Fame and The Federalist
Since its appearance in 1788 down to the present day, no praise has been too high, no tribute too exalted for The Federalist Papers. While written in the heat of the debate over ratifying the Constitution, the collection of eighty-five essays penned by “Publius” was almost instantly recognized as a work of great, even unprecedented merit. Thomas Jefferson, who was not uncritical of the handiwork of the Framers, nevertheless considered The Federalist “the best commentary on the principles of government which was ever written.”1 George Washington, who had presided at the Federal Convention, correctly predicted that The Federalist would “merit the notice of Posterity.”2 Even before the series of papers was completed and published as a single work, its pseudonymous author was praised as a “judicious and ingenious writer,” whose “greatness is acknowledged universally,” and who “in genius and political research, is not inferior to Gibbon, Hume, [or] Montesquieu.”3
Following ratification and the formation of the new government under the Constitution, the reputation of The Federalist steadily spread. The work also grew in stature and authority when it was publicly revealed in the 1790s that the essays were the joint product of three men who had played key roles in the drafting and/or ratification of the Constitution: Alexander Hamilton, James Madison, and John Jay. Within a decade of its publication, The Federalist was being cited by Supreme Court justices to add weight and authority to their opinions. In Calder v. Bull (1798), Justice Samuel Chase appealed to Publius on the issue of ex post facto laws, an author he “esteem[ed] superior” even to Blackstone “for his extensive and accurate knowledge of the true principles of Government.” Chief Justice John Marshall, in the celebrated case of Madison v. Marbury (1803), defended the Court’s authority to overturn “unconstitutional” acts of Congress using arguments and language drawn from Federalist No. 78. Thus did the vital principle of “judicial review” (only implicit in the Constitution) enter into constitutional orthodoxy. In subsequent cases, Marshall affirmed that “[t]he opinion of the Federalist has always been considered of great authority,” and that “[n]o tribute can be paid to [the papers] which exceeds their merit.”4
James Kent, Chancellor of New York and second only to Joseph Story among antebellum jurists, eloquently praised The Federalist in his popular and influential Commentaries on American Law (1826-30). “[T]here is no work on the subject of the Constitution,” wrote Kent, “and on republican and federal government generally, that deserves to be more thoroughly studied . . . . No constitution of government ever received a more masterly and successful vindication.” The Federalist was not merely an unparalleled commentary on the Constitution; it was superior to even the great classics of political thought, “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.”5 In his own famous Commentaries (1833), Justice Story sought to “employ . . . the whole substance of the Federalist,” which he considered an “incomparable commentary of three of the greatest statesmen of the age.”6 John C. Calhoun called The Federalist “the fullest and, in many respects, the best” work on the principles of American government,7 while John Quincy Adams affirmed that The Federalist was not only a “classical work in the English language,” but as a “commentary on the Constitution of the United States, of scarcely less authority than the Constitution itself.”8
The weight of such “authority” was reflected in the frequent use of The Federalist in Supreme Court opinions. While direct references abated in the decades following Reconstruction, the work was cited in many of the Court’s most important rulings in the late nineteenth and early twentieth centuries.9 In more recent years, appeals (if not eulogies) to The Federalist have been increasing, and have figured prominently in a number of important decisions.10 Nor have members of Congress hesitated to invoke the authority of Publius in disputes over the constitutionality of legislation, the actions of the co-ordinate branches, or the federal nature of the Union. Even presidents have sought the solicitude of The Federalist, as when Ronald Reagan pledged that his “administration [was] committed—heart and soul—to the principles of American Federalism, which are outlined in the original Federalist Papers of Hamilton, Madison, and Jay.”11
Perhaps the most partisan use of The Federalist has occurred during impeachment proceedings, in which both accusers and defenders have made ready use of the relevant numbers. So frequent were such references during the impeachment of President Clinton, that popular media sources ran stories on The Federalist, while legal experts and political pundits scrambled for copies of the “venerable” text.12 In conjunction with its other “official” uses, it may be said without exaggeration that “The Federalist has long enjoyed a talismanic status in American constitutional interpretation.”13
The authority vested in The Federalist by Congress, the Supreme Court, and presidents has been greatly augmented by generations of admiring scholars, including jurists, historians, and political scientists. Yet prior to the twentieth century (and the rise of modern scholarship) little of substance was written on The Federalist, although it was almost invariably praised in passing. John Fiske, in his influential history of the “critical period” under the Articles of Confederation, called it “perhaps the most famous of American books, and undoubtedly the most profound and suggestive treatise on government that has ever been written.”14 Yet even after “progressive” historians such as J. Allen Smith, Charles Beard, and Vernon Parrington mounted the first major challenge to the “official” interpretation of the Constitution, it would be decades before The Federalist became the object of close, widespread, and sustained scrutiny.15
Ironically, it was Beard himself who, thirty five-years after the appearance of his famous “economic” critique of the Constitution, praised The Federalist as not merely “the most instructive work on political science ever written in the United States,” but “owing to its practical character, it ranks first in the world’s literature of political science.”16 Around the same time, Douglas Adair published a series of articles which, inter alias, firmly established the authorship of certain disputed numbers.17 In the postwar era, scholarly interest in The Federalist rapidly spread, resulting in several new editions, a flood of articles, and a number of full-length studies. Even before the Constitution’s bicentennial (which prompted a further outpouring), it was possible to speak of a “growth industry” in Federalist scholarship.18
