The Federalist Papers - The Selling of the Constitution

William F. Swindler

When the Constitutional Convention at Philadelphia rose from its work on September 17, 1787, the first–and perhaps the easiest–step in establishing a workable national government had been achieved. The second step was also relatively easy, persuading the Continental Congress that in disregarding its original instructions, to propose amendments for strengthening the Articles of Confederation, the Convention had come up with something that might work where the Articles obviously had not. After some grumbling, and after some effort to muster a quorum to take any action at all, the Congress ratified the unauthorized action of the Philadelphia delegates, and submitted the new document to state conventions for acceptance or rejection.

Now came the hardest part–the persuading of the public to accept, rather than reject, the proposed Constitution. The Convention itself had not been unanimous on the matter, and in fact only eleven of the thirteen states were officially represented by the signatures of their delegates on the document. Rhode Island, which would continue to be governed under its colonial charter for more than half a century, had boycotted the whole business. As for New York, Alexander Hamilton's signature did not commit the state, since two of the three-man delegation had withdrawn from the sessions weeks before, alarmed and protesting at the course of events. Even Hamilton, as he requested permission to add his name as an individual, was not enthusiastic about the final draft–but it was, he said, a choice between this proposal with its inadequacies, or no national government at all.

The pessimism of the men later to be called the Founding Fathers was realistically based. As the course of the next eight months would show, ratification was to be a struggle against superior odds. Rhode Island and North Carolina formally rejected the proposed Constitution and in their first conventions called for considering the question, and did not join the Union until it had been organized and functioning for several months, in North Carolina's case, and for more than a year in Rhode Island's. Connecticut and New Hampshire both experienced virulent opposition in the early period of the ratification process, and Pennsylvania's ratification, although one of the first, was bitterly condemned by large numbers of the electorate.

Although the final article of the Constitution had declared that it would go into effect when approved by nine of the states, it was obvious that the new plan of government could not succeed unless the majority included the states of New York and Virginia. These were the most important states, economically and politically, and their geographic locations would split the new nation into three separate parts if they refused to go along with the other nine. This became strikingly evident after New Hampshire, the ninth state, approved in June, 1788. Both Virginia and New York were in full debate over ratification at the time, and apparent majorities for disapproving the new Constitution were present in both conventions. Indeed, Governor George Clinton of New York had written to Governor Edmund Randolph of Virginia that he could hold his majority in line if Randolph would hold his–and the whole effort to replace the Articles would be frustrated.

Clinton, indeed, had begun his fight against the Constitution within ten days of the Convention's rising. On September 27, 1787 the text of the new document had been printed in the New York Journal, and the same issue carried a contribution by a writer identified by the pseudonym "Cato," which warned the readers that "if you are negligent or inactive, the ambitious and despotic will entrap you in their toils, and bind you with the cord of power from which you, and your posterity, may never be freed." This "Cato" was readily identified as Clinton himself; and his hostile essay was followed by one written under the nom de plume of "Sydney," who was in fact one of the original New York state delegates to Philadelphia, Robert Yates. These were powerful enemies of ratification, and their newspaper writings were reinforced by others who chose such pennames as "Brutus," "Cincinnatus," "Countryman" and "Expositor."

What the modern age would call a media battle was already in full cry within a few weeks of the adjournment of the Philadelphia Convention; and Hamilton, leading a minority campaign against the entrenched opposition, realized that a massive publicity effort would be needed to overcome the Clinton forces. Whether or not he was an enthusiast for the new Constitution, it was enough that his political foes were against it; whoever could win this fight would emerge as the dominant party figure in New York–and open the road to a dominant position in the new national government as well. Hamilton's political future was tied to ratification, and the battle for men's minds compelled him to become a champion of the Constitution.

In every state, the media campaigns, pro and con, were under way. The magnitude of the debates, from the first news of what the Convention had done to the initiation of the new government itself, is being made clear to modern Americans by the massive Documentary History of the Ratification of the Constitution now being prepared under the editorship of Professor Merrill Jensen of the University of Wisconsin. Many an eloquent, albeit anonymous, disputation on political theory would find an ephemeral place in the arguments published in newspapers and pamphlets from New Hampshire to Georgia. But, as it was to turn out, those that were organized and published under Hamilton's leadership would become the prototype and classic of all of them.

