the federalist papers on democracy

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

HISTORY: Federalist Papers

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “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.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

the federalist papers on democracy

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

the federalist papers on democracy

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Course: US history   >   Unit 3

  • The Articles of Confederation
  • What was the Articles of Confederation?
  • Shays's Rebellion
  • The Constitutional Convention
  • The US Constitution

The Federalist Papers

  • The Bill of Rights
  • Social consequences of revolutionary ideals
  • The presidency of George Washington
  • Why was George Washington the first president?
  • The presidency of John Adams
  • Regional attitudes about slavery, 1754-1800
  • Continuity and change in American society, 1754-1800
  • Creating a nation
  • The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788.
  • The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.
  • The Federalist Papers is considered one of the most significant American contributions to the field of political philosophy and theory and is still widely considered to be the most authoritative source for determining the original intent of the framers of the US Constitution.

The Articles of Confederation and Constitutional Convention

  • In Federalist No. 10 , Madison reflects on how to prevent rule by majority faction and advocates the expansion of the United States into a large, commercial republic.
  • In Federalist No. 39 and Federalist 51 , Madison seeks to “lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty,” emphasizing the need for checks and balances through the separation of powers into three branches of the federal government and the division of powers between the federal government and the states. 4 ‍  
  • In Federalist No. 84 , Hamilton advances the case against the Bill of Rights, expressing the fear that explicitly enumerated rights could too easily be construed as comprising the only rights to which American citizens were entitled.

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The first amendment, constitution 101 resources, 3.5 primary source: federalist no. 10 and federalist no. 55.

This activity is part of  Module 3: Road to the Convention  from the Constitution 101 Curriculum.  

Federalist No. 10 View the document on the National Constitution Center’s website here .

After the Constitutional Convention adjourned in September 1787, heated debate on the merits of the Constitution followed. Each state was required to vote on the ratification of the document. A series of articles signed by “Publius” appeared in New York newspapers. These Federalist Papers supported the Constitution and continued to appear through the summer of 1788. Alexander Hamilton organized them, and he and Madison wrote most of the series of 85 articles, with John Jay contributing five. These essays were read and debated, especially in New York, which included many critics of the Constitution. The Federalist Papers have since taken on immense significance, as they have come to be seen as an important early exposition on the Constitution’s meaning. In Federalist 10, Madison explores how the Constitution combats the problem of faction.

A good government will counteract the dangers of faction. Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice.

Our state constitutions improved on those that came before them, but they still have problems; they are unstable; and they often value factional interests over the common good. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarranted partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority. These must be chiefly, if not wholly, effects of the unsteadiness and injustice, with which a factious spirit has tainted our public administrations.

Factions are driven by passion and self-interest, not reason and the common good. By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

But there are ways to tame the dangers of faction. There are two methods of curing the mischiefs of faction. The one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction. The one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

One way is to take away everyone’s liberty; this is a bad idea. It could never be more truly said, than of the first remedy, that it is worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it would not be a less folly to abolish liberty, which is essential to political life because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

Another way is to give everyone the same opinions, passions, and interests; this isn’t possible in a free and diverse republic. The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self­love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to an uniformity of interests. The protection of those faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

Factions are natural, and they form easily; the most common cause is the unequal division of property. The latent causes of faction are thus sown in the nature of man; … and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good. So strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those, who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall into a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of the party and faction in the necessary and ordinary operations of government.

We can’t rely on great leaders; we won’t always have them. It is vain to say, that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.

We can’t eliminate the causes of faction; so, we must figure out how to control them. The inference to which we are brought is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.

Majority rule solves the problem of minority factions; we can vote abusive minority factions out of power; but this doesn’t solve the problem of a majority faction abusing the minority; we need to come up with a new solution to this vexing problem. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views, by regular vote. It may clog the administration; it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is the greatest object to which our inquiries are directed. …

There are a couple of ways to address this problem. By what means is the object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority, at the same time must be prevented; or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.

Direct democracy isn’t the answer. From this view of the subject, it may be concluded, that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure from the mischiefs of faction.

But representative government offers a promising path; to address the problem of faction, we need to elect representatives, and we need a large (not small) republic. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. The two great points of difference, between a democracy and a republic, are, first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and the greater sphere of country, over which the latter may be extended.

Representative government promotes a process of deliberation led by virtuous leaders; this process improves public opinion and helps to ensure that we end up with a government that serves the common good, not the immediate passions of the people or the self-interests of powerful factions; finally, contrary to the views of famous political thinkers like Montesquieu, it is helpful that we have a large republic rather than a small one. The effect of the first difference is, on the one hand, to refine and enlarge the public views, 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.... The question resulting is, whether small or extensive republics are most favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations.

There are a larger number of quality candidates in a large republic. In the first place, it is to be remarked, that however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the constituents, and being proportionately greatest in the small republic, it follows that if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater probability of a fit choice.

And in a large republic, the people are more likely to choose virtuous leaders than demagogues. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit, and the most diffusive and established characters.

Because a large republic covers more territory and contains a greater number of factions, it is more difficult for a majority faction to form and abuse power. The other point of difference is, the greater number of citizens, and extent of territory, which may be brought within the compass of republican, than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter. .. Extend the sphere, and you will take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.

Large republics are better at controlling faction than small republics. Hence, it clearly appears, that the same advantage, which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic - enjoyed by the union over the states composing it.

We have found a republican solution to the problem of faction. In the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government.

Federalist No. 55 View the document on the National Constitution Center’s website here .

On February 15, 1788, James Madison published Federalist No. 55—titled “The Total Number of the House of Representatives.” Following Shays’ Rebellion in Massachusetts, Madison and his allies pushed for a new Constitution that might address the dangers of excessive democracy, including mob violence. In Federalist No. 55, Madison addressed a range of important issues, including the proper size of the House of Representatives, the role of representation in a republican government, and the importance of civic republican virtue. Madison warned, “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” Madison had in mind a specific episode in ancient history—the push by the demagogue Cleon to mislead the massive Athenian Assembly (filled with 6,000 people) into starting the Peloponnesian War. With the new Constitution, the framers sought to create a new government strong enough to achieve common purpose and curb mob violence, but also restrained enough that it would not threaten individual rights.

Critics fear that the U.S. House of Representatives is too small to represent the interests of a large country; instead, there’s a danger that it will be filled with a small governing elite distant from the people. The number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. 

There is no right answer to how large a legislative body should be in order to govern well; this is a difficult issue, and the states themselves disagree over it. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. . . .

There are also serious dangers when a legislative body is too large; this may undermine deliberation and heighten the passions; in the end, the goal is to try to avoid a body that is either too small or too large. Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. . . .

Elections are an important check on abuses by elected officials. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. . . .

The critics of the Constitution are too pessimistic; the American people have enough virtue to make our new republic work. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

*Bold sentences give the big idea of the excerpt and are not a part of the primary source. 

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1.6: The Federalist Papers and Constitutional Government

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Authors of the Federalist Papers Illustaration

What is Federalism?

Federalism is the system of government in which sovereignty (the authority and power to govern over a group of people) is constitutionally divided between a central, or national government, and individual regional political units generally referred to as states. It is based upon democratic rules and institutions in which the power to govern is shared between national and state governments, creating a federation.

Debating a Federal System: The Federalist Papers

The most forceful defense of the new Constitution was The Federalist Papers , a compilation of 85 anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles were written by Alexander Hamilton and James Madison. They examined the benefits of the new Constitution and analyzed the political theory and function behind the various articles of the Constitution. Those opposed to the new Constitution became known as the Anti-Federalists. They generally were local rather than cosmopolitan in perspective, oriented to plantations and farms rather than commerce or finance, and wanted strong state governments and a weak national government. The Anti-Federalists believed that the Legislative Branch had too much power, and that they were unchecked. Also, the Executive Branch had too much power, they believed that there was no check on the President. The final belief was that a Bill of Rights should be coupled with the Constitution to prevent a dictator from exploiting citizens. The Federalists argued that it was impossible to list all the rights and those that were not listed could be easily overlooked because they were not in the official Bill of Rights.

What Were The Federalist Papers and Why are They Important?

The Federalist Papers were a series of essays by John Jay, Alexander Hamilton, and James Madison written for the Federalist newspaper.

The convention in Virginia began its debate before nine states had approved the Constitution, but the contest was so close and bitterly fought that it lasted past the point when the technical number needed to ratify had been reached. Nevertheless, Virginia's decision was crucial to the nation. Who can imagine the early history of the United States if Virginia had not joined the union? What if leaders like George Washington, Thomas Jefferson, and James Madison had not been allowed to hold national political office? In the end Virginia approved the Constitution, with recommended amendments, in an especially close vote (89-79). Only one major state remained; the Constitution was close to getting the broad support that it needed to be effective.

Perhaps no state was as deeply divided as New York. The nationalist-urban artisan alliance could strongly carry New York City and the surrounding region while more rural upstate areas were strongly Anti-Federalist. The opponents of the Constitution had a strong majority when the convention began and set a tough challenge for Alexander Hamilton, the leading New York Federalist. Hamilton managed a brilliant campaign that narrowly won the issue (30-27) by combining threat and accommodation. On the one hand, he warned that commercial down state areas might separate from upstate New York if it didn't ratify. On the other hand, he accepted the conciliatory path suggested by Massachusetts; amendments would be acceptable after ratification.

The debate in New York produced perhaps the most famous exploration of American political philosophy, now called The Federalist Papers . Originally they were a series of 85 anonymous letters to newspapers that were co-written by Alexander Hamilton, James Madison, and John Jay. Together, they tried to assure the public of the two key points of the Federalist agenda. First, they explained that a strong government was needed for a variety of reasons, but especially if the United States was to be able to act effectively in foreign affairs. Second, they tried to convince readers that because of the "separation" of powers in the central government, there was little chance of the national government evolving into a tyrannical power. Instead of growing ever stronger, the separate branches would provide a "check and balance" against each other, so that none could rise to complete dominance.

The influence of these newspaper letters in the New York debate is not entirely known, but their status as a classic of American political thought is beyond doubt. Although Hamilton wrote the majority of the letters, James Madison authored the ones that are most celebrated today, especially Federalist No. 10.

Here Madison argued that a larger republic would not lead to greater abuse of power (as had traditionally been thought), but actually could work to make a large national republic a defense against tyranny. Madison explained that the large scope of the national republic would prevent local interests from rising to dominance and therefore the larger scale itself limited the potential for abuse of power. By including a diversity of interests (he identified agriculture, manufacturing, merchants, and creditors, as the key ones), the different groups in a larger republic would cancel each other out and prevent a corrupt interest from controlling all the others.

Madison was one of the first political theorists to offer a profoundly modern vision of self-interest as an aspect of human nature that could be employed to make government better, rather than more corrupt. In this, he represents a key figure in the transition from a traditional Republican vision of America, to a modern Liberal one where self-interest has a necessary role to play in public life.

A Closer Look at the Federalist Papers

Let’s closely examine just three of these important documents.

Federalist #10: In this, the most famous of the Federalist Papers , James Madison begins by stating that one of the strongest arguments in favor of the Constitution is the establishment of a government capable of controlling the violence and damage caused by factions which Madison defines as groups of people who gather together to protect and promote their special economic interests and political opinions (basically political parties and special interests today). Although these factions are at odds with each other, they frequently work against the public interest and infringe upon the rights of others.

Both sides of the Constitutional debate (federalists AND anti-federalists alike) have been concerned with the political instability that these rival factions may cause. Under the Articles of Confederation, the state governments have not succeeded in solving this problem. As a matter of fact, the situation has become such a problem that people have become disillusioned with all politicians and blame the government for their problems (sound familiar?). Consequently, a form of popular government that can deal successfully with this problem has a great deal to recommend it.

Federalist #39: This essay was written to explain and defend the new form of Republican government which the Founding Fathers envisioned to be different than any other “Republic” in Europe. In the mind of Madison and the other founders, no other form of government is suited to the particular genius of the American people; only a Republican form of government can carry forward the principles fought for in the Revolution or demonstrate that self-government is both possible and practical.

Madison sees a Republican form of government as one which derives its powers either directly or indirectly from the people (which distinguishes this new form of republicanism from others that had been used in Europe). This form is administered by people who hold elected public office for a limited period of time or during good behavior. He goes on to say that no government can be called Republican that derives its power from a few people or from a favored and wealthy class (as many governments in Europe did). The Constitution conforms to these Republican principles by ensuring that the people will directly elect the House of Representatives. Additionally, the people indirectly select the senators and the president. Even the judges will reflect the choice of the people since the president appoints them, and the Senate confirms their appointment. The president, senators, and representatives hold office for a specified and limited term. Judges are appointed for life ­but subject to good behavior. The constitutional prohibition against granting titles of nobility and the guarantee to the states that they shall enjoy a republican form of government is further proof that the new government is Republican in nature.

These facts do not satisfy all people. Some people claim that the new Constitution destroyed the federal aspect of the government by taking away too much power from the states. Opponents (anti-federalists) believed that the framers established a national (unitary) form of government where the citizens' are directly acted upon by a central government as citizens of the nation rather than as citizens of the states. But the proposed government (a federal republic) would contain both national and federal characteristics and would allow for a sharing and careful balance of powers between the national government and the states. The principle of federalism (a division of power between the states and the national government) is integrated into the new Constitution and reflected in the suggested method of ratification. The delegates to the ratifying conventions would directly participate (through voting) as citizens of their states, not as citizens of the nation. Madison also points out that this new form of federal republic is also reflected in the structure of the Senate in which the states are equally represented. Since the states would retain certain exclusive and important powers, this is to be considered further proof of the federal nature of the proposed government.

Madison goes on to concede that the new Constitution does exhibit national (central government) features. Madison finishes by reaching the conclusion that the government would be BOTH national and federal. In the operation of its powers, it is a nation; in the extent of its power, it is federal.

Federalist # 51: In this essay, James Madison explains and defends the checks and balances system which would prove to be one of the most important protections and limits included in the Constitution. Each branch of government would be constructed so that its power would have checks over the power of the other two branches. Also, each branch of government is to be subject to the authority of the people who are the legitimate source of authority for the United States government and its new Constitution.