In sheer weight, the production of the last fifty years has cemented The Federalist‘s reputation as both the leading commentary on the Constitution and an enduring political classic. That it has attracted the serious attention of some of the best minds in law, history, and political science tends to confirm the assertion. In his influential treatise on Revolutionary-era political thought, Gordon Wood affirmed that The Federalist propounded “a political theory worthy of a high place in the history of Western thought.”19 Jack Rakove, in a study which won a Pulitzer Prize, averred that among works of political science “[n]othing equals it in analytical breadth and conceptual power.”20 The distinguished scholar Hans Morgenthau praised The Federalist as “an unsurpassed compendium of political truth,”21 while Clinton Rossiter, an editor of the papers, called it “the most important work in political science that has ever been written, or is likely ever to be written in the United States. It is, indeed, the one product of the American mind that is rightly counted among the classics of political theory.” As for its status “among the sacred writings of American political history,” Rossiter observes, “[i]t would not be stretching the truth more than a few inches to say that The Federalist stands third only to the Declaration of Independence and the Constitution itself.”22
The fact that two or three of the most influential papers (Nos. 10, 51, 78) now regularly appear alongside these “sacred writings” in American government textbooks, indicates that Rossiter stretched the truth but a few pages. Indeed, it was Thomas Jefferson himself who, in preparing the curricula for the University of Virginia, placed The Federalist second only to the Declaration of Independence in a list of the “the best guides” for the study of the principles of American government.23
Without denying its value or significance, the skeptical reader might suspect that the fame of The Federalist has actually been more parochial than its most zealous (American) admirers have suggested. Certainly, the rest of the world has not been so effusive in praising Publius. While no “foreign” history of The Federalist currently exists, one scholar’s summary of its reputation abroad puts to rest the suspicion that the fame of “Publius” is merely an affaire American.24
In Great Britain the work was singled out for praise by reviewers and some of the leading political writers of the nineteenth-century. The Edinburgh Review effused that its authors exhibited a “profundity of research and an acuteness of understanding which would have done honour to the most illustrious statesman of modern times.” Similarly, Blackwood’s Magazine affirmed that The Federalist “may be called seriously, reverently, the Bible of Republicanism. It is a work altogether, which for comprehensiveness of design, strength, clearness, and simplicity has no parallel. We do not even except or overlook those of Montesquieu and Aristotle . . . .” Three eminent Victorians, each of whom contributed a political classic of his own, were hardly less enthusiastic. John Stuart Mill called The Federalist “the most instructive treatise we possess on federal government,” while Sir Henry Summer Maine concurred with Chancellor Kent’s exalted assessment of the work. Lord Bryce, whose The American Commonwealth (excepting The Federalist itself), is second only to Tocqueville’s Democracy in America as a commentary on the American polity, looked to “Publius” as the unsurpassed expositor of the Constitution; a document William Gladstone called “the most wonderful work ever struck off at a given time by the hand and purpose of man.”
In the non-English speaking world, The Federalist made its debut in France, where it was translated in 1792—the same year the revolutionary government bestowed honorary citizenship upon its two principal authors, Hamilton and Madison. Even earlier the essays had been freely cited in the debates of the Constituent Assembly. Following the proclamation of the Republic, and the National Convention’s condemnation of “le gouvernment federatif,” the work fell into disrepute. Yet like the French governments of the time, such official disfavor did not long endure. Tallyrand, who placed Hamilton above Napoleon and Pitt among the luminaries of the age, warmly recommended the work, while Tocqueville called it “an excellent book, which ought to be familiar to the statesman of all countries.” Scholar-statesman François Guizot did “not know in the whole compass of my reading [on government and politics] . . . so able a book.” At the turn of the century The Federalist was newly translated, and has continued to attract the attention of French students of government.
In Germany The Federalist‘s reception was less dramatic, but not without consequence. Robert von Mohl relied heavily on the work in his 1824 treatise on American government, and in a later study recognized its perennial value as classic of political science, adding that “it is absolutely impossible to speak with greater clarity” on the subject. It is thought that the authors of the short-lived Frankfurt Constitution (1848) were admirers of the essays, while in the 1860s, as Germany moved toward forging its own federal union, a book on The Federalist was published which included a partial translation of the papers. Both before and after unification in 1871, the nationalist historian Treitschke acknowledged that The Federalist bore the original conception of the German Bundesstaat or federal system of government. Nor was admiration for the work lacking among Wilhelmine scholars. Albert Haenel declared the work an unparalleled example of political reasoning, while Hugo Preuss, father of the Weimar Constitution, looked to The Federalist as “the canonical book of American constitutionalism.” In the 1950s, the first complete German translation appeared, and the work remains a relevant source on federalism and constitutional government.
The Federalist attracted little notice in Italy during the nineteenth century, although the few scholars familiar with the text found it a work of notable merit. As Italy considered decentralization after World War II, the papers suddenly became the object of considerable interest. In the mid-1950s, Aldo Garosci published one of the first full-length studies of The Federalist, which he considered “a book of great value,” and unsurpassed for the weight and cogency of its arguments. Shortly thereafter Gaspare Ambrosini, a justice on Italy’s Constitutional Court, translated the work into Italian for the first time, and declared the papers “a profound and suggestive commentary on the Constitution and a great treatise of political science.”
In Latin America The Federalist was translated into Spanish and Portuguese in the early nineteenth century and appears to have influenced constitutional developments in Argentina and Brazil. In Mexico it has attracted the attention of scholars, one of whom praised it as a “monumental work,” while others have attested to its world reputation and enduring value. The various experiments with constitutional government and federalism in Mexico and around the world have given the work a relevance and currency well beyond the interest of scholars.
Given its global reputation, it is not surprising that The Federalist has assumed an honored position among the pantheon of literary, scientific, and philosophical classics. Selected for inclusion in the Great Books of the Western World compiled by the University of Chicago, the newspaper essays of Publius took their place alongside Plato’s Dialogues, Newton’s Principii, and Darwin’s Origins of the Species as seminal testaments of the Western mind. The presence of The Federalist among the Harvard Classics and similar collections has confirmed the papers’ canonical status in the republic of letters.