Under the series title, The Federalist, and signed with the classical pseudonym "Publius," the articles were ultimately the product of three collaborators–Hamilton himself, his fellow New Yorker, John Jay, and a kindred spirit from Virginia, James Madison. Others were approached, including, it is believed, William Duer and Gouverneur Morris, and Duer did contribute some supporting essays under the name "Philo-Publius." Madison wrote in later years that Hamilton approached him on the idea of participating in the essay series, and although the authorship of each of the eighty-five numbers has never been entirely settled, there is general agreement that Hamilton and Madison between them wrote by far the majority of the essays, and Jay only a few. The most persuasive tally, by Jacob Cooke, editor of the Hamilton Papers, gives Jay credit for five numbers, Madison fourteen, and the remainder to Hamilton.

The writing of such a vast number of articles for newspaper deadlines–four a week was the desired schedule, which was maintained for much of the time from October 27, 1787 when the first of the series appeared, until the final number on May 28, 1788–was a demanding enough challenge in itself. But the maintenance of a systematic, reasoned plan of argumentation was even greater. What made it succeed was the fact that the three authors were persons who had been close to the heart of the great events of the past decade of independence and the struggle for nationhood. Jay had become the new country's most knowledgeable foreign affairs expert; Madison had taken such copious notes at the Philadelphia Convention that he would earn the title of "Father of the Constitution." As for Hamilton, his perception of the fundamental need for economic stability and centralized control of the essentials of defense, commerce and foreign relations, established the practical foundation for the American theory of government.

Under the circumstances, the organization of the argument in The Federalist was remarkably systematic. First came a series of numbers (1-14) reviewing the flaws in the Confederation government and the manner in which the proposed new government would provide remedies. Then came a series of rebuttals to criticisms of the new Constitution expressed by hostile writers (Numbers 15-29). Madison and Hamilton then published their most persuasive essays (Numbers 30-46), on the political theory upon which representative government rests–thus giving the papers their claim to enduring future authority. Finally (Numbers 47-85), the articles gave a detailed analysis of the anticipated functions of the several departments of government in the new plan.

Hamilton was aware of the moment in history at which he wrote his opening essay. His first sentences emphasized this to his readers in The Independent Journal; or, the General Advertiser:

After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less that the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

This preamble set the tone for the series of essays which followed during the winter of 1787-88, when New York was watching the progress of ratification in other states and preparing to select the delegates to its own ratifying convention. The, series of articles caught public attention at once; two other of the city's newspapers, the Packet and the Daily Advertiser, began reprinting them. The demand for copies became so insistent that even Clinton's own party organ, the Journal, began publication with Number 23–although it soon discontinued the practice upon the petition, it said, of thirty subscribers.

Washington, to whom Hamilton sent the first several numbers, was deeply impressed, and sought to have the essays reprinted in Virginia. Jefferson, who received his copies from Madison, declared them to be "the best commentary on the principles of government which ever has been written." Yet they were part of a vast outpouring of writing on the new Constitution, at last being collected into a comprehensive edition by the Wisconsin documentary project. Elbridge Gerry, Roger Sherman, Oliver Ellsworth, James Wilson, Luther Martin, Richard Henry Lee and James Iredell were among the contributors of similar essays in their respective states, from Massachusetts to the Carolinas. It is safe to say that no state document in history was ever so thoroughly analyzed, before the people who were to be governed under it took their action.

The art of political persuasion, of course, is to minimize differences among those whose support is being sought; and for the two strong nationalists, Hamilton and Jay, to enlist the Virginian Madison in their publicity campaign required some intellectual compromises. At the convention, Madison had come off as a strong nationalist; but back home in Virginia, and under Jefferson's influence, his next twenty years would be substantially anti-Federalist. When, as President himself, he was his own man, and under the Philadelphia Convention, Madison had boldly stated: "The states never possessed the essential rights of sovereignty." He was referring, then, to the locus of power to deal with foreign nations or with relations between two or more states. Yet in No. 39 of The Federalist, he was to declare:

Each state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national, Constitution.