Madison also goes on to discuss the way a republican government can serve as a check on the power of factions, and the tyranny of the majority which would limit the ability of the majority from imposing their will on the minority unjustly (like a tyrant or despot imposing his will over his subjects).

Madison’s conclusion is that all of the Constitution’s checks and balances would serve to preserve liberty by ensuring justice. Madison explained, “Justice is the end of government. It is the end of civil society.” Madison’s political theory is based on Montesquieu’s The Spirit of the Laws on the Founders .

The Impact of the Federalist Papers

The Federalist Papers had an immediate impact on the ratification debate in New York and in the other states. The demand for reprints was so great that one New York newspaper publisher printed the essays together in two volumes entitled The Federalist, A Collection of Essays Written in Favor of the New Constitution, By a Citizen of New York . By this time, the identity of "Publius," never a well-kept secret, was pretty well known. The Federalist , also called The Federalist Papers , has served two very different purposes in American history. The 85 essays succeeded in persuading doubtful New Yorkers to ratify the Constitution. Today, The Federalist Papers help us to more clearly understand what the writers of the Constitution had in mind when they drafted that amazing document over 200 years ago.

From these essays, Americans have received a gift from our Founding Fathers. Whenever we, as a nation, need to consider what the original intent and meaning of the Constitution was more than 200 years ago, we simply can go back to these documents and remind ourselves exactly what our founders were thinking and what was intended without any question as to meaning or design.

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Study/Discussion Questions

For each of the following terms, write a sentence which uses or describes the term in your own words.

1. Why has federalism been such a major source of conflict throughout the history of the United States?

2. Why are the Federalist Papers important to our Constitutional system?

3. Compare the views of the Federalists with those of the Anti-Federalists.

4. How do Federalist Papers 10, 39 and 51 contribute to our understanding of the Constitution and the issue of federalism?

5. How would you describe the impact of the Federalist Papers on American government today? What do you think our governmental system would be like without them?

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‘America Is a Republic, Not a Democracy’ Is a Dangerous—And Wrong—Argument

Enabling sustained minority rule at the national level is not a feature of our constitutional design, but a perversion of it.

An illustration of columns, the Founding Fathers, and the Constitution

Dependent on a minority of the population to hold national power, Republicans such as Senator Mike Lee of Utah have taken to reminding the public that “we’re not a democracy.” It is quaint that so many Republicans, embracing a president who routinely tramples constitutional norms, have suddenly found their voice in pointing out that, formally, the country is a republic. There is some truth to this insistence. But it is mostly disingenuous. The Constitution was meant to foster a complex form of majority rule, not enable minority rule.

The founding generation was deeply skeptical of what it called “pure” democracy and defended the American experiment as “wholly republican.” To take this as a rejection of democracy misses how the idea of government by the people, including both a democracy and a republic, was understood when the Constitution was drafted and ratified. It misses, too, how we understand the idea of democracy today.

George Packer: Republicans are suddenly afraid of democracy

When founding thinkers such as James Madison spoke of democracy, they were usually referring to direct democracy, what Madison frequently labeled “pure” democracy. Madison made the distinction between a republic and a direct democracy exquisitely clear in “ Federalist No. 14 ”: “In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.” Both a democracy and a republic were popular forms of government: Each drew its legitimacy from the people and depended on rule by the people. The crucial difference was that a republic relied on representation, while in a “pure” democracy, the people represented themselves.

At the time of the founding, a narrow vision of the people prevailed. Black people were largely excluded from the terms of citizenship, and slavery was a reality, even when frowned upon, that existed alongside an insistence on self-government. What this generation considered either a democracy or a republic is troublesome to us insofar as it largely granted only white men the full rights of citizens, albeit with some exceptions. America could not be considered a truly popular government until the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which commanded equal citizenship for Black Americans. Yet this triumph was rooted in the founding generation’s insistence on what we would come to call democracy.

The history of democracy as grasped by the Founders, drawn largely from the ancient world, revealed that overbearing majorities could all too easily lend themselves to mob rule, dominating minorities and trampling individual rights. Democracy was also susceptible to demagogues—men of “factious tempers” and “sinister designs,” as Madison put it in “Federalist No. 10”—who relied on “vicious arts” to betray the interests of the people. Madison nevertheless sought to defend popular government—the rule of the many—rather than retreat to the rule of the few.

American constitutional design can best be understood as an effort to establish a sober form of democracy. It did so by embracing representation, the separation of powers, checks and balances, and the protection of individual rights—all concepts that were unknown in the ancient world where democracy had earned its poor reputation.

In “Federalist No. 10” and “Federalist No. 51,” the seminal papers, Madison argued that a large republic with a diversity of interests capped by the separation of powers and checks and balances would help provide the solution to the ills of popular government. In a large and diverse society, populist passions are likely to dissipate, as no single group can easily dominate. If such intemperate passions come from a minority of the population, the “ republican principle ,” by which Madison meant majority rule , will allow the defeat of “ sinister views by regular vote .” More problematic are passionate groups that come together as a majority. The large republic with a diversity of interests makes this unlikely, particularly when its separation of powers works to filter and tame such passions by incentivizing the development of complex democratic majorities : “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.” Madison had previewed this argument at the Constitutional Convention in 1787 using the term democracy , arguing that a diversity of interests was “the only defense against the inconveniences of democracy consistent with the democratic form of government.”

Jeffrey Rosen: America is living James Madison’s nightmare

Yet while dependent on the people, the Constitution did not embrace simple majoritarian democracy. The states, with unequal populations, got equal representation in the Senate. The Electoral College also gave the states weight as states in selecting the president. But the centrality of states, a concession to political reality, was balanced by the House of Representatives, where the principle of representation by population prevailed, and which would make up the overwhelming number of electoral votes when selecting a president.

But none of this justified minority rule, which was at odds with the “republican principle.” Madison’s design remained one of popular government precisely because it would require the building of political majorities over time. As Madison argued in “ Federalist No. 63, ” “The cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers.”

Alexander Hamilton, one of Madison’s co-authors of The Federalist Papers , echoed this argument. Hamilton made the case for popular government and even called it democracy: “A representative democracy, where the right of election is well secured and regulated & the exercise of the legislative, executive and judiciary authorities, is vested in select persons, chosen really and not nominally by the people, will in my opinion be most likely to be happy, regular and durable.”

The American experiment, as advanced by Hamilton and Madison, sought to redeem the cause of popular government against its checkered history. Given the success of the experiment by the standards of the late 18th and early 19th centuries, we would come to use the term democracy as a stand-in for representative democracy, as distinct from direct democracy.

Consider that President Abraham Lincoln, facing a civil war, which he termed the great test of popular government, used constitutional republic and democracy synonymously, eloquently casting the American experiment as government of the people, by the people, and for the people. And whatever the complexities of American constitutional design, Lincoln insisted , “the rule of a minority, as a permanent arrangement, is wholly inadmissible.” Indeed, Lincoln offered a definition of popular government that can guide our understanding of a democracy—or a republic—today: “A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.”

The greatest shortcoming of the American experiment was its limited vision of the people, which excluded Black people, women, and others from meaningful citizenship, diminishing popular government’s cause. According to Lincoln, extending meaningful citizenship so that “all should have an equal chance” was the basis on which the country could be “saved.” The expansion of we the people was behind the Fourteenth and Fifteenth Amendments ratified in the wake of the Civil War. The Fourteenth recognized that all persons born in the U.S. were citizens of the country and entitled to the privileges and immunities of citizenship. The Fifteenth secured the vote for Black men. Subsequent amendments, the Nineteenth, Twenty-Fourth, and Twenty-Sixth, granted women the right to vote, prohibited poll taxes in national elections, and lowered the voting age to 18. Progress has been slow— and s ometimes halted, as is evident from current efforts to limit voting rights —and the country has struggled to become the democratic republic first set in motion two centuries ago. At the same time, it has also sought to find the right republican constraints on the evolving body of citizens, so that majority rule—but not factious tempers—can prevail.

Adam Serwer: The Supreme Court is helping Republicans rig elections

Perhaps the most significant stumbling block has been the states themselves. In the 1790 census, taken shortly after the Constitution was ratified, America’s largest state, Virginia, was roughly 13 times larger than its smallest state, Delaware. Today, California is roughly 78 times larger than Wyoming. This sort of disparity has deeply shaped the Senate, which gives a minority of the population a disproportionate influence on national policy choices. Similarly, in the Electoral College, small states get a disproportionate say on who becomes president. Each of California’s electoral votes is estimated to represent 700,000-plus people, while one of Wyoming’s speaks for just under 200,000 people.

Subsequent to 1988, the Republican presidential candidate has prevailed in the Electoral College in three out of seven elections, but won the popular vote only once (2004). If President Trump is reelected, it will almost certainly be because he once again prevailed in the Electoral College while losing the popular vote. If this were to occur, he would be the only two-term president to never win a plurality of the popular vote. In 2020, Trump is the first candidate in American history to campaign for the presidency without making any effort to win the popular vote, appealing only to the people who will deliver him an Electoral College win. If the polls are any indication, more Americans may vote for Vice President Biden than have ever voted for a presidential candidate, and he could still lose the presidency. In the past, losing the popular vote while winning the Electoral College was rare. Given current trends, minority rule could become routine. Many Republicans are actively embracing this position with the insistence that we are, after all, a republic, not a democracy.

They have also dispensed with the notion of building democratic majorities to govern, making no effort on health care, immigration, or a crucial second round of economic relief in the face of COVID-19. Instead, revealing contempt for the democratic norms they insisted on when President Barack Obama sought to fill a vacant Supreme Court seat, Republicans in the Senate have brazenly wielded their power to entrench a Republican majority on the Supreme Court by rushing to confirm Justice Amy Coney Barrett. The Senate Judiciary Committee vote to approve Barrett also illuminates the disparity in popular representation: The 12 Republican senators who voted to approve of Barrett’s nomination represented 9 million fewer people than the 10 Democratic senators who chose not to vote. Similarly, the 52 Republican senators who voted to confirm Barrett represented 17 million fewer people than the 48 senators who voted against her. And the Court Barrett is joining, made up of six Republican appointees (half of whom were appointed by a president who lost the popular vote) to three Democratic appointees, has been quite skeptical of voting rights—a severe blow to the “democracy” part of a democratic republic.  In 2013’s Shelby County v. Holder , the Court struck down a section of the Voting Rights Act of 1965 that allowed the federal government to preempt changes in voting regulations from states with a history of racial discrimination.

As Adam Serwer recently wrote in these pages , “ Shelby County ushered in a new era of experimentation among Republican politicians in restricting the electorate, often along racial lines.” Republicans are eager to shrink the electorate. Ostensibly seeking to prevent voting fraud, which studies have continually shown is a nonexistent problem, Republicans support efforts to make voting more difficult—especially for minorities, who do not tend to vote Republican. The Republican governor of Texas, in the midst of a pandemic when more people are voting by mail, limited the number of drop-off locations for absentee ballots to one per county. Loving, with a population of 169, has one drop-off location; Harris, with a population of 4.7 million (majority nonwhite), also has one drop-off location. States controlled by Republicans, such as Georgia, Louisiana, and Texas, have also closed polling places, making voters in predominantly minority communities stand in line for hours to cast their ballot.

Who counts as a full and equal citizen—as part of we the people —has shrunk in the Republican vision. Arguing against statehood for the District of Columbia, which has 200,000 more people than the state of Wyoming, Senator Tom Cotton from Arkansas said Wyoming is entitled to representation because it is “a well-rounded working-class state.” It is also overwhelmingly white. In contrast, D.C. is 50 percent nonwhite.

High-minded claims that we are not a democracy surreptitiously fuse republic with minority rule rather than popular government. Enabling sustained minority rule at the national level is not a feature of our constitutional design, but a perversion of it. Routine minority rule is neither desirable nor sustainable, and makes it difficult to characterize the country as either a democracy or a republic. We should see this as a constitutional failure demanding constitutional reform.

This story is part of the project “ The Battle for the Constitution ,” in partnership with the National Constitution Center .

Teaching American History

Federalist 10: Democratic Republic vs. Pure Democracy

 by natalie bolton and gordon lloyd, introduction:.

To assist teachers in teaching the ratification of the U.S. Constitution, Professor Gordon Lloyd  has created a website in collaboration with the Ashbrook Center at Ashland University on the Federalist and Antifederalist Debates . Professor Lloyd organizes the content of the debates in various ways on the website. Two lesson plans have been created to align with two of the most noted essays high school students are encouraged to read, Federalist 10 and Federalist 51 . Within each lesson students will use a Federalist Paper as their primary source for acquiring content.

Guiding Question:

Why can a republic protect liberties better than a democracy?

Learning Objectives:

After completing this lesson, students should be able to: Define faction in Federalist 10 . Analyze present day issues and determine if they qualify as a faction as defined in Federalist 10 . Explain why Madison advocated for a democratic republic form of government over a pure democracy in Federalist 10 .

