hybrid of the best parts of governments found elsewhere in the world, and throughout history. At the same time, though, Madison offers a defense of the spirit of experimentation:

Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

(Snip)

Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe.

I noted at the outset that conservatives tend to cite "The Federalist Papers" more often than liberals and progressives, and I still think that's true. But it's here that I start to see signs that progressives can also claim a heritage from the Founding Fathers. Today's conservatives, I think, want to bind us to the vision of the Founders in a way that, perhaps, the Founders would've found alien. A reason I hear for that, often, is that human nature hasn't changed so much in 200 years. And that's right. But I don't imagine it had changed all that much, frankly, in the 200 years before the Constitution was written, either. The Founders, in other words, were not the last wise men to walk this earth.

Still, the Founders might've been experimenters and progressives, but they were rationalists and empiricists as well. They didn't build the Constitution out of a sense of pure novelty, but sought foundations in history and experience for what they were trying. And they expected, as Madison notes, that their successors would both "improve and perpetuate" what they built. If we are to conserve a revolutionary heritage, then, perhaps it was intended from the beginning that we preserve both the revolution and the heritage.

Federalist 11 - Federalist 13: Moneymoneymoneymoney! Money! (Also: The persistence of Euro-bashing in American politics)

I don't have a lot to say about Federalists 10 through 13. They're chiefly about how a unified United States will fare economically. Considering the United States went on to become the richest nation the planet's ever seen, I don't know that there's much to argue about here, even with hindsight fully engaged. But just to recap, keeping the states together will:

* Make it easier for everybody to make money. A unified America will be able to fend off competition from Europe, bargain from a stronger vantage point and -- very importantly -- be able to field a navy capable of protecting its commerce. Alexander Hamilton:

Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature.

And, Hamilton adds, a bigger country means a more economically diverse country -- which will make it easier to ride out tough times in any particular industry.



* Make it easier to collect revenue to fund a national government. Remember, this is back before the IRS had really even been thought off, so many of the government's revenues came from import duties and that kind of thing.

* Get economies of scale. This idea might seem farcical at this point, now that the government is buried in debt, the idea was that one big government might be able to do things less expensively, on the whole, than if the 13 states were all spending money on their own and duplicating efforts. Some of that depends on the United States being a much smaller country; Hamilton at one point boasts that the Navy would only have to defend the country in the Atlantic. Projecting power around the globe wasn't really under consideration here.

But speaking of the rest of the globe, there's a kind of bizarre moment at the end of Federalist 11. Hamilton's been playing up the ability of the United States to make money and compete against Europe -- when all of the sudden he launches a sort of ur-Freedom Fries campaign.

Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America -- that even dogs cease to bark after having breathed awhile in our atmosphere.1 Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

Which just goes to prove: There's no topic in American politics -- and never has been -- that can't be livened up with a little bit of good old-fashioned Euro-bashing. The French suck! USA! USA! USA!

Federalist No. 6 - Federalist No. 10: Let's not fight with each other

I said last time that the shadow of the Civil War would loom heavily over my reading of "The Federalist Papers" -- and starting in Federalist No. 6, it really, really does. Because it's here that Alexander Hamilton starts to make the case that a strong union won't just protect the individual states from wars with external powers -- it'll also keep the states from making war on each other.

So, ummm ... how did that work out for you?

No. Wait. Snark is a little too easy here. Truth is, Hamilton's got history on his side -- but he's going to take his time getting to the most useful parts of it. Instead, he tells us in No. 6 that the problem with leaving the states to proceed forward as autonomous nations is that each small state will be more likely to see the rise of a leader who makes war on neighboring states for his own vainglorious reasons.

Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification.

He goes on at length about this, citing examples from Pericles and Henry VIII, and well, he's right. That's absolutely a danger -- but it's not the ONLY danger, and sometimes it's not even the most important one. (And in any case, both large nations and small ones are subject to the danger.) The Civil War came about not because (say) Robert E. Lee dreamed of a thousand monuments to his name, but because there were very real moral (slavery) and philosophical (the role of the federal government) differences between the Northern and Southern states.

To be fair, Hamilton acknowledges as much in No. 7, listing out a series of reasons individual states might make violence upon each other: territorial disputes, including claims to territories in the west; "the competitions of commerce;" the settling of debts already owed by the Union (mostly leftover from the Revolutionary War); differing approaches to settling contracts; that kind of thing.* It's notable, though, that Hamilton speaks here in generalities -- because there's a specific notable omission: SLAVERY! WHAT ABOUT SLAVERY?!?!

*I don't want to spend too much time on a tangent here, but there's been a theory advanced among (for lack of a better word) neoconservatives in recent years that America preserves its security by establishing democracies in other countries because democracies don't tend to make war on each other. After reading Federalists No. 6 and 7, I think it's safe to say that Alexander Hamilton, drawing from history, might pooh-pooh that notion.