This ambivalence would haunt Madison's own reputation, and it gave rise to charges in later editions of the book version of the Federalist Papers that he had been the godfather of the compact theory of national government to which the secessionists of 1861 appealed. Yet even Hamilton, about whose nationalism there was never any doubt, found it expedient to temporize in dealing with some of the state sovereignty factions in New York. In No. 84 of the Federalist papers, he had excused the lack of a Bill of Rights in the new Constitution with the argument that the protection of the citizen was the exclusive concern of the states. In an earlier number, Hamilton had soothingly stated that "the plan of the Convention aims only at a partial union or consolidation" (No. 22). Yet at the Convention early in June, 1787 he had made a renowned speech in favor of a powerful national government.

The fact was that none of the writers, for or against the proposed Constitution, had any means of foreseeing how the new government would work in practice. Because the pro-ratification advocates persuaded the majority of the delegates in the ratifying conventions to accept the instrument more on faith than any tangible evidence–and four of the eleven ratifications were conditioned upon a series of amendments to be drafted by the first Federal Congress–it became possible to subject the theories of The Federalist to the tests of practical experience. Not all of its assurances to the state-sovereignty advocates were borne out; within five years of the operation of the new Constitution, Chisholm v. Georgia confirmed the right of a citizen or resident of one state to sue another state–confirming the worst fears of the anti-Federalists. As a result of this Supreme Court decision, the Eleventh Amendment, purporting to grant the states immunity from such suits, was rushed through Congress and ratified by the states, as Justice Frankfurter later phrased it, with "vehement speed."

Whether The Federalist, or any single group of newspaper essays or pamphlets, actually tipped the scales in New York or Virginia, cannot be demonstrated conclusively. The manifest shortcomings of the government under the Articles of Confederation, the mounting majority of states in favor of ratification, and the eloquence of the Constitution's supporters in their own conventions, were the practical considerations which probably had the cumulative ultimate effect. Yet the exhaustive exploration of all aspects of the proposed instrument in print, particularly in the weeks prior to the selection of delegates to the ratifying conventions, at least' made Americans aware of the issues and options. If anything, the high level of political theory which pervaded the Federalist Papers was, as one contemporary observed, "not well suited for the common people." But written as the essays were by three thinly-disguised persons who had been at the heart of national affairs throughout many of the critical years of the struggle for independence, their potential authority in the implementation of the principles espoused in the essays was great.

There was also the fortuitous decision to republish the essays in book form–the first volume appearing in March, 1788 and containing all the essays printed in the newspapers to the time of going to press. The second volume appeared in May and contained the remainder of the newspaper articles, even though the last eight in the series had not yet been printed in the media. It was obviously an attempt to put the complete series in the hands of those who would determine the ratification question at the meeting at Poughkeepsie; but it also prepared the way for one of the best-selling, and longest-lived, commentaries on the American system of government ever written. Four years later, a French translation was published in Paris, and the French National Assembly in August, 1792 made Hamilton and Madison honorary citizens in recognition of their contribution to the theory of national representative government. Before the end of the eighteenth century, a second American edition and second and third French editions had been published.

Another fortuitous contribution to the enduring influence of The Federalist, early in the history of the Constitution, was the citation of specific numbers as authority by the Supreme Court. Seeking for any American precedent in preference to English, both state and national courts tended to turn to it in preparing opinions on constitutional subjects–and opinions relying on The Federalist, at least in part, were then cited by later opinions. Joseph Story, in his Commentaries, called it a source "to which we must give serious weight;" while James Kent in his own work on American law declared, at the end of the first quarter of the nineteenth century:

I know not indeed of any work on the principles of free government that is to be compared . . . to . . . The Federalist, not even if we resort to Aristotle, Cicero, Machiavelli, Montesquieu, Milton, Locke or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the fearlessness, patriotism, candor, simplicity and elegance with which its truths are uttered and recommended.

The book form of the essays would, over the next two centuries, go through nearly one hundred printings in half a dozen languages, including a flurry of translations in Europe after the second World War. But the nineteenth century saw a series of editions in Italian, French, German and Spanish, as new governments seeking to emulate the American example of representative democracy took The Federalist as their basic textbook. Yet the success of the work was not without controversy, the recurring one being the question of authorship of specific numbers among the essays.