Background Information for the Teacher:

The years were 1787 and 1788. Along with the debate over the Constitution that was taking place in the state legislatures, an “out-of-doors” debate raged in newspapers and pamphlets throughout America’s thirteen states following the Constitutional Convention over the Constitution that had been proposed. Origin of The Federalist The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal , edited by Thomas Greenleaf, 2) Independent Journal , edited by John McLean, 3) New York Advertiser , edited by Samuel and John Loudon, and 4) Daily Advertiser , edited by Francis Childs. Initially, they were intended to be a twenty essay response to the Antifederalist attacks on the Constitution that were flooding the New York newspapers right after the Constitution had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27, George Mason’s objections were in circulation and the Brutus essays were launched on October 18. The number of essays in The Federalist was extended in response to the relentless, and effective, Antifederalist criticism of the proposed Constitution. McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist appeared between January 11, and April 2, 1788. On May 28, McLean took Federalist 37-77 as well as the yet to be published Federalist 78-85 and issued them all as Volume 2 of The Federalist . Between June 14 and August 16, these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet . The Status of The Federalist One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see The Federalist as incoherent; didn’t Hamilton and Madison disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last part of an essay was being written as the first part was being typed. 1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover, because Hamilton and Madison parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with certain haste doesn’t mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is actually the final draft of an essay that originated in Madison’s Vices in 1787, matured at the Constitutional Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay’s essays focus on foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and Hamilton tends to focus on the institutional features of federalism and the separation of powers. I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The Federalist now acquired a “timeless” and higher purpose, a sort of icon status equal to the very Constitution that it was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his readers to contemplate the great difficulty of founding. Federalist 38 , echoing Federalist 1 , points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the Constitution as the work of “demigods,” and The Federalist “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive to readers of every generation. Authorship of The Federalist A second question about The Federalist is how many essays did each person write? James Madison—at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, “Publius.” So one answer to the question is that how many essays each person wrote doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the iconic status of The Federalist , there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison’s last contribution was Federalist 63 , leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the Virginia ratifying convention . There is also widespread agreement that Madison wrote the first thirteen essays on the great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have persuasively been resolved in favor of Madison. Outline of The Federalist A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak. Martin Diamond was one of the earliest scholars to break The Federalist into its component parts. He identified Union as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last forty-nine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The first three topics outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the Articles of Confederation , and 3) the need for a government at least as energetic as the one proposed. The opening paragraph of Federalist 15 summarizes the previous fourteen essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.'” So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly, Federalist 23 opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed… is the point at the examination of which we are now arrived.” Thus Federalist 15-22 covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism. The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in Federalist 1 : 4) the Constitution conforms to the true principles of republicanism , 5) the analogy of the Constitution to state governments, and 6) the added benefits from adopting the Constitution. Let’s work our way backward. In Federalist 85 , we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist . I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51, reserving the appellation Republicanism for essays 52-84. This substitution is similar to the “Merits of the Constitution” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with Federalist 52 . Taken from the Introduction to The Federalist .

Preparing to Teach this Lesson:

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself with Madison’s Notes on the Constitutional Convention of 1787 on the following days outlined below. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama . Additionally, the teacher should cover content related to Federalist and Antifederalist debates that occurred prior to Federalist 10 being published. Three activities are outlined below and should be implemented in order. Activity 1: Define faction in Federalist 10 . Activity 2: Analyze present day issues and determine if they qualify as a faction as defined in Federalist 10 . Activity 3: Analyzing Federalist 10 using APPARTS. For all activities, students will use Federalist 10 . To assist students in reading Federalist 10 , a paragraph-by-paragraph summary has been provided by Gordon Lloyd.

Analyzing Primary Sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets . Finally, History Matters offers pages on “ Making Sense of Maps ” and “ Making Sense of Oral History ” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities:

Activity 1: Define faction in Federalist 10

Time required for activity: In class activity 20 minutes.

The teacher will open day one of the lesson by sharing that Federalist 10 is one of 85 essays advocating for the ratification of the United States Constitution. Federalist 10 was written by James Madison and published on November 22, 1787 under the pseudonym Publius. In this essay, Madison addresses the question of how to guard against “factions,” or groups of citizens, with interests that are contrary to the rights of others or the interests of the community as a whole. Madison defined factions as groups of citizens with opinions, passions, or interests contrary to the interests of others or the well-being of others. These groups of citizens saw factions as irreconcilable differences that could not be negotiated or compromised (i.e. war, divorce).

This activity serves as an introduction to the lesson focusing on student understanding of the word faction. The teacher will ask students to move to a designated corner of the room based on their interest in completing one of the following products: illustration/drawing, mime/monument, Public Service Announcement (PSA), and written flyer. Each corner of the classroom will represent a product.

The teacher will tell students they have 10 minutes to create their designated product. All students will respond to the same question, “What is a faction?” Students will answer the question as an individual, in a small group, or whole group based on their interests and readiness. Students should use any resources they have available to assist in completing the activity. Students will then be asked to share their products with the class.

The teacher will then debrief the activity with students as they complete a verbal and visual word association on faction as a reflection activity ( see handout ). The teacher can use this completed task as a formative assessment for student understanding of the meaning of faction.

Activity 2: Factions and Current Issues

Time required for activity: 20 minutes To assist students in understanding factions that are present today, students will evaluate and discuss eight present day issues and determine if they qualify as a faction, as defined by Madison in Federalist 10 . Students will be asked to rate each issue on a three point scale with the anchors agree and disagree. The midpoint of the scale will read, don’t know. Teachers should give students the Current Issues Spectrum handout and ask them to read and rate the eight issues followed by an explanation. The teacher should make a poster for each of the current issues and have students place a mark and determine if the current issue is or is not a faction. Students can mark with a dot, post-it note, or marker. After students make their decisions, the class should discuss why they believe the issue is or is not a faction. The teacher should wrap-up the class discussion by asking students, “If the government has to make decisions on how to address the current issue, is it better to have every individuals voice be heard on every current event issue or is it better to have a representative from each of the anchors on the scale of each issue share their opinion? Are voices more powerful if they come from a large group of people together or from people who share the same ideas but live far apart from one another?

Activity 3: Interpreting and Evaluating Federalist 10

Time required for activity: In class reading assignment and completing an APPARTS graphic organizer, one 45 minute class period. Students may complete individually or in small groups. The teacher should remind students that Federalist 10 is one of 85 essays advocating for the ratification of the United States Constitution. Federalist 10 was written by James Madison and published on November 22, 1787 under the pseudonym Publius. In this essay, Madison addresses the question of how to guard against “factions,” or groups of citizens, with interests that are contrary to the rights of others or the interests of the community as a whole.

APPARTS Graphic Organizer

To help students understand the main ideas that emerged from Federalist 10, ask students to read Federalist 10 and complete the APPARTS graphic organizer handout . Students will use the APPARTS strategy to explain why James Madison advocated for a democratic republic form of government over a pure democracy in Federalist 10. Students may complete this task individually or in small groups.

Note: APPARTS is a strategy often used in Advanced Placement courses to analyze primary sources.

USING APPARTS TO ANALYZE PRIMARY SOURCE DOCUMENTS

To understand history or politics it is essential that you learn to critically examine significant primary source documents.

APPARTS is an “easy to remember” acronym for the following:

AUTHOR Who created the source? What do you know about the author? What is the author’s point of view?

PLACE AND TIME Where and when was the source produced? How might this affect the meaning of the source?

PRIOR KNOWLEDGE Beyond information about the author and the context of its creation, what do you know that would help you further understand the primary source? For example, do you recognize any symbols and recall what they represent?

AUDIENCE For whom was the source created and how might this affect the reliability of the source?

REASON Why was this source produced at the time it was produced?

THE MAIN IDEA What main point is the source trying to convey? What is the central message of the document?

SIGNIFICANCE Why is this source important? What inferences can you draw from this document? Ask yourself, “So what?” What should a student of history or politics take away from the analysis of this document?

Students may read the full-text of Federalist 10 or they can read a paragraph-by-paragraph summary written by Gordon Lloyd.

Depending on student content vocabulary readiness the teacher may need to review vocabulary used in Federalist 10. A teacher resource has been created using the Federalist 10 summary to review vocabulary using a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling, during reading (guided practice) and after reading (guided practice).

Assessment:

In 4-5 paragraphs, using your APPARTS analysis, write a reply to James Madison explaining if you agree or disagree with his perspective on the best form of government for the United States to protect individual liberties.

Extending the Lesson:

Extension 1: Compare how Madison discusses factions in Madison’s Vices , his June 6th speech during the Constitutional Convention of 1787, and Federalist 10. Extension 2: Do you think that our government today effectively guards against factions? Why or why not? Explain. Extension 3: Do you think that if a government official went about gaining public support using the methods Madison did to ratify the Constitution, would they work into today’s society? Why or why not? Do you think this is good or bad? Why or why not?

Related EDSITEment Lesson Plans:

  • The Federalist Debates: Balancing Power between State and Federal Governments

Selected Websites:

  • James Madison, Federalist 10
  • James Madison, Federalist 51

Standards Alignment:

  • CIVICED (9-12) I What are Civic Life, Politics, and Government?
  • CIVICED (9-12) II What are the Foundations of the American Political System?
  • CIVICED (9-12) III How Does the Government Established by the Constitution Embody the Purposes, Values, and Principles of American Democracy?
  • CIVICED (9-12) V What are the Roles of the Citizen in American Democracy?
  • NCSS-10 Civic ideals and practices. Citizenship in a democratic republic.
  • NCSS-4 Individual development and identity.
  • NCSS-5 Individuals, groups, and institutions.
  • NCSS-6 Power, authority, and governance.

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the federalist papers on democracy

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Module 7: Democracy

7.2 Madison on Democracy

About this text.

Next we turn to two  Federalist Papers written by James Madison.  Notice Madison’s rejection of democracy in  Federalist 10.   He argues that a republic, not a democracy, offers a better remedy for the vice of “faction.”  In  Federalist  51, Madison explains the complex system of separation of powers and checks and balances created by the constitution.  Pay particular attention to his argument that “ambition must be made to counteract ambition.”

James Madison, Federalist 10 and 51 ( source )

The federalist papers : no. 10, the same subject continued the union as a safeguard against domestic faction and insurrection from the new york packet. friday, november 23, 1787..

To the People of the State of New York:

AMONG the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS .

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution . When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, 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. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

The Federalist Papers : No. 51

The structure of the government must furnish the proper checks and balances between the different departments, from the new york packet. friday, february 8, 1788..

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Political Science 160 Copyright © by Zumbrunnen, John is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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The federalist number 14, [30 november] 1787, the federalist number 14.

[30 November 1787]

We have seen the necessity of the union as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our enquiries, is to take notice of an objection, that may be drawn from the great extent of country which the union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new constitution are availing themselves of a prevailing prejudice, with regard to the practicable sphere of republican administration, in order to supply by imaginary difficulties, the want of those solid objections, which they endeavour in vain to find. 1

The error which limits republican government to a narrow district, has been unfolded and refuted in preceding papers. I remark here only, that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy: And applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents. A democracy consequently must be confined to a small spot. A republic may be extended over a large region.

To this accidental source of the error may be added, the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute, or limited monarchy, they have endeavoured to heighten the advantages or palliate the evils of those forms; by placing in comparison with them, the vices and defects of the republican, and by citing as specimens of the latter, the turbulent democracies of ancient Greece, and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic, observations applicable to a democracy only, and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.

Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded at the same time wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which, the will of the largest political body may be concentred, and its force directed to any object, which the public good requires: America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented, that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.

As the natural limit of a democracy is that distance from the central point, which will just permit the most remote citizens to assemble as often as their public functions demand; and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre, which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said, that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the union; that during the term of thirteen years, the representatives of the states have been almost continually assembled; and that the members from the most distant states are not chargeable with greater intermissions of attendance, than those from the states in the neighbourhood of Congress.

That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the union. The limits, as fixed by the treaty of peace are on the East the Atlantic, on the South the latitude of thirty one degrees, on the West the Mississippi, and on the North an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The Southern shore of lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy three common miles; computing it from thirty one to forty two degrees to seven hundred, sixty four miles and an half. Taking the mean for the distance, the amount will be eight hundred, sixty eight miles and three fourths. The mean distance from the Atlantic to the Mississippi, does not probably exceed seven hundred and fifty miles. On a comparison of this extent, with that of several countries in Europe, the practicability of rendering our system commensurate to it, appears to be demonstrable. It is not a great deal larger than Germany, where a diet, representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the Northern extremity of the island, have as far to travel to the national council, as will be required of those of the most remote parts of the union. 2

Favourable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory.

In the first place it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments which can extend their care to all those other objects, which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular states, its adversaries would have some ground for their objection, though it would not be difficult to show that if they were abolished, the general government would be compelled by the principle of self preservation, to reinstate them in their proper jurisdiction.

A second observation to be made is, that the immediate object of the federal constitution is to secure the union of the Thirteen primitive States, which we know to be practicable; and to add to them such other states, as may arise in their own bosoms, or in their neighbourhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory, which lie on our north-western frontier, must be left to those whom further discoveries and experience will render more equal to the task.

Let it be remarked in the third place, that the intercourse throughout the union will be daily facilitated by new improvements. Roads will every where be shortened, and kept in better order; accommodations for travellers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.

A fourth and still more important consideration is, that as almost every state will on one side or other be a frontier, and will thus find in a regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the states which lie at the greatest distance from the heart of the union, and which of course may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia or the states forming our Western or North-Eastern borders, to send their representatives to the seat of government, but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expence of those precautions, which may be dictated by the neighbourhood of continual danger. If they should derive less benefit therefore from the union in some respects, than the less distant states, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.

I submit to you my fellow citizens, these considerations, in full confidence that the good sense which has so often marked your decisions, will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scenes into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great respectable and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defence of their sacred rights, consecrate their union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rending us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected merely because it may comprise what is new? 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? To this manly spirit, posterity will be indebted for the possession, and the world for the example of the numerous innovations displayed on the American theatre, in favour of private rights and public happiness. 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 labouring 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. They formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the union, this was the work most difficult to be executed, this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.

McLean description begins The Federalist, A Collection of Essays, written in favour of the New Constitution, By a Citizen of New-York. Printed by J. and A. McLean (New York, 1788). description ends , I, 79–86.

1 .  A common theme in Antifederalist arguments against the Constitution was that a republican government must be confined to a small geographical area and operate over a homogeneous population (Kenyon, The Antifederalist , pp. xxxix–xlviii). Perhaps the fullest development of this theme is to be found in the first letter of “Brutus,” which appeared in the N.Y. Journal, and Weekly Register of 18 Oct. 1787. JM evidently referred to this essay in his letter to Randolph of 21 Oct. 1787 .

2 .  See JM’s Additional Memorandums on Ancient and Modern Confederacies, ante 30 Nov. 1787 , in which he listed the geographic dimensions of these European countries.