Finally, the work of Publius has been singled out for its important place in the broader currents of intellectual history. Peter Gay, for instance, crowned his landmark study of the European Enlightenment with a remarkable tribute to the American authors of The Federalist. The papers, Gay writes, did not merely reflect the “spirit of the age;” they implicitly embodied “all the great themes of the Enlightenment . . . the dialectical movement away from Christianity to modernity; the pessimistic though wholly secular appraisal of human nature coupled with an optimistic confidence in instrumental arrangements; the pragmatic reading of history as an aid to political sociology; the humane philosophy underlying their plea for the proposed constitution; the commitment to the critical method and the eloquent advocacy of practicality.” The work of “Publius,” Gay concludes, “fully deserves immortality as a classic in the art of politics.”25
The “Other” Federalist
Were the preceding account left to stand alone it might serve as a fitting encomium on The Federalist, but it would leave but a partial, indeed a distorted picture of the work’s actual reception and history. It will be recalled that Publius wrote as an advocate of the Constitution in the midst of a contentious, sometimes bitter struggle over the great question of ratification. Those who opposed adoption, the Antifederalists, denounced the document (in whole or part) as a dangerous innovation, and predicted that it would create a “consolidated” government of, by, and for the few at the expense of the many. Given their record of opposition, there is little reason to presume that Publius’s reassurances to the contrary were persuasive with many of the Constitution’s opponents.26
Yet because they lost the struggle, and because their worst fears proved illusory, the Antifederalists fell into an obscurity from which they have only recently begun to emerge. Given the remarkable ascendance of the United States under the Constitution, it is not surprising that subsequent generations looked down on its original critics as false prophets and “men of little faith.”27 But in light of history and the bright glare of Constitution-worship, it is often forgotten how perilously close the Antifederalists came to defeating the work of the Framers. In key states such as Virginia, Pennsylvania, and Massachusetts, sentiment against the Constitution ran high, and ratification was obtained by a only small margin, and then only after accepting certain Antifederalist objections in the form of proposed amendments. In North Carolina, the ratifying convention refused to approve the document, proposed amendments, and adjourned. So strong was the opposition in Rhode Island that the legislature failed to call a ratifying convention for two-and-a-half years after Congress first authorized the states to do so.28
In New York City, where The Federalist essays were first published, the contest was particularly heated, and sparked an unprecedented outpouring of partisan literature.29 As noted above, once ratification was secured, the letters of Publius shortly attained a privileged status as an authoritative commentary on the Constitution and a classic of political thought. While the outcome of the struggle was undecided, however, admiration for Publius was far from universal. As the Federalist essays began to blanket city newspapers at a rate of three to four a week, some readers complained of sheer “overkill.” A group of “Twenty-seven Subscribers” scolded the editor of the New-York Journal “for cramming us with the voluminous Publius,” who had “become nauseous.”30 The sentiment was shared by others, who like one frustrated reader, could no longer stomach “the dry trash of Publius in 150 numbers.”31
It was not merely the length and ostensible tedium of The Federalist that attracted criticism: Publius was also accused of sophistry, redundancy, even irrelevance. With an air of condescension, “Countryman,” one of the more able Antifederalist writers, confessed, “I really cannot find out what he would be at; he seems to me as if he was going to write a history . . . .” In a later essay, he compared Publius to a sophistic lawyer “when hard pushed, in a bad cause, with a rich client.” “They frequently say a good deal, which does not apply; but yet if it will not convince the judge nor jury, may, perhaps, help to make them forget some part of the evidence—embarrass their opponent, and make the audience stare, besides increasing the practice.”32
In Philadelphia, where some of the Federalist numbers were reprinted, “Centinel” railed against Publius for “mistaking sound for argument” and “accumulat[ing] myriads of unmeaning sentences.” “[H]e might have spared his readers the fatigue of wading through his long winded disquisitions . . . as totally inapplicable to the subject he was professedly treating; this writer has devoted much time, and wasted more paper in combating chimeras of his own creation.”33 Another critic compared “Publius” to a famous Scots preacher, whose long-winded sermons would “jade the brains of any poor sinner . . . .”34 To these charges, Louis Otto, the French envoy, added that The Federalist was a practical failure—”of no value whatever to well-informed people, and . . . too learned and too long for the ignorant.”35 Even some of the Constitution’s supporters considered the work ill-suited to the task of influencing popular opinion.36
Such pointed criticisms may be ascribed to the heat of controversy, but the general sentiment was not restricted to an inconsequential minority. Indeed, it was a view shared by a majority of delegates elected to the New York Ratifying Convention, a principal target of the essays. Moreover, subsequent references to The Federalist were not always as exalted as suggested above. In fact, some of its warmest admirers voiced reservations about its merit as a work of political thought and questioned its authority on the meaning of the Constitution. Immediately after praising The Federalist as “the best commentary on the principles of government . . . ever written,” Jefferson observed that “[i]n some parts, it is discoverable that the author means only to say what may best be said in defense of opinions in which he did not concur.” Similarly, after asserting that “[n]o tribute . . . exceeds [its] merit,” John Marshall insisted that the Supreme Court retained “a right to judge of [its] correctness . . . .” The implication that The Federalist contained “errors” or omissions was also drawn by Justice Story, who observed that “it cannot in candor be admitted to be wholly satisfactory, or conclusive” in some of its arguments.37 Spencer Roane, who sat on the Virginia Court of Appeals, did not doubt the “general ability” of Publius, but hastened to inform his fellow justices that The Federalist originated as “a mere newspaper publication, written in the heat and hurry of battle.”38
