Sunday, December 27, 2020

The Federalist Papers: Instruction Manual for the Constitution

By Charles C. W. Cooke

Thursday, December 03, 2020

 

Most countries don’t have an instruction manual. But, then, most countries don’t need one. In its brilliance, in its longevity, and in its dual role as outline for legitimate government and incubator of well-considered ideals, the United States Constitution is unique. At many points in history, nations have elected to rewrite their rulebooks, but rarely have those who were charged with the task thought so seriously and assiduously while doing so. Critics of the American settlement sometimes sneer that its champions believe it to be “perfect.” We do not, although the Burkeans among us may believe that it is superior to anything that might realistically replace it. But we do believe that it is the product of genius and of deliberation, and that it ought to be taken seriously as a result. Contrary to what you’ve likely been told by our new class of Jacobins, the Constitution is not arbitrary, it is not a “big lie,” and it is not a self-interested prophylactic that was designed and sustained by the ruling class. It is a masterwork of practical application and moral philosophy. Yes, it contains compromises, but they are mostly compromises born not of grubby self-dealing or contingent circumstance but of sustained argument. Those arguments remain instructive. Better still, they remain persuasive.

 

Those looking for information about why the Constitution says what it says will find a treasure trove waiting for them in the archives. There is a well-organized set of notes from the Constitutional Convention, a less well-organized assortment of briefs from the subsequent fights over ratification, and the reams upon reams of newspaper commentary that was designed to illuminate, to obfuscate, and more. But the jewel in the crown is undoubtedly The Federalist Papers, an 85-entry compilation of contemporary missives that comprises the work done by James Madison, Alexander Hamilton, and John Jay to convince their fellow Americans that it was worth junking the existing Articles of Confederation and adopting a new constitution in its place. It is a tour de force that, among other things, helps us to understand why the American order — a mixture of humble mists-of-time traditionalism and elastic classical liberalism — ended up as it did.

 

Much hay has been made of the fact that the charter that Madison, Hamil­ton, and Jay were hawking was devised in secret by a small, self-selected group of men who had not in any meaningful sense been recruited to redraft the republic. From time to time, one even sees the process described as a “coup.” And yet the mere existence of The Federalist Papers remind us how flippant a characterization this is. As the authors make clear from the outset, ratification of the new constitution was by no means a given. The task of the project, Hamilton explains in Federalist No. 1, was “to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention.” Those objections were real, taking their most potent form in a series of eloquent counter-arguments — known today as the Anti–Federalist Papers — that would prove convincing enough to the public to guarantee that ratification would be conditioned on the adoption of the Bill of Rights, which neither Hamilton nor Madison considered necessary, given that it seemed to contradict the enumerated-powers doctrine. The question before the people, Hamilton proposed while introducing the effort, was whether Americans would enjoy a form of “good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.” And, as he was at pains to confirm, the only “force” available to him and his colleagues flowed directly from the nibs of their pens. The charter for which the trio was proselytizing may indeed have been written by a cabal. But its adoption would be debated by everyone.

 

Ultimately, the authors of The Federalist Papers prevailed — either directly, by influencing those who read them, or, more commonly, by influencing other writers who echoed their arguments around the new country. Were that the project’s sole legacy, it would have represented a smashing success — perhaps the greatest marketing exercise in history. But it has turned out to be much more than just that. Within a year of ratification, it had become apparent that, as a set of explanatory strictures, The Federalist Papers could prove key to the maintenance of the new order­ — a maintenance that, given the recent experience with the Articles of Confederation, was by no means guaranteed. And so they have continued to prove. Thomas Jefferson hoped that the new Consti­tution would continue to mean what it meant when it was ratified and thereby avoid transmutation into “blank paper by construction.” Jefferson’s wish has not always been granted, but, when it has, The Federalist Papers have played a foundational role in the preservation. Originalism is in part a historical exercise, and it relies for its integrity upon our having enough contemporary explanations, arguments, and definitions to put the matter of the Constitution’s binding meaning beyond a reasonable doubt. There is no better compendium of such explanations, arguments, and definitions than The Federalist Papers. Want to know what a word meant back in 1787? To learn the broadly understood intent and scope of a particular provision? To know what the authors and their allies explicitly did not mean — even what they resented being told they meant? To understand federalism or counter-majoritarianism or separation of powers? There’s a set of papers for that.

 

The fight for the original public meaning of the Constitution is, at root, a political fight. Whatever the truth, and whatever writings we have, it will remain the case that if the people do not want to keep their highest law, that law will eventually be discarded. But it’s a lot tougher simply to make up that meaning when the guys who wrote and defended the thing are on record with clear, concise, and definitive explanations of their own. It should be no surprise, perhaps, that, next to the Constitution itself, The Federalist Papers have been the most commonly cited source by the Supreme Court since it began pronouncing on questions of constitutional interpretation. We would be better off if the other branches paid as much attention as do the courts — and if the citizenry followed suit. There’s an education in those documents — for those who choose to take it.

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