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How hamilton warned in the federalist papers against donald trump.

“… of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” — Alexander Hamilton, The Federalist Papers, #1

Alexander Hamilton might never have come to this country if it were not for a horrific hurricane and his precocious mastery of rhetoric as a teenager.

That’s one of the many remarkable things I learned when I took my mother to see the Pulitzer-Prize-winning Broadway play, “Hamilton,” a retelling of the founding father’s life, loves, and losses entirely in rap and song. Unless you’ve been unintentionally abandoned on Mars, you probably know that the musical was written and scored entirely by Lin-Manuel Miranda, a MacArthur genius award-winner who also plays the lead role.

Sunday night, Hamilton won 11 Tony Awards , including Best Musical. Leslie Odom Jr. won the Tony for Best Leading Actor in a Musical for his portrayal of Hamilton’s fatal frenemy, Aaron Burr. Odom said last week that what playing Burr has taught him is to ask the question: “What is the future going to say about us now, what are our kids going to look at us and say, ‘how could you not stop that person from getting into power, how could you not stop that environmental disaster that you saw coming a mile away’?”

Lin-Manuel Miranda won two Tonys, including Best Original Score (Music and/or Lyrics). In accepting that award, he read an original and moving sonnet :

Buy the soundtrack — if you are someone who cares about words, who cares about politics, or who just wants to know how unimaginably far one can push the boundaries of the human imagination. Your kids will fall in love with it, as my daughter did, and actually want to know more about the early history of this nation.

Hearing and seeing Hamilton is one of those rare ‘aha’ moments in life — like visiting the Grand Canyon for the first time — that actually exceeds the ridiculously-high expectations you have for it. The musical, like the Canyon, beggars all description, as Shakespeare might say.

“Hamilton” is probably as close as we can get to an original work by the Bard of Avon — and not just because the story of Hamilton’s rise and fall is in many respects Shakespearian in its scope and tragedy, as well as in its discourse on power. The language of song, and rap in particular, is like Shakespeare’s language in his plays, relying as they both do on mastery of the many, many figures of speech.

And that makes sense since the figures of speech (aka “rhetoric”) were themselves derived from the memory tricks used by the great bards, like Homer, to remember their long epic poems and to make those poems memorable and emotionally compelling to the audience — as I discussed in my 2012 book on the figures, Language Intelligence : Lessons on Persuasion from Jesus, Shakespeare, Lincoln, and Lady Gaga .

Not coincidentally, we might never have heard of Alexander Hamilton were it not for his mastery of rhetoric — and for the “most dreadful hurricane known in the memory of man,” as the Royal Danish American Gazette described the storm that devastated St. Croix the evening of August 31, 1772.

The Gazette wrote that the devastation wrought by the storm “would beggar all description.” But in fact there was one young man on the island, the illegitimate son of a father who abandoned him and whose mother died soon after, whose facility with words belied that claim.

“The roaring of the sea and wind — fiery meteors flying about in the air — the prodigious glare of almost perpetual lightning — the crash of the falling houses — and the ear-piercing shrieks of the distressed, were sufficient to strike astonishment into Angels.” So wrote Hamilton in a letter to his father that masterfully combined the literal and the figurative.

Hamilton personified the storm as Death itself: “Death comes rushing on in triumph veiled in a mantle of tenfold darkness. His unrelenting scythe, pointed, and ready for the stroke.” And he extended the metaphor, “On his right hand sits destruction, hurling the winds and belching forth flames: Calamity on his left threatening famine disease and distress of all kinds.”

Hamilton was only 17 years old! The letter ended up being published by the Gazette. Ron Chernow, whose authoritative 2004 biography Alexander Hamilton was the source material for the musical, explains what happened next:

Hamilton did not know it, but he had just written his way out of poverty. This natural calamity was to prove his salvation. His hurricane letter generated such a sensation — even the island’s governor inquired after the young author’s identity — that a subscription fund was taken up by local businessmen to send this promising youth to North America to be educated. This generosity was all the more remarkable given the island’s dismal state.

Such is the power of rhetoric and the figures of speech to alter the course of a life that in turn altered the course of a nation.

The Dark Side Of Rhetoric

The greatest speech-makers of all time from Jesus and Cicero to Shakespeare to Lincoln and Churchill used the figures of speech and fully understood their power. For instance, while a soldier in India, a prescient 22-year-old Winston Churchill wrote an unpublished essay, “ The Scaffolding of Rhetoric ” that explains:

Of all the talents bestowed upon men, none is so precious as the gift of oratory. He who enjoys it wields a power more durable than that of a great king…. The subtle art of combining the various elements that separately mean nothing and collectively mean so much in an harmonious proportion is known to a very few…. the student of rhetoric may indulge the hope that Nature will finally yield to observation and perseverance, the key to the hearts of men.”

At the same time, the masters of rhetoric understood how easily it could be misused for demagoguery — something we’ve seen Donald Trump do .

Donald Trump May Sound Like A Clown, But He Is A Rhetoric Pro Like Cicero “An emotional speaker always makes his audience feel with him, even when there is nothing in his arguments; which is… thinkprogress.org Aristotle, in “Rhetoric,” the first in-depth study of the subject, wrote, “An emotional speaker always makes his audience feel with him, even when there is nothing in his arguments; which is why many speakers try to overwhelm their audience by mere noise.” Plato warned that a rhetorician could persuade any audience, no matter how intelligent, that he was more of a doctor than a real doctor.

“But when a certain agreeableness of manner — a depraved imitation of virtue — acquired the power of eloquence unaccompanied by any consideration of moral duty,” wrote a 21-year-old Cicero in a handbook for orators, “then low cunning supported by talent grew accustomed to corrupt cities and undermine the lives of men.”

Sound like anyone we know today?

Churchill explained in the opening paragraph of his 1897 essay on the kind of person who abuses the power of rhetoric:

He is an independent force in the world. Abandoned by his party, betrayed by his friends, stripped of his offices, whoever can command this power is still formidable…. A meeting of grave citizens, protected by all the cynicism of these prosaic days, is unable to resist its influence. From unresponsive silence they advance to grudging approval and thence to complete agreement with the speaker. The cheers become louder and more frequent; the enthusiasm momentarily increases; until they are convulsed by emotions they are unable to control and shaken by passions of which they have resigned the direction.

Sound familiar?

This abuse of power is a key reason founding fathers like Hamilton feared men “commencing demagogues, and ending tyrants,” as he wrote in the “ The Federalist #1 ” the first of the 85 “Federalist Papers” that promoted ratification of the U.S. Constitution. The Papers were Hamilton’s idea, and he wrote most of them. He recruited John Jay who wrote a handful, and James Madison who wrote the rest (a few jointly with Hamilton).

In a March Washington Post op-ed headlined, “Trump is the demagogue that our Founding Fathers feared,” Michael Gerson, the former speechwriter for President George W. Bush, quotes Federalist 10: “Men of factious tempers, of local prejudices, or of sinister designs may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.”

A demagogue who betrays the interests of the people poses a considerably graver risk today than two centuries ago because the threats we face, including nuclear war and human-caused climate change, are more existential in nature.

On Climate, Trump Promises To Let The World Burn Climate by CREDIT: AP Photo/Charles Rex Arbogast President Obama’s climate change policies would be undone. Regulations… thinkprogress.org Trump has declared that if elected President, he would use all the powers of the office to block both national and global action on climate change — including EPA’s Clean Power Plan, all domestic climate-related regulations, and the Paris climate agreement.

The result, as I’ve discussed , would be a world with dozens of Syrias and Darfurs and Pakistani mega-floods, of countless environmental refugees — hundreds of millions before century’s end — all clamoring to occupy the parts of the developed world that aren’t flooded or Dust-Bowlified, including this country. And the worst impacts would be irreversible on a timescale of centuries if not millennia.

It would be the end of America as we have come to know it, an end of the America that the founding fathers strove to create and protect. What would the future say — what would our children say — if we did not prevent this disaster that we can all see coming a mile away?

Majority Rule and the Federalist Papers : Democracy , Equality, and Constitutionalism

By James Lindley Wilson

J.D., Yale Law School

Ph.D. Candidate Department of Politics Princeton University

130 Corwin Hall Princeton, NJ 08544-1012

[email protected]

James Lindley Wilson Draft, September 2009

I. Introduction

A constitution purporting to establish a limited government invites the question why the political power constituted should suffer any constraint. The constitution of the political order declares the legitimate method for focusing the will of the community into decision and action, while the limitation immediately undercuts the claim that this method necessarily renders legitimate those decisions and actions that follow. There may be any number of ways to reconcile these competing tendencies, but at least on the surface the limited constitution seems to be at war with itself.

The tensions between the claim for legitimate empowerment and legitimate limitation are easy enough to see when a constitution on its face forbids or conditions the actions of the political authorities it establishes. In contemporary American discourse, the tension has been highlighted most clearly in discussions of judicial review of the actions of elected officials.1 But the tension would presumably remain even if there were no judicial review, for elected legislators chafing under self-policed constitutional limitations might still wonder why, to borrow Alexander Bickel’s words, the “mystical” view that the constitution represents the “will of the people” should be held to constrain the “the will of representatives of the actual people of the here and now.”2 Thus it is not only judicial review, but limited government itself, that trammels the people’s representatives, and to that extent is “a deviant institution in the American democracy.”3

1 The classic statement of this problem remains, of course, ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (2d ed. 1986). 2 Id. at 17. 3 Id. at 18. This point is often characterized as a conflict between democracy and liberalism (the latter understood as a commitment to various rights against the government). The literature on this supposed conflict is enormous; for two influential philosophical discussions, see Jurgen Habermas, Reconciliation through the Public Use of Reason, in THE INCLUSION OF THE OTHER: STUDIES IN POLITICAL THEORY 49 (1998); John Rawls, Reply to Habermas, in POLITICAL LIBERALISM 372 (2d ed. 1996).

1 James Lindley Wilson Draft, September 2009

Deviance requires a norm from which to deviate, and the suggestion of skeptics of

judicial review (and, though they do not necessarily see themselves this way, of limited

government) seems to be that the American political order has at its root a commitment to democracy expressed through majority rule. This commitment, after all, is what makes

“the counter-majoritarian difficulty” difficult.4 Thus the United States Constitution seems to embody a Manichean opposition between democracy (understood as majoritarianism) and constitutional limitation (counter-majoritarianism).

This view, and the odd conclusion it engenders that limited government is

actually deviant in the American constitutional order, suffers from too uncritical a view

of majority rule itself. For even when stripped of bicameral and inter-branch bells and

whistles, majority rule is much more than an empty vessel for revealing the already

extant “will of the people.” As we shall see, majority rule is itself a stylized

representation of “the people,” a highly formal device that does not merely reflect the people, but disciplines and shapes it—or, less “mystically,” it shapes them. If elements of

judicial review can be “counter-majoritarian,” so too may majority rule be “counter-

demotic” in its own way.5 In the terms laid out above, the constitution of the political

order through majority rule is itself a particular limitation on the vitality and authority of the people. This remains true whether or not the constituent document includes any explicit limitations on how the political authorities may act. The point is not to disparage majority rule or electoral democracy, but rather to resist the idea that majority rule is the

4 Id. at 16. 5 I use “counter-demotic” to emphasize restraint on popular political influence and participation. I use this somewhat ungainly term rather than, say, “counter-democratic,” to avoid as much as possible any pre- judgment about exactly which legal forms do or do not constitute the “rule of the people,” that is, democracy. As we shall see, it is a very open question how compatible “counter-demotic” tendencies may be with “democracy.”

2 James Lindley Wilson Draft, September 2009

pure or natural expression of democracy, and thus that any institution that runs against

the grain of majoritarianism is to that extent anti-democratic. To use Bruce Ackerman’s terminology, we should be highly skeptical of majoritarianism’s “mimetic” aspirations to

perfectly and unproblematically represent the people.6 Majority rule, limited

government, and judicial review are all of a piece, to the extent that they are all part of

the same project of “constitutionalizing” the people: organizing them into political forms

that both enable and constrain in the service of certain political values. None of this is to

say that judicial review and limited government are free of the various difficulties that

Bickel and others have so thoughtfully considered. But we should not found our criticisms on a complacent attitude towards majority rule itself. Majoritarianism and counter-majoritarianism should both have a share of our skepticism and our solicitude.

Faced with the immensely complicated task of formally instantiating the popular

will, the framers of the United States Constitution had a particular appreciation for the

fact that simple majority rule was an imperfect method of representing the people.

Accordingly, this paper examines the Federalist Papers—perhaps the most extensive and

thorough public justification of the Constitution by men involved in its writing—in order

to recover the understanding that majority rule is one political technique among many for

realizing popular sovereignty . The aim is not to score points against the Founders by

portraying them as “anti-democratic” by contemporary lights, though the ways in which

the constitutional order—importantly, including electoral majoritarianism—shapes and

constrains popular political action will be an important focus. The primary purpose

instead is to use the Federalist to remind ourselves that “majority rule” does not define a

natural, uniquely privileged form of democracy: constituting government is an exercise

6 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 183 (1991).

3 James Lindley Wilson Draft, September 2009

of political technique, and necessarily involves difficult political choices. These choices

and techniques not only reflect the popular will, but define it, and inevitably constrain it

in one way or another. The project of popular definition and constraint through

constitutional form may have the most salutary consequences, but it surely demands

justification. And justification, after all, is what the Federalist means to provide.