The result of all these potential sources of conflict, Hamilton says in No. 8, would be that each state and/or small confederacy would probably end up more militarized -- and thus more injurious to personal liberties -- than if they stuck together under the proposed Constitution. This is kind of a sly argument: One of the main concerns of the Antifederalists, I gather, is that the new Constitution would allow a central government to form a standing Army. Well, Hamilton says, the raising of a standing army can only be inferred from the words of the Constitution -- but it's a dead certainty if the states go their own way. They'll be so likely to come in conflict with each other -- and here Hamilton drops a number of examples from Europe -- that they'll have to raise their guard against each other.

In making this case, he says a few words about the militarization of a society that seem to be worth considering in 21st century America.

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors.

This kind of society, of course, is what the new Constitution is meant to protect against. And that's the promise Hamilton makes.

But if we should be disunited, and the integral parts should either remain separated, or, which is most probably, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe -- our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

Or, as he says more succinctly at the outset of No. 9:

A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.

It is in Federalist No. 10 that James Madison (finally!) makes an appearance and starts to explain why a union under the proposed Constitution will be able to tamp down -- though never eliminate -- factionalism between the states. Basically, the proposed form of government -- a republic -- will allow for democracy but not too much democracy; populist passions will be cooled by the filtration of a small group of elected men, who will thus be able to keep the passions of the day balanced against each other. Maybe one state could come under the sway of crazy men with crazy ideas, he says, but certainly not all of them at the same time. A republican form of government will "refine and enlarge the public views," he says,

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.

Which brings us back around to the Civil War. If the Constitution was supposed to tamp down conflicts between the states and temper their passions ... well, why didn't it?

Maybe it did. I've been reading the Federalists with the idea that the Civil War disproved some of the assertions made about the effects of unity, but maybe I'm wrong. Maybe the Civil War is just a huge, glaring, bloody exception to the rules that Madison, Hamilton and Jay are setting forth here. And it would be 70 years or so before the divisions between North and South turned bloody. We have stuck together -- despite some turbulent times -- since then. So who knows?

In any case, these first 10 Federalists have felt -- to this reader at least -- like so much throat-clearing. There's been a lot of talks about the benefits of unity and the dangers of splitting up into separate states or confederacies. There's been precious little talk about the proposed Constitution itself, as well as the deficiencies of the Articles of Confederation. We've got a few more chapters to go discussing the benefits of union, but just over the horizon we're about to get some answers to our main questions: Why do the Articles suck? And why is the Constitution so awesome?

Federalist Interlude: On the Perils of Public Autodidactism

Here's the problem with a project like live-blogging your way through the Federalist Papers -- it quickly becomes apparent to everybody else how much you might not know. In a classroom, you can mostly hide -- and when the moments come to prove your knowledge, well, often those tests are literally tests, and the results of them remain between you and your instructor.

Here, I'm liable to embarrass myself before literally tens of people. Some of them my friends.

I mention this because several people -- Glomarization in the comments, another friend behind the scenes -- have gently suggested that perhaps I'm reading the Federalist Papers in a bit of a vacuum: That I'm not really accounting for or explaining how badly the Articles of Confederation (America's constitution before the Constitution) were broken while I toss around insults like "douchebag" at Alexander Hamilton and "strawman" at John Jay.

And, well, they're right.

Part of this, I think, is a problem of my own expectations: I knew that the Federalist Papers were authored, basically, in support of ratifying the new Constitution. And the new Constitution was created, basically, because those Articles of Confederation weren't really working all that well for the new United States. So I guessed -- incorrectly? correctly? -- that part of the process of persuading the public to ratify the Constitution would involve a little bit of comparison. Not just "This new Constitution is awesome!" but "This new Constitution is awesome -- and here how it's better than the old Articles!"  In other words, I think I expected the context to reveal itself somewhat.

Which is perhaps fine for me as a reader. Maybe less fine for those of you who kindly bother to follow me on this little journey.

The other part of the problem is this: I don't have a teacher in this process. A classroom instructor can guide you through a text, providing context and information along the way. I don't have that; I'm improvising. In my defense: I've got a copy of "The Antifederalist Papers" open side-by-side with my copy of "The Federalist Papers." Additionally, I've spent considerable time with each chapter trying to Google my way to contextual knowledge.

Absent that, though, my knowledge of the Articles boils down to a 20-year-old drive-by from basic civics class: In those days, the United States was led by a weak Congress with no power to tax or, really, lead the country in a unified direction: The states possessed more power in this configuration than they do now. States didn't necessarily respect the laws and regulations of their neighboring states. It was a bit chaotic.

And ... that's about it. Which, for this project, probably isn't enough.

The smart thing to do right now would probably be to abandon this project, or at least the public portion of it. But lordy, that's not what the Bloggy Age is about! Frankly, I'm doing this in public in  large part because I hope I'll get some  pushback and education from my knowledgeable friends. I'll hazard looking stupid, because I figure that's the best way for me to get smarter. It's either that, or go back to college. And I ain't got time for that.

So onward ho. We'll return to "The Federalist Papers" tomorrow.