Hamilton had, according to one story, slipped a sheet of notes, giving the name of the contributor of each number, into his copy of an 1802 printing shortly before his duel with Aaron Burr. Madison, late in life when he was editing his own papers for publication, went through the essays and "corrected" some of the attributions of authorship. Jay seems to have stayed out of the whole business–but this did not deter his grandson from attacking a Madison supporter, on grounds of ideology rather than authorship. The Madisonian was a local historian of some reputation in New York, Henry B. Dawson, who was meantime having trouble over the authorship question with James Hamilton, a son of the original instigator of the essays.

The third-generation Jay charged Dawson with aggrandizing Madison's role in order to give aid and comfort to the secessionist doctrine of states' rights–this now being the time of the Civil War. The second-generation Hamilton charged Dawson had gratuitously impugned his father's authorship by basing his edition on Madison's "corrected" version rather than on Hamilton's own list prepared in 1804. (Another son, John Hamilton, a decade earlier had brought out a collection of Alexander's works which refuted the Madison list of authors.) Dawson, however, declined to give ground on either front–with the result that, for a generation after the Civil War, rival editions of The Federalist came out regularly with pro Hamilton and pro-Madison versions.

The somewhat ludicrous dispute has all but been laid to rest in the third quarter of the twentieth century, with the editors of the papers of Hamilton and Madison undertaking to come to a working agreement on the authorship lists. Jacob Cooke, one of the editors of the Hamilton Papers, in 1965 prepared a definitive edition of The Federalist, although other editions continue to come out as later scholars use it for documenting their own studies or teaching. While new editions of the essays show promise of going on indefinitely, the occasion in which the writing is cited as authority in the Supreme Court has declined in the twentieth century. In the early 1920s, a researcher for a law journal compiled–in the age before computers–a formidable list of cases in which The Federalist had been cited, which came to nearly a hundred. But a sampling of this list of cases, followed by a checking of later cases citing these samples, suggests the ultimate proof of the enduring quality of the newspaper articles, written so hastily to encourage one state's approval of the Constitution, is that the succeeding generations of brief and opinion writers, rely on authority of the original essays.

Ratifying the Constitution – A Near Thing

Approval of the work of the Founding Fathers was a hard-fought matter in the winter of 1787-88, and on into the summer. Two state conventions rejected the Constitution outright, and in at least one there was a vigorous effort to reconsider the ratification. Massachusetts, New Hampshire, New York and Virginia carried the day by uncomfortably narrow margins. Without the all-out educational campaign to persuade reluctant majorities in a number of these states, the thing might not have come off at all. The dates of the final action, and the vote in state conventions, illustrate the struggle:

December 7, 1787 Delaware unanimous

December 12, 1787 Pennsylvania 46-23

December 19, 1787 New Jersey unanimous

January 2, 1788 Georgia unanimous

January 9, 1788 Connecticut 128-40

February 6, 1788 Massachusetts 187-168*

March 24, 1788 Rhode Island rejected

March 28, 1788 Maryland 63-11

May 23, 1788 South Carolina 149-73

May 29, 1788 North Carolina rejected

June 21, 1788 New Hampshire 57- 46*

June 25, 1788 Virginia 89-79*

July 26, 1788 New York 30-27*

*Ratification conditional upon adoption of Bill of Rights.

With eleven of the thirteen states ratifying the new plan of government, it went into operation in 1789–but only after much sputtering and coughing. Although March 4 had been chosen as the starting date, it took all of the month for enough Congressmen and Senators to show up to obtain a quorum for organizing–the House of Representatives on April 1 and the Senate on April 6. Washington was not sworn in as President until April 30. The judicial branch was not organized until Congress adopted the Judiciary Act the following September 24, and the Supreme Court did not open its first term until February 1, 1790. Meantime, the remaining holdout states finally joined the union, viz.:

September 25, 1789 North Carolina 194-77*
May 29, 1790 Rhode Island 34-32*

*Ratification conditional upon adoption of Bill of Rights.