The representational techniques detailed in the Federalist involve artifice, with all

the connotations of the creative, the productive, and the synthetic—the non-natural—that

term implies. This point becomes the more clear when comparing the theories expressed

in the Federalist to other conceptions of popular rule. To that end, this paper compares the representational techniques of the Federalists,7 and in particular the Federalists’ attitude towards majoritarianism, with some alternative theories and practices of democracy in ancient Athens, and post-Revolutionary America. I do not mean to present an intellectual history of the Federalist, nor to establish a line of influence running from

Greek or Antifederalist thought to Madison and Hamilton, though surely some such connections do exist.8 Instead, my aim is to use alternative visions of democracy to

highlight the particular political choices of the Federalist and of American

constitutionalism more generally. Revealing those choices to be particular, rather than natural or self-evident, may in turn help us understand the political and intellectual

7 In this paper, I use the term “Federalists” as a shorthand for the authors of the Federalist Papers, and particularly James Madison and Alexander Hamilton , rather than as a broader reference to the proponents of the Constitution or members of the Federalist political party . I think the term nicely connotes unity of authorial purpose without prejudging the possible significance of plural authorship. 8 On the American Founders’ attention to Athens, see Jennifer Roberts, The Creation of Legacy: A Manufactured Crisis in Eighteenth-Century Thought, in ATHENIAN POLITICAL THOUGHT AND THE RECONSTRUCTION OF AMERICAN DEMOCRACY 81 (J. Peter Euben et al., eds., 1994). On the intellectual debt of the Federalists to the Antifederalists, their Whig forbears, and American political thought more generally, see GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC , 1776-1787 (2d. ed.1998).

4 James Lindley Wilson Draft, September 2009

commitments behind those choices, and thus to better understand majority rule as a

constitutional means of representing the people.

This paper first proceeds in Part II to illustrate the extent to which majority rule, with its pre-scheduled voting and orderly counting, is a highly formal, structured mechanism for representing the people. A “one person, one vote” rule—not to mention regular elections , bicameral legislatures with highly complex procedural rules, and so on—imposes a discipline on “the people” that is not logically mandated by a commitment to democracy.9 This disciplining feature of majoritarianism may seem invisible to us

(unlike, say, the disciplining features of judicial review or the Bill of Attainder Clause10)

because we have forgotten the possibilities of relatively formless democratic politics,

variations of which were very much present in both ancient Athens and eighteenth

century America. The disciplinary functions of majority rule may have its virtues—for

instance, in combating that ubiquitous bugbear of the Federalist Papers, democratic

“turbulence” and instability11—but the ordering principle may come at the price of a dampening of popular political activity and engagement. Indeed this is a price that the

Federalists may not have been entirely unhappy to pay.

As a formal technique of representation majority rule shapes “the people” as it purports to represent them. This paper in Part III next inquires into the nature of the

9 By “one person, one vote,” I do not mean to invoke the “reapportionment revolution” of the 1960s. See, e.g., Baker v. Carr 369 U.S. 186 (1962) (declaring malapportionment challenges justiciable); Reynolds v. Sims, 377 U.S. 533 (1964) (holding that the Equal Protection Clause requires states to construct legislative districts of equal population). While the reapportionment cases involved complicated questions regarding the drawing of district lines, I mean only to refer to the more basic decision to value each individual citizen’s vote as equivalent within any given electoral district—and, implicitly, to limit more spontaneous forms of popular action that are not amenable to such counting procedures. To borrow language from the philosopher Jonathan Still’s influential work on kinds of equality in election systems, I mean to emphasize “equal shares” of votes rather than “equal probabilities” of casting a decisive vote. See Jonathan Still, Political Equality and Election Systems. 91 ETHICS 375, 378, 380 (1981). 10 U.S. CONST. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). 11 See, e.g., THE FEDERALIST NO. 10, at 61 (James Madison) (Jacob E. Cooke, ed., 1961).

5 James Lindley Wilson Draft, September 2009

majoritarian mold by examining the social and political commitments that allowed the

Federalists to conceive of majority rule as an appropriate mechanism for representing the

people. In order to see why a sanguine view of majoritarianism may not be self-evident, I introduce the classical concern that majority rule in practice amounts to little more than self-aggrandizing mob rule —the concession of rational politics to the forceful threat of

superior numbers. This ancient view found prominence in the English theory of “mixed

government,” wherein each branch of government (in the English case, the House of

Commons, the House of Lords, and the Monarch) represented one of the constitutive classes of society (the many, the few, and the one). The English had exported mixed-

government theory to their American colonies, where it preserved the venerable vision of

majoritarianism as inegalitarian to the extent that it broke the political balance by

awarding control to the many at the expense of the equally deserving upper classes.12

Surveying this backdrop allows us to appreciate the remarkable innovations that led the

Federalists (along with other Americans) to view majority rule as a fundamental principle of free government, while helping us to understand the simultaneous ambivalence toward popular majorities that permeates the Federalist Papers.

Federalist support for majority rule, however conditioned, was a major innovation in that it signified a vision of classless politics, and thus a basic, if highly formal, egalitarianism among individuals, rather than classes. Fifty commoners could now directly outvote ten landed elites , rather than each group garnering a separate and equal representation in a house of the legislature .13 This formal, individualist egalitarianism

12 On the American development and transformation of mixed-government theory, see WOOD, supra note 8, at 197-255. 13 No discussion of the relationship between egalitarianism and majority rule in the Federalist would be complete without recognition of widespread American disenfranchisement—in particular, of slaves,

6 James Lindley Wilson Draft, September 2009 appeared palatable to the Federalists because they replaced the English view of society as constituted by rigidly defined classes with Madison’s strikingly modern view of society as constituted by highly differentiated and highly fluid factions.14 Majoritarian American government thus could conceivably represent “the entire body of the people themselves.”15 At the same time, however, the fear of mobbish politics and majority force did not completely subside in the Federalist, and thus the Federalists’ constitutional project is consumed with protecting rational, deliberative politics against “excesses in the majority.”16 Notably, this concern is visible throughout the Federalist Papers, and emerges long before any discussion of judicial review.

The Federalists do not see themselves as building a political system that, on one hand, uncritically reflects the will of popular majorities and, on the other hand, restrains those majorities through constitutional limitation and judicial review. The Federalist reveals that majority rule itself shares many of the aspects we intuitively associate with constitutional limitations (judicially enforced or otherwise) such as the Equal Protection

women, and the poor. Indeed, proper recognition surely requires more than a passing footnote. I bracket the disenfranchisement problem for now in order to keep as simple as possible the basic point in the text that majority rule involves highly tendentious, and by no means self-evident, attitudes regarding equality and society. As we shall see, the problem of disenfranchisement—and slavery in particular—is by no means a mere footnote to this proposition, but on the contrary illustrates it powerfully. See infra notes 98, 196, 213-14 and surrounding text. It may be worth noting here, however, that the federal Constitution itself disenfranchised nobody. See, e.g., THE FEDERALIST NO. 57 (James Madison), supra note 11, at 385 (“Who are to be the electors of the Foederal Representatives? . . . The electors are to be the great body of the people of the United States.”); id. NO. 60, at 408-09 (Alexander Hamilton) (noting that the power to establish property qualifications for voting “forms no part of the power to be conferred upon the national government”); see also infra note 98 and surrounding text. For a discussion of debates over suffrage in the Constitutional Convention , see ALEXANDER KEYSSAR, THE RIGHT TO VOTE 21-24 (2000). 14 See generally THE FEDERALIST NO. 10 (James Madison) (elaborating theory of factional politics). 15 Id. NO. 63, at 431 (James Madison). 16 Id. NO. 70, at 475 (Alexander Hamilton). This phrase occurs in the context of legislative majorities, but the Federalist concern was only amplified in the context of popular majorities. See, e.g., id. NO. 10, at 61 (James Madison) (outlining the dangerous tendencies of a “majority of the whole” in the context of “pure Democracy”).

7 James Lindley Wilson Draft, September 2009

Clause.17 Majority rule embodies a set of choices that constrain popular action in favor of basic political values, such as order and a kind of equality in determining the outcome of a collective decision.18 Majority rule is best understood not simply as a foil for

“counter-majoritarian” constitutional constraints, but rather as itself a core part of an

American constitutional project that aims to enable, channel, and constrain popular

action. This is true even of the legislative and executive branches where we today

believe “the public voice pronounced.”19 The authors of the Federalist Papers

understood that pronouncing the public voice is always something of a ventriloquist act, whether performed by “the representatives of the people” or by “the people themselves convened for the purpose.”20 Majoritarianism is one such act, and it may be a good one.

But that is no reason not to examine the dummy’s mask; to appreciate its craft; to

recognize its flaws; or to forget the other masks laid aside, themselves partaking in

something of the beautiful and the grotesque. And surely it is no reason to imagine that

there is no mask at all.

II. Form and Formlessness: Majority Rule as Constitutional Discipline

A. The Political Heisenberg Principle and the Construction of the People

As I have suggested, Alexander Bickel’s critique of the “deviant” judiciary gains

significant purchase because of the contrast with the supposedly concrete democracy of

electoral representation. Bickel responds with significant skepticism to the arguments of

John Marshall and Alexander Hamilton that judges engaged in judicial review merely

17 U.S. CONST. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). 18 On the egalitarianism of majority rule, see, e.g., JEREMY WALDRON, LAW AND DISAGREEMENT (1999); Still, supra note 9, at 383-84. 19 Id. NO. 10, at 63 (James Madison). 20 Id.

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govern themselves by the “will of the people” rather than the “will of the legislature.”21

While not dismissing the point out of hand, Bickel contrasts this “abstract[]” view of the people represented by the judiciary with the “actual people of the here and now” represented by the legislature.22 Judicial review (and, I suggested, constitutional

limitation generally) is suspect because its representational claims are highly abstract,

whereas legislatures and presidents claim an immediate connection to the actual “votes of

a majority of the individuals in the electorate.”23 This connection to the real flesh and

blood people, rather than the “mystic[al] . . . people in the past,” renders “the policy -

making power of the representative institutions, born of the electoral process . . . the

distinguishing characteristic of the system.”24 Claims of representativeness gain their

credibility to the extent that they connect institutions to the actual people, with a

minimum of metaphor and the virtual advancement of interests whose possessors are not

present—a minimum of what Bickel, indeed, calls the “nonrepresentational.”25

Bickel’s dichotomy has intuitive appeal, but that appeal rests on his relatively

uncritical acceptance of the existence of an “actual” people to which representatives may

be unproblematically connected through the electoral process.26 But “the people” for

political purposes does not exist as a referent exogenous to the political ideals that

underlie the concept of “people.”27 To be sure, in any polity there are real, living human

21 THE FEDERALIST NO. 78, at 525 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 22 BICKEL, supra note 1, at 16, 17. 23 Id. at 19. 24 Id. at 17-18. 25 Id. at 16. 26 To be fair, Bickel is not completely uncritical on this point. See id. at 18 (acknowledging imperfections in the representativeness of the legislature). But he nevertheless maintains a strong dichotomy between the virtual representation of the judiciary and the actual representation of the “political branches.” Id. at 19-20. 27 This basic point is made on the first page of an influential election law casebook. See SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY 1 (Rev. 2d ed. 2002).

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beings, but the political “people” will always be something of an artifice—a product of

political choices about decision-making institutions—that inevitably remains somewhat

metaphorical and thus to some extent (in Bickel’s terms) “nonrepresentational.” The

“people” is subject to a political Heisenberg principle: it has no unproblematic existence

apart from the means we use to measure that existence. This is true for majoritarian

politics as much as for the abstract democratic politics that undergirds Hamilton’s

defense of judicial review.

This discussion may seem highly abstract and needlessly allusive. A few

reflections—some commonplace, some less so—may help illustrate the point that even

the most simple and stripped-down majority rule constitutes a problematic representation.

First, the commonplace: any majoritarian system (even one involving merely involving

“the making of decisions . . . by a show of hands,” to use Bickel’s paradigm of simple

democracy28) must start with asking the highly political and often problematic question,

“a majority of what?” The basic need for a denominator in the majoritarian fraction

immediately opens difficult questions about the proper expanse of the polity as well as

who within the polity qualifies to be counted in that denominator.29 So long as suffrage

is not made universally available to all individuals on earth, difficult and politically charged decisions must be made. Importantly, such decisions must be made prior to the

deployment of majoritarian measuring techniques, for it is the very nature of the technique that is at issue.

28 BICKEL, supra note 1, at 17. 29 For some good recent discussions of this issue, see David Miller, Defining the Demos. 37 PHIL. & PUB. AFFAIRS 201 (2009); Robert Goodin, Enfranchising All Affected Interests, and Its Alternatives. 35 PHIL. & PUB. AFFAIRS 40 (2007).

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One may plausibly suggest that the urgency of this concern critique is at its lowest ebb in the American case. It may not apply with much force to the case of a relatively geographically discrete eighteenth-century American populace. Of course, even here,

Americans faced troubling (or what ought to have been troubling) questions regarding female, Indian, and black suffrage, as well as the more commonly acknowledged problems of what majorities—national or state—mattered for what purposes. No matter how elegantly we think the American Founders dealt with these latter problems,30 the point remains that they were hardly self-evident even in the context of simple majoritarianism. The “majority of what?” problem inevitably introduces political choices that will often veer away from the concrete and the actual, as they tend to require value- laden abstraction.

Living in the midst of an operating constitutional system with relatively well- defined boundaries, we may be impatient with such objections. The political Heisenberg principle does not only operate, however, on the boundaries of the polis. Perhaps less obviously, majoritarianism requires a shaping and disciplining of the people that renders the measuring principle artificial and somewhat virtual even in the context of a well- defined, closed polity. For the implementation of even simple majority rule requires the imposition of a kind of political-constitutional discipline on the raw political substance of individual citizens. This may be hard to remember in a society where constitutional tradition since 1787 has rendered electoral majoritarianism relatively natural and unremarkable. The next Section therefore aims to throw the formalism of majority rule into relief by reviewing more formless democratic possibilities, against some of which the Federalist directly sets itself.