Similar reservations (and some outright criticism) were also expressed by members of the antebellum Congress. In the first Congress, Senator William Maclay hoped to obtain a copy of the essays “without buying it,” considering the purchase “not worth it.”39 During the dispute over whether Congress had the authority to charter a national bank—a debate in which both sides invoked the authority of Publius—Elbridge Gerry of Connecticut denounced “this part of his performance . . . as a political heresy” and argued that “[h]is doctrine, indeed, was calculated to lull the consciences of those who differed in opinion with him at the time . . . .”40 William Lowdes of South Carolina recognized the merit of the work, but reminded his colleagues that its authors were “jealous advocates” who could not claim the authority of “an impartial judge” on matters of constitutional construction.41 John Quincy Adams, who considered The Federalist “a classical work . . . of scarcely less authority than the Constitution itself,” nonetheless found it lacking in “that entire unity of design, or execution which might have been expected had it been the production of a single mind.” In the same breath in which he called The Federalist “the fullest and, in many respects, the best” treatise on American government, John C. Calhoun charged that “it takes many false views and by no means goes to the bottom of the system.” Later, he would speak of “its radical and dangerous” errors, which he believed had “contributed, more than all others combined, to cast a mist over our system of government, and confound and lead astray the minds of the community as to a true conception of its real character.”42
Following the Civil War and Reconstruction, outright attacks on The Federalist were rare, although Woodrow Wilson did complain of its “strange, persistent longevity of power,” which he blamed for “obscuring much of [the] development of constitutional practice . . . .”43 While Wilson qua scholar held distinctly “unorthodox” views regarding American government, his objection found expression among judges and jurists who questioned the relevance and validity of The Federalist as a aid to constitutional interpretation. Typically, the Supreme Court’s use of the papers has been entangled with the larger question of “original intent” and the propriety of using contemporaneous exposition as a guide for determining cases.44 On occasion, however, the authority of The Federalist has been directly challenged, as when Justice Baldwin, in Cherokee Nation v. Georgia (1831), bluntly observed that the Court could “expound the constitution without a reference to the definitions of a state or nation by any foreign writer, hypothetical reasoning, or the dissertations of The Federalist.” To do otherwise “would be to substitute individual authority in place of the declared will of the sovereign power of the union, in a written fundamental law.” Later, in a case involving jurisdiction over corporations, Justice Campbell raised what one scholar has called “the classic objection to the majority’s use of The Federalist—extrapolation from such dated sources.”45 Since corporations were not “within the contemplation of the framers of the Constitution,” Campbell wrote, The Federalist could have no bearing in resolving jurisdictional disputes.46
The belief that changed circumstances rendered Publius irrelevant to a widening range of constitutional controversies gained currency with the rise of industrial society and America’s emergence as a world power. It had never been possible to consult The Federalist in cases involving constitutional amendments, of which twelve were adopted by 1803. Indeed, Publius had defended the absence of a bill of rights in the Constitution, which he maintained was “itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” (No. 84) So unpersuasive was such reasoning that many Federalists (including Hamilton, Madison, and Jay) were forced to concede the point and pledge support for adding a bill of rights once the new government convened. The need to remedy this “defect” in the Constitution was underscored by some of the ratifying conventions, which included a bill of rights among the proposed amendments attached to their articles of ratification. The Civil War amendments, particularly the Fourteenth, which reconfigured the relation between state and national governments, further reduced the relevance and authority of The Federalist in the Court’s adjudications. In a case involving the equal protection clause, Justice Douglas cited Federalist No. 68 as evidence that the arguments of Publius “belong to a bygone day.”47 More recently, Justice White criticized Justice O’Connor’s selective use of The Federalist, which he dismissed as “elaborate window dressing,” possessing a “distinctly wooden quality.”48
The notion that Publius is of dubious authority as a guide to the Constitution and “is invoked to affirm conclusions already reached” has been shared by students of the Supreme Court’s use of The Federalist.49 In reviewing cases where the Court directly cited the work, Charles Pierson observed that its authors “were addressing the people at large and their aim was to influence public opinion, not to formulate principles for the guidance of the courts. No one foresaw the possibility that what they were writing would some day be cited in the law reports along with Blackstone and Kent.”50 Jacobus tenBroek, in his influential critique of the use of “extrinsic aids” in constitutional construction, anticipated Justice White in noting that “[w]hether The Federalist is used [by the Court], seems to be determined solely by whether or not an appropriate passage can be found in it . . . .”51
More recent students of the Supreme Court’s use of The Federalist have reached similar conclusions. A review of such uses, notes James Ducayet, “fails to provide any general consensus on why The Federalist ought to be regarded as an authoritative guide to the proper interpretation of the constitutional system.”52 Similarly, James Wilson contends that “the Court has made no real effort to understand The Federalist” and has “continually used it as an instrument of persuasion.” Indeed, “[p]assages have been cited (although frequently out of context), ignored (although The Federalist had been shown to support an opposing argument), or even rejected (when the changed times argument dictated a different result), depending on the position a justice wanted to advance. Rarely has the Court gone beyond its meaning or significance.”53 More fundamentally, as Peter Quint notes, “The Federalist is not of direct relevance to many of the major issues of contemporary constitutional litigation.”54
While one should not confuse criticism of the Supreme Court’s “use” of The Federalist with criticism of the work itself, insofar as the pattern of (mis)use is attributed to certain “ambiguities” and “underlying tensions” within the papers themselves, the latter is often implied. Such criticism was initially suggested by contemporaries who considered the essays ill-suited for gaining adherents to the Constitution, a view supported by historians who affirm that their actual impact on ratification was “marginal.”55 Rarely, however, has The Federalist been the subject of direct or sustained criticism. The “revisionist” interpretation of the Constitution by “progressive” historians, and specifically Charles Beard’s economic analysis of Federalist No. 10, did gain widespread currency but failed to produce a revised Publius.
This is not to say that the papers have entirely escaped scholarly detraction. While ranking The Federalist “first in the world’s literature of political science,” Beard himself complained that its arguments are “more than occasionally repetitious and defective in logical structure.” Similarly, political scientist Robert Dahl found Madison’s reasoning in Federalist No. 10 “shot through with assumptions and arguments that do not stand up under criticism” and concluded that “his nice distinctions were at bottom arbitrary.”56 Even Clinton Roisster, who placed The Federalist “among the sacred documents” of American history, could speak of the work’s “startling omissions and uneven quality”—hardly words typically associated with the Declaration of Independence or the Constitution.