Federalist No. 2- Federalist No. 5: "Concerning Dangers from Foreign Force and Influence"

If you were a late 18th-century resident of New York reading the Federalist Papers for the first time, I think there's a small-but-not-insignificant chance you'd only be a few pages into Federalist No. 2 before you started wondering if "Publius" -- the supposed author of these papers -- is a touch bipolar. Behind the scenes, of course, "bad cop" Alexander Hamilton has turned over the writing duties to "good cop" John Jay. The shift in tone is abrupt, even if the goal is the same.

Still, if Detective Hamilton looks bad because he's bringing rubber hoses and lead pipes into the interrogation room, we can't let Jay off the hook too lightly. Because his job here is to make the case that -- despite what opponents of the proposed Constitution tell you -- it's important that the United States actually remain united states. So Federalists No. 2 through 5 are all about the wisdom of sticking together. Unless I'm missing something, though, Jay is arguing against strawmen.

It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.

And later:

With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one?

Yeah! Why do those guys want to break us all up?

Wait a minute. Which guys are those?

Damned if I know. Remember: I'm not an academic. I've got what I think is a decent knowledge of American history, but I can't remember the names of anybody who suggested -- at this point in time -- that America would be better off breaking into pieces. A quick Google search does me no good. I even download a copy of "The Anti-Federalist Papers," hoping to find an example. But what I find, skimming through chapter headings, are a series of other objections: the Constitution's lack of a Bill of Rights (it would later be added), along with a whole host of what might now be called "big government" concerns about taxes and tyranny. What I don't find, though, is a "let's call the whole thing off" attitude about the Union.

Skimming through the Antifederalists, in fact, what's striking is that they -- like the Federalists -- believe the Articles of Confederation (basically: the constitution before the Constitution) are broken. They just think the proposed Constitution isn't necessarily the right solution. Here's "Centinel," writing in Antifederalist No. 21:

That the present confederation is inadequate to the objects of the union, seems to be universally allowed. The only question is, what additional powers are wanting to give due energy to the federal government?

Well, that seems to be a fair question, doesn't it? Even an enduring one.

But we're moving into Federalist No. 3 now, and Jay finally sets himself to the task of answering his strawman question: Union (unh!): What is it good for?

Safety, basically.

Thirteen separate states, he says, will have 13 different ways to give offense to the wider world, increasing their chances of stumbling into war. A unified nation is less likely to go to war over, say, border problems than a border state itself would. Jay doesn't really explain, though, why Massachusetts should care if (say) Virginia goes to war. He's assuming the attachment to Union, I think, because he knows he's already got it -- he knows he's arguing against strawmen.

There's also safety -- and quality -- in numbers. Bigger city high schools usually have better basketball teams than small towns because they have a bigger talent pools to draw from; Jay figures the same thing. Jay starts this case in No. 3, and continues making it in No. 4.

One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.

Bigger is better. Less likely to be messed with. More able to achieve unity of purpose. And if it weren't for the whole "nobody seems to be arguing against Union, just about how it's going to be governed" thing, I'd think this case was pretty compelling.

Jay's got one last card to play along these lines, though. Unity, he says, will make Americans safer ... from each other. Splitting into separate states or confederacies, he says in Federalist No. 5, will only pit those states and confederacies against each other. North and South will most likely end up competing with and distrusting each other.

The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the Northern Hive would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.
(snip)
Hence it might and probably would happen that the foreign nation with whom the Southern confederacy might be at war would be the one with whom the Northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.

And here I'm tempted to give John Jay a break. The tensions between North and South were already apparent at the time. The Constitution's framers were doing the best they could to keep everybody together, even making concessions that let Southern states count their slaves as almost-people for the purpose of Congressional representation. So maybe the Constitution did delay the inevitable conflict.

What I don't know, though, is if that delay was worth it. Did the history of Union help the states patch their differences after the Civil War? Did slaves go free sooner or later because of the early compromises and the later war? Who knows? But it looks as though the shadow of the Civil War will be looming over upcoming chapters, so we'll have a chance to discuss this more.

A final thought: Back in Federalist No. 2, Jay makes the case for the Constitution by noting that its framers were, well, good guys -- patriotic and wise veterans of the Revolution. And no one can deny those men did good and useful work. Yet even where the Founders are concerned, I'm more than a little enamored of this reply by "Brutus Junior" in Antifederalist No. 38:

If we are to infer the perfection of this system from the characters and abilities of the men who formed it, we may as well determine to accept it without any inquiry as with. ... I confess I think it of no importance what are the characters of the framers of this government, and therefore should not have called them in question, if they had not been so often urged in print, and in conversation, in its favor. It ought to rest on its own intrinsic merit. If it is good, it is capable of being vindicated; if it is bad, it ought not to be supported. It is degrading to a freeman, and humiliating to a rational one, to pin his faith on the sleeve of any man, or body of men, in an affair of such momentous importance.

Maybe I'm wrong, but I feel like I'm finding something closer in spirit to modern, populist Tea Party conservatism in the Antifederalist Papers -- lots and lots of talk about tyranny -- than in the Federalist Papers. And maybe I'm just partial to contrarians, but I'm liking the pluck of the Antifederalists, too. All of which has me worried: Is this reading project going to turn me into a weirdo libertarian?