30 See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism . 96 YALE L. J. 1425 (1987).

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B. Formless Democracy in Athens and America

Consider Sheldon Wolin’s description of transition in ancient Athens from a

“radical” democratic politics to “constitutional democracy”:

The political challenge of the demos inevitably overflowed the customary and institutional boundaries within which elites were attempting to fix politics. Consequently, democratic politics appeared as revolutionary and excessive, irregular and spasmodic. The response of Greek constitutional theory was to attempt to suppress the eruptive character of democratic politics, but, if necessary, to incorporate it selectively as a preliminary to reconceptualizing the “problem” of politics as a contest involving competing claims to rule and conflicting notions of equality. The solution was “contained” in the pivotal notion of “form.”31

By this light, even the most basic attempts to organize the political apparatus into legal

form were “counter-demotic” to the extent that such formalization undermined

democracy’s “idea and practice of rational disorganization.”32

The formalization process in ancient Athens was more than conceptual. Wolin,

for example, points to the abolition of “[r]otation and lot, [which] both function to limit

the effects of institutionalization: they are, paradoxically, institutions that subvert

institutionalization. . . . The disruption in continuity of personnel injected an element of rational disorganization” which newer, more disciplined constitutional forms aimed to corral.33 That the practices of rotation and lot were viewed as realistic political

possibilities may render less strange to twenty-first century Americans what Josiah Ober

describes as the Athenian view that “tended to regard elections as undemocratic.”34

31 Sheldon S. Wolin, Norm and Form: The Constitutionalizing of Democracy, in ATHENIAN THOUGHT AND THE RECONSTRUCTION OF AMERICAN DEMOCRACY, supra note 8, at 29, 48. 32 Id. at 37. 33 Id. at 43. 34 JOSIAH OBER, MASS AND ELITE IN DEMOCRATIC ATHENS 294 (1989). Note, however, that Ober questions the significance of rotation and lot in filling offices, claiming that “[m]ost of the officials held little real power in any case.” Id. On the long-standing historical view that elections were oligarchic or aristocratic institutions, rather than democratic, see BERNARD MANIN, PRINCIPLES OF REPRESENTATIVE GOVERNMENT (1997).

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(Among other things, elections tended to fill offices with rich, elite citizens.) Like Wolin,

Ober suggests more broadly that what we might term as the “constitutional” project of

legally ordering citizens’ relations had something of an anti-democratic flavor: “A

detailed code of sovereign laws might be an advantage to the elites. . . . The more fully articulated the law code, the less leeway jurors would have in interpreting it. . . .

[C]omplete articulation of the law was a denial of the collective wisdom of the masses.”35

Ober inverts the contemporary “counter-majoritarian” concern: where “judicial review” as a mixed project of interpreting and applying laws was under the popular control of the jury, it was “activism” in judging that allowed the free-form rule of the demos, and the strict adherence to narrow legal mandates that was seen as the repressive force. Where

Wolin describes the goal of “Greek constitutional theory” as developing the rule of law— including the definition of political forms—in order to regulate and constrain freewheeling popular action, Ober reveals the obverse view of the Athenian people, who

“never bothered themselves with the notion that democracy and the rule of law were mutually exclusive. They saw that unrestrained popular will was dangerous, but they also saw that excessive constitutional checks and balances along with a fully articulated law code threatened the interests of the masses.”36 Whereas a strict law code always

involves the rule of the “dead hand” of past assemblies, easily revisable law and broad

jury authority kept power in the living hands of the Athenian people.

These brief glimpses at Athenian practices of rotation, lot, and relatively free-

form democratic revision of the laws through both popular assembly and jury should

35 OBER, supra note 34, at 303. 36 Id. at 304. See also Melissa Schwartzberg, Athenian Democracy and Legal Change, 98 AM. POL. SCI. REV. 311, 313 (2004) (“[P]art of what the Athenians understand as democracy . . . is the freedom to be unbound by prior decisions and, given new information , to redirect.”).

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underscore the extent to which electoral majoritarianism constrains popular political

power relative to some other democratic possibilities. One need not accept Wolin’s

rather dour view of the ideological goals behind both ancient and modern

constitutionalism37 in order to appreciate the point that even primitive electoral forms

shape and constrain the political landscape in ways that are not logically or historically

required by a commitment to “democracy.” Even highly inclusive political forms

(generally non-existent, of course, in ancient Athens or in eighteenth-century America)

limit popular engagement to the extent that they strictly regulate the timing and manner in

which such engagement will be recognized as constitutionally relevant. Without

diminishing the significance of informal channels of political influence—whether by

mass assembly and protest, or by monetary donations and personal access to officials—

we should not ignore the constraining effects of a system that for the most part only

allows direct popular control over political decision-making at occasional and highly

regulated intervals when the majority is formally measured. Primitive form is still form,

and entails political choices that introduce a gap between representative and represented, as different choices can lead to substantial differences in both the inputs into, and outputs

of, political decision-making procedures.

The disciplining nature of simple political forms may be nearly invisible to us

today, living as we do in a complex and highly organized constitutional structure, but it

was not so invisible the American Founders themselves. On the contrary, Revolution-era

Americans were familiar with democratic action that, to borrow Wolin’s phrase,

“overflowed the customary and institutional boundaries within which elites were

37 See, e.g., Sheldon S. Wolin, Democracy: Electoral and Athenian. 26 PS: POL. SCI. & POL. 475, 476 (1993) (“The aim was not simply to check democracy but to discourage it by making it difficult for those who, historically, had almost no leisure time for politics, to achieve political goals.”).

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attempting to fix politics.”38 Historian Gordon Wood has documented “the increasing

difficulty Americans had in sustaining representative legislatures which could

satisfactorily speak for the people. . . . [T]he American people came to rely more and

more on their ability to organize themselves and to act ‘out-of-doors,’ whether as ‘mobs,’

as political clubs, or as conventions.”39 With skepticism of representational forms

leading them to believe that “the final and full embodiment of the people in the

government was impossible,” radical Americans resisted the limitations of routinized

political form, and demanded political recognition of their direct, if informal, action.40

The mob, the club, and the convention are—unlike the legislature—political mechanisms easily formed and easily dissolved, and thus suited for the spontaneous and constant popular revision of the political and legal order. Where electoral representation requires popular control of politics to remain latent and indirect most of the time—rendering the demos, according to Wolin, “a sovereign who reigns but does not rule”41—informal,

improvised politics seemed to offer wider scope for democratic politics. Thus it was that

Noah Webster could declare that:

the word Democrat has been used as synonymous with the word Jacobin in France; and by an additional idea, which arose from the attempt to control our government by private popular associations, the word has come to signify a person who attempts an undue opposition to or influence over government by means of private clubs, secret intrigues, or by public popular meetings which are extraneous to the constitution.42

Webster’s critical tone should not obscure the significance of the connection between

democracy and informal politics; a significance so widely acknowledged in late

38 See Wolin, supra note 31, at 48. 39 WOOD, supra note 8, at 319. 40 Id. at 323. 41 Wolin, supra note 37, at 476. 42 Letter from Noah Webster to Joseph Priestley, in THE LETTERS OF NOAH WEBSTER 208 (H.R. Warfel ed., 1953), quoted in Roberts, supra note 8, at 89.

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eighteenth century America that, if Webster is to be trusted as to the meaning of words,

the drive to resist political formalization was seen as definitive of democracy.

Whatever else we think of the informal thrust of radical democratic politics in

post-Revolutionary America, it is hard to deny the charge that informalism tended to

introduce instability into politics. Radical skepticism of institutional form seems

conceptually to build instability into politics: popular political action would

spontaneously coalesce into institutional form, but would then dissolve under the same

suspicion that rendered the novel form necessary in the first place. As Wood puts it,

“[t]he extreme actuality of representation being honed and extended in the decade after

Independence, with its concomitant weakening of the binding character of law, was . . .

tending to dissolve and render nugatory every civil compact.”43 Or, as John Adams more scathingly put it, “[i]s this government, or the waves of the sea?”44 Of course, the

introduction of instability into politics may have been part of the very point: the ebb and

flow of institutional forms may have been a viable strategy for resisting the de facto (and

sometimes de jure) exclusion and elitism of more stable representational forms, including

majoritarian electoral representation. Whatever our verdict as to the wisdom of informal

democratic politics, it appeared as a real (if radical) possibility to the framers of the

United States Constitution, who saw the resistance of instability through constitutional

form as a core part of their mission.

C. Federalist Forms: Turbulence, Energy, and the Construction of the Assembly

The authors of the Federalist Papers repeatedly and unashamedly insist that

instability stood as the greatest political ill that their constitution meant to cure.

43 WOOD, supra note 8, at 368 (quotation omitted). 44 John Adams, in 4 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 285 (Charles Francis Adams ed., 1856), quoted in Roberts, supra note 8, at 90.

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Alexander Hamilton declared “the mischiefs of that inconstancy and mutability in the laws . . . the greatest blemish in the character and genius of our government,”45 and

James Madison suggested these blemishes were widely seen: “[t]he sober people of

America are weary of the fluctuating policy which has directed the public councils.”46

The Federalist concern with “turbulence and contention” is ubiquitous.47 The Federalists identify turbulence as endemic both to their contemporary American republics48 and to democracies and republics throughout history;49 they describe it as a threat to national security (both of the United States and of individual states)50 and to liberty51; they forecast its consequences as violent revolution52 and elitist demagoguery53; and discuss its effects in the context of such various constitutional provisions as the executive veto and the Senate’s treaty power.54 Disorder and its attendant weakness threatened not only bad governance but national catastrophe, and thus the development of an ordered popular government was a primary project of the new constitution.

45 THE FEDERALIST NO. 73, at 496 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961). 46 Id. NO. 44, at 301 (James Madison). 47 Id. NO. 10, at 61 (James Madison). 48 See supra notes 45-46 and surrounding text; see also id. NO. 10, at 57 (James Madison) (“Complaints are every where heard . . . that our governments are too unstable.”). 49 See id. NO. 6, at 31-32 (Alexander Hamilton) (“impulses” of “popular assemblies”); id. NO. 9, at 50 (Alexander Hamilton) (“rapid succession of revolutions” in historical republics); id. NO. 10, at 56-57 (James Madison) (“The instability, injustice, and confusion introduced into the public councils, have in truth been the mortal diseases under which popular governments have every where perished.”); id. at 61 (“Democracies have ever been spectacles of turbulence and contention.”); id. NO. 14, at 81 (James Madison) (referring to “the turbulent democracies of ancient Greece and modern Italy”); id. . NO. 18, at 114 (James Madison) (describing ancient Greek popular governments as “tempestuous”). 50 Id. NO. 6, at 31-32 (Alexander Hamilton) (rejecting suggestion that peace would obtain between disunited states given republican turbulence). 51 Id. NO. 10, at 61 (James Madison) (discussing how democratic turbulence threatens “personal security” and “the rights of property”). 52 Id. NO. 28, at 177 (Alexander Hamilton) (preferring to risk national army rather than “the unceasing agitations and frequent revolutions which are the continual scourges of petty republics”). 53 Id. NO. 62, at 421 (James Madison) (“Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising and the moneyed few, over the industrious and uninformed mass of the people.”). 54 Id. NO. 73, at 496 (Alexander Hamilton) (veto power); id. NO. 75, at 507 (Alexander Hamilton) (treaty power).

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Complementing the need to discipline popular turbulence was, for the Federalists, the need to establish a government with sufficient “vigour” to ensure the rational administration of political affairs, both domestic and international.55 Indeed, the central difficulty of the Constitutional Convention, according to Madison, was “combining the requisite stability and energy in Government, with the inviolable attention due to liberty, and to the Republican form.”56 Democratic turbulence being inimical to both governmental energy and republican liberty, the Federalists had little difficulty in supporting a plan that would dampen popular political spontaneity and sublimate, through constitutional form, democratic energy into the energy of the state. The trade seemed a good one, given the entropic tendencies of informal democratic politics and the contrasting rationalism and stability of energetic government. As Hamilton put it in the context of the executive in particular:

Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy .57

Proper constitutional form would thus both limit the disorderly tendencies of democracy and enable the government to rationalize politics. Thus could a republican form of government promote “[c]ivil power properly organized and exerted . . . capable of diffusing its force to a very great extent.”58

55 Id. NO. 1, at 5 (Alexander Hamilton). 56 Id. NO. 37, at 233 (James Madison). 57 Id. NO. 70, at 471 (Alexander Hamilton). 58 Id. NO. 13, at 81 (Alexander Hamilton).

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The dual rejection of disorganized formlessness and democratic turbulence was

linked together in the Federalists’ theory of assemblies. In any discussion of American

majoritarianism, we should remember the simple but crucial fact that to the extent that

majoritarianism has a hold on American democracy, it is not in the form of simple

majoritarianism across individual citizens, but rather in the form of representation

through electoral majoritarianism.59 That is, generally speaking, majorities of individual

citizens do not determine government policy, but rather elect officials who do. The point

is crucial because the authors of the Federalist Papers were highly conscious of the

different consequences of majority rule in different domains—that is, in different types of

assemblies, ranging from relatively informal gatherings of individual citizens to highly

formalized legislatures and committees. Majoritarianism was not a principle in the

political ether, as it were, but, in the Federalists’ eyes, had dramatically different political

consequences in different institutional contexts. Federalist endorsement of majority rule,

therefore, was conditioned on the constitutional forms that majoritarianism was to take.

American majoritarianism thus cannot be separated from the broader concern for rational,

ordered politics that drove the Federalist theory of assembly.60

The authors of the Federalist Papers quite explicitly place the search for

disciplined majoritarianism at the center of their constitutional project. Madison saw

59 This distinction between representative and direct majoritarianism is obvious, but has substantial consequences for arguments about the egalitarian, democratic character (or otherwise) of majority rule. I discuss this point, versions of which the Federalists understood very well, at length in my Ph.D. dissertation. See James Lindley Wilson, Finding Time for Democracy: A Theory of Political Equality (unpublished manuscript, on file with author). 60 Cf. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V. 94 COLUM. L. REV. 457 (1994). Amar suggests that the Constitution contemplates amendment through “a majoritarian and populist mechanism akin to a national referendum ,” id. at 457, in my terms a relatively “undisciplined” majority rule (though the reference to a referendum procedure does suggest some ordering). I agree with Amar at least to the extent that I share his sense that interpreters of the Constitution cannot ignore the Founders’ commitment to action by “the people” to “alter or abolish” their governments. See infra notes 64-68 and surrounding text. Nevertheless it is worth acknowledging that the Federalists, at least, hoped that resort to such populist measures would be rare.