More curious, however, is Rossiter’s gloss on The Federalist‘s defects as a work of “political theory,” which reads remarkably like a Antifederalist broadside:
As a piece of very special pleading—some have called it a lawyer’s brief—it says the same thing over and over in a half dozen ways, tiptoes delicately around many of the hard criticisms directed against the Constitution and slogs ponderously through some of the silliest, and makes at least a few arguments and appeals which its authors must have had trouble justifying to their own consciences.57
The assertion that The Federalist suffers from bias, verbosity, obfuscation, and bad faith may sound odd in the midst of a eulogy, but it is not (as we have seen) without precedent. Nor have more recent scholars failed to note (if only in passing) the presence of such “defects.” As for the more substantive charges, some have located the source of the work’s chief “weakness”—its ambiguity of meaning—in the differing contributions of Hamilton and Madison. The seeds of this view were planted by John Quincy Adams, who found it “not difficult to perceive [in The Federalist] that diversity of genius and character which afterwards separated [Madison and Hamilton] so widely from each other on questions of public interest, affecting the construction of the Constitution . . . .”58
More than a century later, Douglas Adair sorted out the disputed essays, and in the process detected a “radical divergence” in the two men’s views on government, concluding that Publius suffered from a “split personalty.”59 Exploring this diagnosis, Alpheus Mason supplied additional grounds for the contention that “Hamilton and Madison display a sharp theoretical split” in The Federalist. Given the discrepancy between the views each man expressed at the Federal Convention and the actual provisions of the Constitution, is it not probable that they were forced to make “concessions to views they could not honestly support”? Moreover, in light of the subsequent break between Madison and Hamilton into sharply divided camps, is it not possible that each deliberately wrote “in language so equivocal as to disguise the Constitution’s true import?” Indeed, “did not The Federalist, instead of elucidating and clarifying the points of contention within the fundamental law, actually gloss over these and thereby add to the confusion?”60 Mason does not directly answer these questions, but his discussion suggests that the charges are entirely plausible.
While the “split personality” thesis has not gone unchallenged, many of its implications have been absorbed by subsequent observers.61 Some have detected an “inherent ambiguity” in The Federalist, while others have suggested that its authors were placed in the “false position” of assuming views contrary to their “personal, considered thoughts about American politics.”62 Others still have found that in meeting the objections of the Constitution’s opponents, The Federalist is less a model of persuasion than “a masterpiece of evasion.”63
Further examples could be added, but such remarks are typically not intended to impugn the overall merit of The Federalist or the skill of its authors: more often they assume the form of passing criticism by a friendly source. In at least one case, however, a reputable scholar has unequivocally challenged the reputation of Publius. William Crosskey, in accounting for the “great mass of misconceptions” surrounding the Constitution, singles out the authors of The Federalist for especial censure. “[P]roperly understood” (that is, in the context of a highly-charged, partisan struggle), the papers “are seen to contain much of sophistry; much that is merely distractive; and some things . . . which come perilously near to falsehood.”64 Not only was Publius guilty of employing “the various tricks of advocacy,” he displayed an “utter confusion” over the first principles of American government. And while “The Federalist‘s sophistries, its inconsistencies, distractions, and other tricks, are obvious today,” its canonization as the definitive commentary on the Constitution led to the confusion which has flourished over its meaning ever since.
As for the claim that Publius reflects the views of those who drafted and ratified the Constitution, Crosskey claims that “[n]othing could be much further from the truth.” Indeed, these views “were diametrically opposed to those expressed in The Federalist.” As such, “discerning men” who supported the Constitution found many of its arguments embarrassing and “ridiculous,” while the Antifederalists were given “in permanent form, a body of sophistry, innuendo, and near-falsehood, as to the meaning of the Constitution, which was of unique value to that party.” Measured against its “great vogue” among subsequent generations of jurists, scholars, and politicians, such unflattering revelations suggest that The Federalist occupies a “very questionable place in American history.”65
Whatever the merit of this assessment, Crosskey does underscore a critical aspect of The Federalist that has frequently escaped the attention of scholars; viz., the partisan, rhetorical, and polemical context in which it was written. Most know that the papers were part of an effort to elect pro-Constitution delegates to the New York Ratifying Convention, but few have given more than passing notice to the papers’historical origins inpolitical controversy or the authors’ immediate aim ofpersuadingthe electorate. Invariably, students of The Federalist have engaged the text from an analytical perspective, with slight consideration for its historical context or literary quality. The author of a leading study of The Federalist found “no alternatives to an analytical approach,” and pronounced “the literary style” of the work of “no concern.”66 Few have been so categorical, but rarely have the papers been approached from a non-analytical perspective. Crosskey suggests that the emphasis on theoretical analysis at the expense of historical, political, and linguistic factors has served to conceal the true significance of the papers. Accordingly, to know something of this significance is
. . . to know something of certain peculiarities of America speech at the time the papers were written; to know something of the legal and political ideas and terminology of the period; to know what was being said about the Constitution in the other states, . . . And most important of all, it is necessary to put the “Federalist Papers” back into their native context, that is, of the constitutional controversy that raged, in 1787 and 1788, in the newspapers of New York.67
If Crosskey found it odd that “[n]o attempt to evaluate The Federalist upon such a basis” had yet been made, it must appear all the more so a half-century later. More recent studies have shown a greater concern for the work’s linguistic, philosophical, and ideological dimensions, and for the historical circumstances of its composition.68 Yet the suggestion that it is necessary to read The Federalist within the context of partisan controversy—that is, as a work of deliberative rhetoric—has failed to attract much attention. On the few occasions when the “rhetorical” aspect of the papers has been addressed, it is typically treated as a blemish and not infrequently associated with deception, confusion, and inconsistency.