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majority rule as so fundamental that he was willing to deem its operation “the republican principle,” but nevertheless in virtually the same breath declared majoritarian factionalism the primary threat to “the public good and the rights of other citizens.”61

Protecting against majoritarian abuses while “preserv[ing] the spirit and form of popular government, is then the great object to which our enquiries are directed.”62 A primary

question was how majority rule was to be instantiated, and in Federalist No. 10 Madison

quickly introduces the comparison between “pure Democracy” and representative

republicanism63—a regularly recurring motif throughout the Federalist Papers—in order

to illustrate the need for proper constitutional form to ensure propitious majority rule.

The Federalists were by no means inveterate enemies informal popular action.

On the contrary, in defending the arguably extra-legal activities of the Constitutional

Convention, Madison insisted that “as the plan to be framed and proposed, was to be

submitted to the people themselves, the disapprobation of this supreme authority would

destroy it for ever; its approbation blot out all antecedent errors and irregularities.”64 To be sure, “the people themselves” were to provide authorization through conventions in the states, but this was seen not as disciplining institutional form, but rather a relatively formless popular alternative to the remote and highly formal legislatures.65 Dismissing

formalist objections to the ratification project, Madison recalled the then-recent

revolutionary past of “irregular and unauthorized” political action, and suggested that “no

little ill-timed scruples, no zeal for adhering to ordinary forms, were any where seen,

61 THE FEDERALIST NO. 10, at 60-61 (James Madison). 62 Id. at 61. 63 Id. at 61-62. 64 THE FEDERALIST NO. 40, at 265-66 (James Madison). 65 See, e.g., supra, notes 38-43 and surrounding text (discussing “conventions” as one of the spontaneous and relatively informal means of popular political action); see also WOOD, supra note 8, at 306-43 (discussing the American view of conventions as superior representations of the people in part because of their illegality and spontaneity).

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except in those who wished to indulge under these masks, their secret enmity to the

substance contended for.” 66 Moreover, Federalist support for radical popular action does

not seem limited to the self-serving suggestion that action by “the people themselves”

should be a kind of one-off affair unique to the ratification of their favored constitution.

On the contrary, the Federalists recognize the “people themselves”—unmediated by

institutional form—as a legitimate looming presence in politics. “[T]he people” were

thus the “natural guardians of the constitution” who were expected to resolve standoffs

between the federal and state governments,67 and indeed were approvingly said to retain

under the proposed constitutional order their “original right to self-defence” against usurping representatives and to use their “natural strength” to deter tyranny.68

For all that the Federalists acknowledged the unmediated people as a supreme

authority and ultimate arbiter of political decisions, however, they nevertheless resisted the idea that “the people themselves” should ordinarily take an active role in politics.

The people were authoritative, but this authority was generally best kept latent, lest

politics take the shape of permanent revolution and mobbish turbulence.69 Cases of

revolution and constitutional emergency aside, the Federalist Papers are full of cautions

against allowing the “people themselves,” unmediated by constitutional form, to take up

the reins of more quotidian political power. These cautions center directly on the ways in

which different institutional constructions of a popular majority produce political results

of highly varying quality.

66 THE FEDERALIST NO. 40, at 265 (James Madison). 67 Id. NO. 16, at 104 (Alexander Hamilton). 68 Id. NO. 28, at 178, 179 (Alexander Hamilton). For further discussion on “the people” as an extra-legal source of possible political violence, see infra notes 168-172 and surrounding text. 69 See id. NO. 9, at 50 (Alexander Hamilton) (exhibiting “horror and disgust . . . at the rapid succession of revolutions” in the “petty republics of Greece and Italy”); id. NO. 28, at 177 (Alexander Hamilton) (noting “frequent revolutions which are the continual scourges of petty republics”).

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The Federalists consistently criticize “pure”—what we today would probably call

“direct”—democracies where citizens “assemble and administer the Government in

person.”70 In the first place, the Federalists argue that the immediacy of political

interactions between many individuals tends to promote irrational government by the

“passions.” Without the restraint of constitutional forms, the Federalists paint a portrait

of noise and tumult among the people assembled together that gives rise to “the tyranny

of their own passions.”71 Amid the general bedlam and “confusion of a multitude,”72 the people have an almost total “incapacity for regular deliberation,”73 and thus render

themselves prone to irrational and turbulent politics. This incapacity of “the people

themselves” for deliberative rationality and good government ostensibly stems not from

any defect in the individuals themselves, but the institutional context (or lack thereof) entailed by direct democracy . Thus Madison could boldly claim that “[h]ad every

Athenian citizen been a Socrates; every Athenian assembly would still have been a

mob.”74 The Federalists reveal themselves to be less majoritarians than rationalist majoritarians, admitting that “the cool and deliberate sense of the community ought in all governments, and actually will in all free government ultimately prevail over the views of

70 THE FEDERALIST NO. 10, at 61 (James Madison). See also id. NO. 48, at 333 (James Madison) (discussing “a democracy where a multitude of people exercise in person the legislative functions”); id. NO. 58, at 396 (James Madison) (discussing “the antient republics, where the whole body of the people assembled in person”). 71 THE FEDERALIST NO. 63, at 425 (James Madison). 72 Id. NO. 10, at 63 (James Madison). 73 Id. NO. 48, at 333 (James Madison). 74 Id. NO. 55, at 374 (James Madison). Cf. id. NO. 49, at 340 (James Madison) (“The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. . . . In a nation of philosophers, this consideration ought to be discarded.”) Though the judgment about the hypothetical “nation of philosophers” interestingly differs in the latter passage, the claim remains consistent that the “people themselves” tend toward poor collective judgments.

22 James Lindley Wilson Draft, September 2009 its rulers,”75 but questioning whether the majority’s “cool and deliberate” views will emerge when undisciplined by appropriate constitutional form.76

The popular passions and the mechanics of the citizens’ assembly also, according to the Federalists, render action by “the people themselves” uniquely prone to manipulation and demagoguery. The incapacity for deliberation in the tumultuous multitude causes a kind of spontaneous order to emerge through the assumption of de facto control by a very few individuals. “In the antient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as compleat a sway, as if a scepter had been placed in his single hands.”77 The freewheeling style of relatively informal government may admit greater popular energy and activity, but it also tends to lack the formal mechanisms to preserve basic norms of equality, as may be expressed in rules of debate, or the voting rules themselves. The mob may represent the people unshackled from constraining rules regulating access to political power, but it also acts free from the confining equality of

75 Id. NO. 63, at 425 (James Madison). See also id. NO. 49, at 343 (James Madison) (“[I]t is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government.”). 76 On the propensity of the unmediated people for passionate politics, see also id. NO. 10, at 61 (James Madison) (arguing that in a “pure Democracy . . . [a] common passion or interest will, in almost every case, be felt by a majority of the whole”); id. NO. 63, at 425 (James Madison) (discussing need for restraint when “the people [are] stimulated by some irregular passion”); id. NO. 49, at 343 (James Madison) (rejecting regular resort to people to resolve constitutional issues in part because “the passions . . . not the reason, of the public, would sit in judgment”). Cf. id. NO. 78, at 527-28 (Alexander Hamilton) (approving of popular constitutional change only when pursuant to a “solemn and authoritative act” rather than a “momentary inclination”). 77 Id. NO. 63, at 425 (James Madison). Ober seems to agree that something like this de facto rule of the artful orator did occur in democratic Athens, but unlike Madison, he suggests that such developments were infrequent and circumscribed. See OBER, supra note 34, at 325 (noting that in times of emergency, “the orator, normally playing a double role and balancing any elitist claims with egalitarian sentiments, stepped out of character . . . he shed his double mask of ‘equal but better’ and displayed himself to the audience as a superior being, worthy of rule. . . . The elevation in status from adviser to leader was always temporary, the people’s delegation of power always provisional.”).

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even a “one-person, one-vote” rule.78 Of course, in the context of direct democracy, it is

perfectly possible to preserve a formal majority voting rule, but Madison suggests that in

the practical reality of the multitudinous assembly, “[t]he countenance of the government may become more democratic; but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer and often, the more secret will be the springs by which its motions are directed.”79

The Federalist’s constitutional project of establishing a free government that

respected the “republican principle” of majority rule80 was thus intimately connected with the task of constructing an institutional context channeling popular majorities in such a way as to allow the “cool and deliberate sense of the community . . . [to] ultimately prevail over the views of its rulers.”81 This task not only manifested itself in

“counter-majoritarian” institutions such as the judiciary, the Senate, or the President

(elected not by popular majority but by an electoral college), but also in the construction

of the most ostensibly “majoritarian” institution in the federal Constitution, the House of

Representatives. As we have seen, the very decision to instantiate majority rule in a

representative assembly rather than through more direct and informal meetings of citizens

itself reflected the Federalists’ desire to harness popular energies to what they saw as

more deliberative institutional forms. Similarly, the question of how to constitute the

78 Wood refers to similar criticisms of the popular veto of legislation under Pennsylvania’s 1776 Constitution. See WOOD, supra note 8, at 249 (“Such supposed discussion among the people would never truly express the sense of the people, since only the persons who frequented public houses where the laws were posted would participate.”). 79 Id. NO. 58, at 396 (James Madison). See also id. NO. 6, at 32 (Alexander Hamilton) (noting that the determinations of “popular assemblies . . . are often governed by a few individuals, in whom they place confidence”); id. NO. 48, at 333 (James Madison) (arguing that in a democracy, the people “are continually exposed by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates”). 80 See id. NO. 10, at 61 (James Madison); see also id. NO. 22, at 139 (Alexander Hamilton) (describing as a “fundamental maxim of republican government” that “the sense of the majority should prevail”). 81 Id. NO. 63, at 425 (James Madison).

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representative assembly was guided by the desire to avoid replicating in the legislature

the pathologies of the unmediated people. The Federalists explicitly warned against

constructing a legislature that would act like unmediated popular majorities: “the more

multitudinous a representative assembly may be rendered, the more it will partake of the

infirmities incident to collective meetings of the people.”82 In particular, numerous

assemblies share the “infirmities” of vulnerability to passion and to demagogic

manipulation:

[T]he more numerous any assembly may be, of whatever characters composed, the greater is known to be the ascendancy of passion over reason. In the next place, the greater will be the proportion of members of limited information and of weaker capacities. Now it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force.83

These concerns were not merely academic or theoretical, but rather had direct relevance

for the very practical question of how to apportion seats in the House of

Representatives—that is, how to politically constitute America’s popular majority.84

Thus the Federalists’ majoritarianism did not aim to passively reflect the basic, primitive

desires and actions of “the people.” On the contrary, their construction of majority rule

very consciously exploited what I called the political Heisenberg principle that

constitutional form shapes popular political substance as it measures that substance.

Majority rule in the particular assembly context developed by the United States

82 Id. NO. 58, at 396 (James Madison). 83 Id. at 395-96 (James Madison). On the propensity for large assemblies to succumb to passion’s rule, see also id. NO. 10, at 62-63 (James Madison) (discussing need to limit size of legislature in order to “guard against the confusion of the multitude”); id. NO. 48, at 334 (James Madison) (arguing legislature in representative republic “sufficiently numerous to feel all the passions which actuate a multitude”); id. NO. 55, at 374 (James Madison) (“In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason.”); id. NO. 62, at 418 (James Madison) (arguing that Senate was required given “the propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions”). On the propensity for large assemblies to succumb to demagogues , see also id. (noting assemblies “seduced by factious leaders”). 84 See id. NOS. 53-58 (James Madison) (discussing the House of Representatives).

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Constitution would not just mirror popular will, but would shape it and change it into something more orderly and rational—and, in the Federalists’ eyes, so much the better.

This “rationalist” or “deliberative” majoritarianism laid out by the authors of the

Federalist Papers unquestionably has an elitist tinge. To some extent this elitism

emerges out of the basic “counter-demotic” tendencies of majority rule as a disciplining constitutional form that regulates popular access to politics.85 But the Federalists’ elitism

is also more direct and explicit. While Madison famously meant the Constitution to

establish a ship of state that would sail smoothly even though “[e]nlightened statesmen

will not always be at the helm,”86 the Federalists were nevertheless very much concerned

with placing political decision-making power in the hands of experts. Madison defended

representative government itself, along with its particular instantiation in the

Constitution, on the highly rationalist but not terribly populist grounds that the

constitutional system would “refine and enlarge the public views, by passing them

through the medium of a chosen body of citizens, whose wisdom may best discern the

true interest of their country.”87 Here, in the seminal defense of large representative

republics in Federalist No. 10, Madison clearly lays out what in Bruce Ackerman’s terms

is a “semiotic” rather than a “mimetic” view of representation88: even before considering

any “counter-majoritarian” separation of powers , Madison understands majoritarianism

itself to be a reconstructive rather than a reflective project. Majority rule in the United

States Constitution would not serve as a passive conduit for the unmediated popular will,

but would rather actively channel and even change that will. Representative majority rule

85 See supra Section II.B. 86 THE FEDERALIST NO. 10, at 60 (James Madison). 87 Id., at 61. 88 See 1 ACKERMAN, supra note 6, at 183.

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admitted a separation between legislative and popular majorities, and while elections and

other mechanisms undoubtedly limited that separation, the separation itself was not only

accepted but celebrated.

The elite composition of the legislatures—particularly relative to the “people

themselves”—stood as a central component of the Federalists’ rationalist representation.

While the concern for deliberation among experts was general, and thus encompassed the

construction of the House of Representatives,89 this rationalist elitism was nowhere more

pronounced than in the defense of the Senate. Of course, long before the Seventeenth

Amendment, the members of the Senate were appointed not directly by “the people

themselves” but by legislatures in the states.90 National elites chosen by local elites, the

Senators could thus provide “a defence to the people against their own temporary errors

and delusions,” providing “the interference of some temperate and respectable body of

citizens, in order to check the misguided career, and to suspend the blow mediated by the

people against themselves, until reason, justice and truth, can regain their authority over

the public mind.”91 The Federalists thus suggested without the slightest embarrassment that the institution of majority rule in the United States Congress would not only “refine”

popular majorities, but would occasionally actively deny them in order to save them.