Echoing the sentiments of earlier observers, John Zvesper has suggested that the confused, partisan use The Federalist by later generations “was made possible, perhaps even inevitable, by Publius’s rhetorical position.”69 Elsewhere it has been noted that Madison and Hamilton’s support for federalism “could only be rhetorical,” given their hidden bias for a strong national government.70 The compilers of The Federalist Concordance have observed that the “internal inconsistencies” of the papers were due more to “the demands of political rhetoric than . . . an excess of ideological symmetry.”71
More frequently, however, the rhetorical element in The Federalist is politely by-passed or simply ignored. This practice suggests that it is possible, indeed appropriate, to separate the rhetoric of Publius from his political science, his polemic from his logic. Under this assumption, a leading student of The Federalist has observed that, “although its authors used much rhetoric” in making the case for the Constitution, “they also argued logically.”72 Another has drawn a distinction between Publius’s “substantive arguments (political science) and his techniques of persuasion (rhetoric),”73 while a third suggests that the authors of The Federalist used “rhetoric” much in the manner of a political confidence man:
Their aim was not to discuss an idea logically, but to prevail in a political contest, and they were fully prepared to do a bit of fudging in order to achieve that objective. They skirted issues and molded their phrases to suit their audience, in the manner of our public relations experts.74
Again, such observations are rarely intended to diminish or even challenge The Federalist‘s reputation. They do, however, reflect a common attitude towards its “rhetorical” dimension—and to rhetoric in general. The former is commonly treated as an extrinsic element, peripheral to the work’s “substantive” teaching, while the latter implies mere technique. Insofar as The Federalist has been almost exclusively valued as a commentary on the Constitution and explication of the American polity, it is not altogether surprising that Publius should fail to garner much attention as a rhetorician. The common (if unfortunate) practice of equating rhetoric with “ideology,” “propaganda,” or “sophistry” also helps explain the lack of interest in the rhetorical Federalist. On the other hand, the simple fact that the papers were written in the context of a momentous political struggle by advocates seeking to influence the outcome, suggests that the role of rhetoric in The Federalist is neither as marginal nor inconsequential as most observers have indicated.
With this in mind, a plain reading of The Federalist reveals that its authors not only employ conventions commonly associated with deliberative rhetoric, but that the entire work is written from a rhetorical standpoint: that is, with the immediate aim of persuasion. True, in some parts the papers are more patently “rhetorical” than in others, such as those which involve direct appeals to the patriotism, good sense, and candor of the reader. Yet an attention to the forms of argument and peculiarities of usage in The Federalist clearly indicates that its rhetorical dimension is anything but peripheral. On the contrary, its authors habitual use of persuasive language and rhetorical forms of discourse strongly support the conclusion that rhetoric (properly understood) is intrinsic to The Federalist, and largely inseparable from the work’s “logical” arguments as they actually appear.75 Read in this light, one will labor in vain to find a single page free of advocacy or a single argument untouched by rhetoric. In no case, however, does rhetoric function as a mere appendage or ornament of disputation. Rather, Publius’s overt appeals to the reader serve to reinforce his more substantive reasoning, while this reasoning itself is thoroughly infused with the language of persuasion. Remarkably, what was obvious to contemporary readers has left remarkably little impression on posterity.
Publius and the Rhetoricians
Bower Aly’s The Rhetoric of Alexander Hamilton (1941) was the first major study devoted to the oratory of an American Founder. Focusing on his speeches at the New York Ratifying Convention, Aly analyzed Hamilton’s rhetoric according to classical (Aristotelian) standards, and judged the performance worthy of “the highest commendation.”76 While he did not consider Hamilton’s Federalist essays, Aly’s emphasis on Hamilton the speaker, his audience, his means of persuasion, and the occasion of ratification is highly relevant to a rhetorical reading of Publius. More specifically, in applying the analytical framework of Aristotle’s Rhetoric to Hamilton’s speeches on behalf of the Constitution, Aly properly underscored the vital importance of rhetoric in the ratification campaign, and provided a model for reading The Federalist as a work of oratory.
Despite the original and suggestive nature of The Rhetoric of Alexander Hamilton, a half-century would elapse before an effort was made to examine The Federalist by the standards of classical oratory. In the interim, only a handful of scholars bothered to address its rhetorical dimension at all, much less under the aegis of Aristotle.
Writing shortly after the appearance of Aly’s study, Clarence Faust devoted much of an article on the “rhetoric of ratification” to a discussion of The Federalist. Beyond illustrating the fundamentally rhetorical character of the papers, Faust developed a general theory of the rhetorical task faced by Madison and Hamilton under the assumption that “[t]he problems . . . [they] faced as rhetoricians can best be understood by reference to their problems as statesmen during the deliberations of the Philadelphia Convention.”77 Just as Convention delegates were charged with persuading their colleagues of the need to establish “a more perfect union,” Madison and Hamilton faced the task of “persuading their readers that the proposed government promised them many advantages and that it conformed to the political principles cherished in America.” By definition each man had to bury the objections he had raised at the Convention and lay aside personal reservations regarding the propriety of the Constitution and the relative merit of its various provisions. Conversely, each labored to “specify at length the ways in which the national government would serve the various interests of the country, and to stress the aspects in which it conformed to certain prevailing political doctrines.” In doing so, Publius not only showed a “shrewd recognition of the rhetorical problem,” but “in a measure prepared his readers to agree with him.”
More specifically, Faust observes, the authors of The Federalist consistently used two basic types of argument in attempting to demonstrate the “utility of union” on the one hand, and the Constitution’s conformity with republican principles on the other. Proofs for the former were largely built upon “premises concerning causes and effects—general maxims . . . about the causes of peace and war, domestic tranquility and disturbance, of commercial success or failure, together with propositions concerning matters drawn from the experiences of earlier political societies.” Proofs for the latter were “developed largely by definition.” Both types of argument, whether grounded in a practical “consideration of interests” or a theoretical “concern with principle,” had the ultimate aim of persuading readers that the Constitution not only answered the minimum requirements, but provided an “ideal” solution to the problem of reconciling societal interests and republican principles. As with the related task of demonstrating the insoluble link between “energy” in government, national security, and individual liberty, it was the chief aim of Publius “to prove that what was right was also useful, and that what was useful was also right.”78
Given the admitted “novelty of the undertaking” (Federalist No. 37)—the establishment of an extended, federal republic—”[f]ormulas had to be invented or discovered” that would persuasively exhibit the compatibility of bedrock principles and divergent interests, and thereby “compel” support for the Constitution. According to Faust, the most important of these rhetorical maneuvers was “the way in which [Publius] elevated the conflict of interests to a principle of good government.” Contrary to accepted wisdom, which held that private right and public good were inherently competing principles, the authors of The Federalist argued that both might be served within a properly constituted republic: viz., one that contained specific institutional safeguards and “provided for the expression and interplay of numerous and divergent interests.”79
While Faust did not detail the specific arguments or persuasive techniques used in The Federalist, his focus on the rhetorical problems and general aims of its authors represents a notable landmark. In light of subsequent scholarship, however, it was an isolated event. The same may be said of an article by James Scanlon, who touched on the rhetorical element of The Federalist while exploring its authors’ views on human nature and politics. Like Faust, Scanlon underscored the rhetorical nature of the papers, and averred that an attention to this feature “throws more light on the specific qualities of The Federalist as a political argument” than does a strictly analytical approach.80 Scanlon’s chief contribution, however, was to illustrate how the authors’ understanding of human nature informed their arguments and guided their appeals. At the broadest level, they could assume an obvious fact: i.e., that their readers had the “capacity to be moved to action by motives of certain sorts.”
Given the variety of human motives, it was necessary for Publius to address a wide range of interests and employ different types of arguments in order to strengthen his overall appeal. Cold logic and reasoned discourse might suffice to move some readers to support the Constitution, but since men were not equally susceptible to rational persuasion, other motives had to be solicited. Furthermore, even the most dispassionate reader was subject to considerations of a more prosaic nature and could be expected to act on the basis of mixed motives. Accordingly, appeals based on reason had to be supplemented with appeals of a more direct and tangible kind. As Scanlon points out, The Federalist is replete with both, a clear indication that its authors considered it “foolish to omit any avenue of influence.” Passion no less than reason, emotion no less than logic was looked to as a primitive source of motivation, and Publius spared no pains in soliciting “the most active springs of the human heart.” (Federalist No. 27)81
While recognizing the usefulness of such appeals, the need to cultivate a disposition “favorable to the ascertainment of fact and the exercise of judgment” prevented Publius from placing too great an emphasis on non-rational motives. However, arguments grounded in an anemic rationalism—whether expressed in appeals to abstract principle, historical precedent, or theoretical propriety—could hardly be expected to provide the basis for “a correct and durable consciousness of interest” on the part of his readers. Given Publius’s tacit recognition of these limitations, Scanlon concludes, “it is not surprising that the chief rhetorical targets in The Federalist, in paper after paper, are immediate and personal interests.” The emphasis on interest, moreover, was not merely an effort to persuade on the basis of the lowest common denominator, although there is certainly no greater or more universal principle in politics. Rather, appeals to motives of self-interest, no less than appeals to reason and passion, share a common source in Publius’s understanding of the human condition, particularly in its political dimension. The rhetoric of The Federalist, then, is “fully consistent with the authors’ expressed and implied views on the subject of ‘human nature. ‘”82 As Scanlon explains:
The theory of motivation is presupposed by the rhetoric of The Federalist: it guides the authors in the selection of arguments. Human ‘rationality’ is not denied; intellectual capacities sufficient to grasp the authors arguments are clearly assumed. The arguments themselves are directed to the many sources of human action, wherever possible to those powerful sources which are most to be depended upon.83
Like Aly’s study, those of Faust and Scanlon provided persuasive grounds for a rhetorical reading of The Federalist, yet subsequent students of the papers showed little interest in building on their suggestive findings. More than two decades after Scanlon’s essay, Forrest McDonald drew attention to this general neglect, not just of The Federalist, but of the political literature of the Founding era. In the course of discussing “The Rhetoric of Alexander Hamilton,” McDonald confirmed many of the findings Aly reached in applying classical categories to Hamilton’s speeches. He concluded that Hamilton and the Founders “studied and practiced the art [of rhetoric] in accordance with the Aristotelian model . . . .”84 More significantly, McDonald placed the “classical” rhetoric of Hamilton and his colleagues on a par with their monumental practical achievements. Indeed, it was their rhetoric which made these very accomplishments possible.
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[I]t was their commitment to and practice of open, dispassionate, informed, and reasoned discussion of public questions which made their achievements possible. Their rhetoric, in other words, was not a mere by-product of their accomplishments: rather, their accomplishments were the product of their rhetorical interchange.85
In addition to illustrating the conformity of Hamilton’s writings with Aristotelian standards, his maturation as a rhetorician, and the symbiotic relationship between his oratory and statecraft, McDonald provides a compelling argument for placing greater stress on the rhetorical character of the Founders’ writings. “Historians,” he writes, “have paid too much attention to the ‘justice of their reasonsings’ and not enough to their ‘vehemence.'” In neglecting the later—the “disdain, anger, boldness, freedom, involved in a continual stream of argument”—students of the Revolutionary era had failed to credit the instrumental role of rhetoric in shaping the course of the American Founding. To seriously examine the rhetoric of the Founders, particularly as an instrument of statecraft and nation-building, would, according to McDonald, represent “an enormous contribution to our understanding of them.”86
Despite the suggestiveness of McDonald’s remarks, his call for a rhetorical approach to the political literature of the American Founding failed to resonate with students of the period. As for The Federalist specifically, a decade would pass before the papers were examined in the spirit of McDonald’s injunction. Of the numerous books and articles on The Federalist published in the 1980s, only a few bothered to address the rhetorical nature of the work.
In his preface to The Authority of Publius (1984), Albert Furtwangler did propose to “reassess these papers by looking closely at their form—by recognizing the literary strategies that shape their arguments and the conventions of political journalism which give meaning to the series as a whole.”87 Yet as an ostensible study of the work’s “rhetoric and structure,” Furtwangler’s alternative “reading” promised more than it delivered. Often indistinguishable in its analysis from conventional (non-rhetorical) approaches, The Authority of Publius suffers from a series of ambiguities. On one hand, the papers are said to “reflect a timely approach to a very particular occasion,” and “share a commonplace eighteenth-century form.” On the other hand, however, the papers are singled out as “unique among the arguments over ratification,” and credited with having “modified the tradition of eighteenth-century newspaper campaigning.” Further ambiguity is apparent in Furtwangler’s observation that The Federalist was a failure from the standpoint of “propaganda,” but as a “campaign effort” directed at confronting the objections of the Constitution’s opponents, “it is hard to see how it could have been surpassed.” Similarly, for all the “tension of arguments that are not conclusive,” the occasionally “strained, rhetorical, and legalistic” answers, the transformations “in the course of [the papers] development,” and the fact that Hamilton and Madison wrote “against their deepest convictions,” the papers “remain very consistent if one looks upon them as efforts of active statesmanship, as high political rhetoric.”88
While there are solid grounds for Furtwangler’s conclusion, it rubs against the grain of many of his specific observations. Moreover, the assertion that the “authority” of The Federalist lies less with the sanctity of its doctrines, wisdom of its insights, erudition of its authors, or soundness of its arguments, and more with Publius’s “imaginative grasp of how to address an American audience” is dubious on face—and too vague to bear scrutiny. As an epitaph for The Federalist, it is only slightly less amorphous than the claim that “the authority of Publius is strong because of his high civility.”89
Just as Furtwangler’s “reading” of Publius failed to tangibly augment our understanding of The Federalist as a work of deliberative rhetoric, Paul Peterson’s “rhetorical” reading of the tenth paper constitutes a similar disappointment. Like Furtwangler, Peterson correctly observes that the “rhetorical dimension” of the papers had been largely ignored, and proposes to “recover the rhetorical design of Federalist No. 10 and to show the relationship of that design to the essay’s theoretical teaching.”90 While his analysis represents a competent summary of Madison’s famous argument, it is largely indistinguishable from the many accounts that make no claim to “recover” the paper’s rhetorical element. No less than Furtwangler, Peterson shows no real interest in relating The Federalist to classical or conventional categories of deliberative rhetoric, and simply ignores the important work of Aly, Faust, Scanlon, and McDonald.91More substantive is Daniel Howe’s discussion of “The Political Psychology of The Federalist,” in which many of the general observations of Faust and Scanlon are recapitulated under the rubric of eighteenth-century “faculty” psychology. Drawing on the influential work of J. G. A. Pocock and Quentin Skinner, who sought to understand early modern political thought in terms of “language paradigms” and “historical setting,” Howe claimed to have found the key to “the original meaning and context” of The Federalist‘s core terminology in the “new rhetoric” associated with eighteenth-century Scottish “common-sense” philosophy.92
In addition to echoing Scanlon’s observations on Publius’s need to “combine rationality with motivation in order to persuade effectively,” Howe addressed the manner in which Publius “defined his audience” with the same intent. On one hand, Publius “credits his audience with being members of the wise and virtuous elite,” yet gives little support for the presumption that he viewed the majority of his readers, much less the American people at large, truly worthy of the appellation. As Howe notes, the frank recognition that “political institutions must take account of the perversity of human nature posed a great problem for the political advocate. How could one persuade the public to adopt the institutions it so sorely needed?” Howe claims that Publius “found the key to his rhetorical problem in eighteenth-century faculty psychology, in the concept of enlightened self-interest.” Implicit in this solution—which entailed enlisting “prudential motives on the side of reason and virtue”—was the articulation of arguments aimed at two separate audiences: “the direct audience of dispassionate inquirers and the larger, indirect audience capable of enlightened self-interest.” While the former could be expected to support the Constitution on largely rational grounds, the latter might be persuaded to do so on the basis of prudential considerations, and thereby assist in containing the “passionate multitude” who often mistook their own self-interest or nourished untoward motives. Yet unlike Hugh Blair, the influential Scot rhetorician who advocated a judicious appeal to the passions in persuasive speech, Howe observes that “Publius does not invoke them; indeed, he deplores them.”93
As we shall see, the notion that Publius does not appeal to the “passions” of his readers, that his “own rhetoric is coldly and carefully rationalistic,” will not withstand scrutiny. Yet Howe’s emphasis on the intellectual context of The Federalist‘s oratory, and the strategic considerations of its authors, provides additional grounds for a rhetorical reading of the papers. A similar impetus may be found in the work of political theorist Judith Shklar, who contra Howe argues that Publius not only made calculated appeals to the passions of his audience, but was even guilty of alarmism. Unlike the Antifederalists, who “did not see immediate dangers ahead, but anticipated distant, irreversible consequences” attending the adoption of the Constitution, it was “Publius who saw utter disaster around every corner threatening the thirteen states. Military danger from abroad, corruption by foreign agents, and war among the states were the immediate dangers in his view.” According to Shklar, it was on the basis of such fear-mongering that “Publius and the federalists generally were perceived as rash and visionary” by the Constitution’s opponents.94
In a subsequent essay on “Alexander Hamilton and the Language of Political Science,” Shklar did not directly address The Federalist but did underscore Hamilton’s vital role in “setting the terms of what is now called political science.” In contrast to McDonald and Howe, who suggest that the key elements of the Founders’ political vocabulary (e.g., reason, experience, passion, interest, virtue) have changed so dramatically that contemporary readers are bound to be mislead without the assistance of Dr. Johnson’s Dictionary or an immersion in Scottish philosophy, Shklar marvels at the “continuity of the language of social science”—that “the structure of political discourse has changed so little” since the days of the Founding. Shklar also touches on the general character of Hamilton’s discourse, locating its roots in “Baconian” science and historical reasoning.95 While Aly and McDonald summarized Hamilton’s rhetoric in greater detail and in accordance with classical categories, Shklar highlighted the deliberative dimension of The Federalist and lent support to the notion that its rhetorical nature may be sufficiently grasped without an ex