That the Federalists hoped to institutionalize elite control of the legislatures may

seem unsurprising given their general concern that “the people themselves” not exercise

89 See THE FEDERALIST NO. 10, at 63 (James Madison) (suggesting that large republic will produce more “fit characters” among its representatives); id. at 64 (arguing that large republic will have representatives with “enlightened views and virtuous sentiments”); id. NO. 27, at 172 (Alexander Hamilton) (predicting “greater knowledge and more extensive information” in the “national councils”); id. NO. 58, at 395-96 (James Madison) (exhibiting concern at the “members of limited information and of weaker capacities” in large assemblies as in “collective meetings of the people”). 90 Compare U.S. CONST. art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.”) with id. amend. XVII, § 1 (“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof.”). 91 Id. NO. 63, at 425 (James Madison).

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regular operational control of government.92 The rationalist elitism extends, however,

even to the more radically democratic strands of the Federalist Papers. As we have seen,

the Federalists vigorously endorsed the ultimate political authority of “the people

themselves,” and translated this ideological commitment into practical reality to the

extent that they sought popular approval of their own constitutional proposal in relatively

informal and relatively inclusive conventions.93 At the same time, the sanguinity with

which Madison in particular viewed such popular action seemed to stem in no small part from the leading role played in that action by social and political elites. Madison’s

defense of the questionably legal actions of the Constitutional Convention itself stemmed

not only from the ultimate sanction to be given by the people, but also from the initial

sanction of the elite members of the Convention. Thus in the exercise of “the

transcendent and precious right of the people to ‘abolish or alter their governments as to

them shall seem most likely to effect their safety and happiness,’” Madison observes that

“it is impossible for the people spontaneously and universally, to move in concert

towards their object; and it is therefore essential; that such changes be instituted by some

informal and unauthorized propositions, made by some patriotic and respectable citizen

or number of citizens.”94 Here the defense of the Convention parallels the Federalists’

more general critique of “pure” democracy and populous assemblies: because the

“people themselves” are too large and unruly to rationally and effectively deliberate and

act, popular political action tends to require guidance by elites. The “respectable

92 See supra notes 69-79 and surrounding text. 93 See supra notes 66-68 and surrounding text. On the uniquely inclusive, democratic credentials of the conventions, see AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 4 (2005); Amar, supra note 29, at 1459 & nn.146-50. 94 THE FEDERALIST NO. 40, at 265 (James Madison) (quoting THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)).

28 James Lindley Wilson Draft, September 2009 citizens” provide order where constitutional form does not.95 Where Madison decried such informal ordering by elites in the legislative context as introducing an “oligarchic soul” into politics,96 in the “ticklish” context of informal popular politics, Madison on the contrary seems quite grateful for the “enthusiastic confidence of the people in their patriotic leaders.”97 The elites provide a steadying influence that maintains some semblance of rational, deliberative politics, and to that extent diminish the mobbishness of democratic action.

In describing the Federalists as elitist, I do not necessarily mean to castigate them for being “anti-democratic.” As the authors of the Federalist Papers vigorously and repeatedly reminded critics of the Constitution, nothing in that document restricted popular access either to the right of suffrage or to national office itself.98 Even the vile

Three-fifths Clause, defended (however half-heartedly) by Madison, did not disenfranchise slaves directly, but only failed to fully penalize slave states for

95 Josiah Ober presents a similar comparison in his discussion of ancient Athens between the informal ordering of elites among a democratic populace and the formal ordering of a constitutional system. OBER, supra note 34 at 325 (“By alluding in his speeches to his own attainments, and by pointing out his opponent’s lack of similar attainments, the orator demonstrated his ‘professional credentials’ as adviser and defender and tested the credentials of his opponent. This filtering process stood in place of the more formal systems of representation and elections that allow elites in modern democratic societies to take legitimate roles of political leadership.”). 96 See THE FEDERALIST NO. 58, at 396 (James Madison); see also supra notes 77-82 and surrounding text. 97 Id. NO. 49, at 341 (James Madison). 98 See id. NO. 36, at 223 (Alexander Hamilton) (“There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all.”); id. NO. 41, at 274 (James Madison) (referring to “the Representatives of the United States, elected FREELY, by the WHOLE BODY of the people”); id. NO. 57, at 385 (James Madison) (“Let me ask whether every circumstance [of the Constitution] is not, on the contrary, strictly conformable to these principles [of republican government]; and scrupulously impartial to the rights and pretensions of every class and description of citizens?”); id. NO. 60, at 404 (Alexander Hamilton) (dismissing fears that the federal government would limit the suffrage of the poor); id. at 408-09 (emphasizing that the federal government would have no power to provide property qualifications for voters or for those standing for election); see also U.S. CONST. art. I, § 2, cl. 1 (“Electors [for the House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”); id. art. I, § 3, cl. 1 (declaring Senators chosen by state legislatures); id. art. II, §1, cl. 2 (giving state legislatures power to “appoint, in such manner as [they] may direct,” presidential electors).

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disenfranchisement.99 Thus, without forgetting the politically voiceless women, slaves,

immigrants, paupers, and others disenfranchised by the states, it would be unfair to

dismiss as sheer ideological double-talk Madison’s sweeping claims that “[t]he electors are to be the great body of the people of the United States,” and that “the objects of

popular choice” are to be “[e]very citizen whose merit may recommend him to the esteem

and confidence of his country,”100 and it would ignore too much to view with pure

cynicism Hamilton’s bolder statement that American government “ought to rest on the

solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow

immediately from that pure original fountain of all legitimate authority.”101 If the

Federalists and their constitution limited and ordered the channels of access to political

power, and if they did less to broaden them than we today would like, they nevertheless

made no effort to close off those channels to whoever might successfully navigate them.

But if the Federalists’ constitution did not have a formally oligarchic countenance,

we should not close our eyes to the extent to which its soul was what we might call

“natural-aristocratic.” For if the constitutional system left politics open to stalwarts who transcended any “disadvantages of situation,” the Federalists recognized without much regret that such morganatic marriages between poverty and power would comprise only

“occasional instances.”102 And even the most brilliant and successful “men from Hope”

do not guarantee the political significance of Hope’s more ordinary population. The

99 U.S. CONST. art. I, § 2, cl. 3 (apportioning Representatives according to “the whole number of free persons . . . and . . . three fifths of all other persons”). On Madison’s defense, see THE FEDERALIST NO. 54 (James Madison). On the half-heartedness, though not to say insincerity, of the defense, see id. at 371 (claiming to be laying out “the reasoning which an advocate for the southern interests might employ on this subject: And although it may appear to be a little strained in some points, yet on the whole I must confess, that it fully reconciles me to the scale of representation, which the Convention have established”). 100 THE FEDERALIST NO. 57, at 385 (James Madison). 101 Id. NO. 22, at 146 (Alexander Hamilton). 102 Id. NO. 36, at 223 (Alexander Hamilton).

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alternative possibilities presented by rotation, lot, the lawmaking jury, the mob, the club,

and the convention, promoting in their various ways the ordinary citizen’s access to

politics, should remind us of the extent to which the technical apparatus of electoral

majority rule limits popular political activity even in the absence of explicit exclusions.

The natural aristocrats who read and write such papers as this may see nothing untoward in such an arrangement, and indeed we have seen that disciplining the people through majoritarianism may serve many valuable purposes, combating as it does the disorder, the inefficiency, and even the inegalitarianism of formless, mobbish politics. But celebration of American majoritarianism, however justified, should not ignore the possibility that

Madison’s declaration that the Constitution ensures “the total exclusion of the people in their collective capacity from any share” in American government does not only represent a formal description of representative government, but also a substantive judgment regarding the wisdom of diffusing political power to the tumultuous, unruly, spontaneous, and altogether common people themselves.103

III. Class and Classlessness: Majoritarianism’s Social Questions

A. Democracy and Equality: The Federalist Revision of Majority Rule

If the Federalists’ proposal for establishing electoral majority rule was explicitly

motivated by a desire to limit direct popular control of politics, it nevertheless remains true that the Federalist constitution reflected a solidifying American consensus in favor of a kind of egalitarianism that we might fairly call democratic. The Federalists were elitists, but they were not “enemies of the people.” For all the conditions and caveats with which the Federalists defended it, the “republican principle” of majority rule104

103 Id. NO. 63, at 428 (James Madison). 104 THE FEDERALIST NO. 10, at 60 (James Madison).

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represented a radical break from much prior European theory and practice. The embrace

of a simple “one person, one vote” counting rule—abstracting for the moment from

difficult questions regarding districting or the scope of the franchise—required a

willingness to see poor and propertied votes as sufficiently similar entities that they could

comprise together the denominator of the same majoritarian fraction. The constitutional

vindication of this vision of individuals (and their votes) as commensurable across

classes, and the accompanying view that the grant of political power to the majority of

the homogenous class of “citizens” could conceivably be fair and just, was a significant

democratic triumph.

The Federalists were by no means the inventors—nor necessarily the most

committed proponents—of this broad majoritarian theory, which had more radical

adherents in post-Revolutionary America.105 But the Federalists were able to provide a

convincing account of American society that made majoritarianism comprehensible as a

just and legitimate political principle. At the same time, however, the Federalists did not

break with the anti-majoritarian past completely. In embracing modern, egalitarian

visions of majority rule, the Federalists refused to ignore what they saw as the risks of

substantive inequality stemming from “an unjust combination of a majority of the

whole.”106 From the very beginning, therefore, the constitutional construction of

majority rule was limited by concerns sounding in basic fairness and what we might

105 At the time of the Constitutional Convention, and indeed for a long time afterwards, many states retained either property or tax-paying requirements for voters. See KEYSSAR, supra note 13, at 8-52. In 1787, Madison himself did not necessarily support the abolition of property requirements and what I call the majoritarian idea of commensurability of individuals’ votes, though he later revised his views in a more democratic direction. See ROBERT DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? 31-37 (2001). Whatever Madison’s individual views, however, the views publicly expressed in the Federalist in support of the Constitution do importantly support the commensurability of individuals’ votes, as I hope to show in this Part. 106 THE FEDERALIST NO. 51, at 351 (James Madison).

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today call “minority rights.” To a great extent, the particular minority for which the

Federalists feared was the rich—a group which twenty-first century democrats might

think little need constitutional solicitude, but one which had on its side two thousand-

year-old arguments suggesting the unfairness of majority rule. Such arguments still had

some force in America in 1787, and caused the Federalists to condition their support for

majority rule even as they gave majoritarianism the firm theoretical and constitutional

foundation that destroyed the possibility of formal American oligarchy . Skeptics may see

the Federalists’ adoption of egalitarian majority rule as a mere formalism in light of constitutional structures that trammeled popular power and arguably helped preserve the

de facto, if not always the de jure, rule of the rich. But formalisms need not be

completely empty. The Federalists’ mix of formal majoritarian equality and substantive

counter-majoritarian concern also laid the groundwork for future American constitutional

developments that were far more than the tribute that oligarchy pays to democracy.

Unsurprisingly, the Federalists did not resolve world-historic tensions between rich and poor, majority and minority. But they did, for better or worse, provide Americans with a constitutional and conceptual structure in which citizens could potentially negotiate those tensions without recourse to explicit class warfare.

In order to understand the significance and the subtlety of the Federalist revision

of majority rule, in this Part I first discuss the English “mixed government” theory, which

reflected long-received wisdom about social structure and fair representation suggesting

that majority rule would inevitably be tyrannical. The English exported these views to

their American colonies, and the theory—and American practice in light of the theory—

thus provides an important context for the Federalists’ acceptance of a certain kind of

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majoritarianism. I then turn to the Federalists’ ultimate rejection of mixed government

theory in favor of an egalitarian, individualist majority rule, as well as to the lingering fears that led the Federalists to establish a majority rule which—they hoped—would limit the mobbishness and disorder of democratic politics.

B. Mixed Government and the English Class Legacy

The continuity between today’s American constitutional order and that of the

eighteenth-century Founders can sometimes obscure the foreignness of the past, and the

extent to which the Founders were required to respond to concerns very different from

ours—or, perhaps more accurately, quite similar concerns, the force of which we can

understand better when we see them differently articulated and differently framed. The

Federalist Founders were firmly rooted in their intellectual and political traditions, but

they were also transformative thinkers and politicians, and understanding their

transformations requires understanding what they left behind. In the case of the

Federalist transformation of majority rule, they left behind a venerable Anglo-American

tradition linking class stratification and constitutional form that had in large part been

justified on grounds of preventing majoritarian democratic excess. As we shall see, the

Federalists did not completely abandon the concerns underpinning this tradition, but they

had to address those concerns in a manner that spoke to the American social and political

condition. This the pre-existing Anglo-American constitutional theory seemed incapable

The revolutionary era Americans inherited from England a theory of “mixed

government” that attempted to structure government to secure an ideal balance between

different orders of society. (This English view, in turn, was rooted in a long tradition of

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European political thought stretching back to Polybius and Aristotle.107) In the English

view, these orders were the one, the few, and the many—that is, the Monarch, the

aristocracy , and the people, represented in Parliament by the Crown, the House of Lords,

and the House of Commons.108 Perhaps the most difficult aspect of this theory for modern democratic ears to comprehend is not the existence of a monarch or a nobility but rather the idea that “the people” were merely a proper subset of the citizenry, one part of the wider body politic. As were the Athenian hoi polloi or the Roman plebians, so were the English “people” understood as only one class among others—in the English case, as one of three separate social estates.109 With society viewed as comprised of such

incommensurable (and often mutually antagonistic) orders, it seemed not only

comprehensible but ideal to seek constitutional forms that would preserve a balance

between these orders, not only as a matter of fairness or justice between classes, but also

as a means of harnessing in government the special virtues of each estate.110 By the

lights of such a theory, of course, simple majority rule across the citizenry would appear

unjust, if not tyrannical, as the nobility and the Monarch could not be adequately

represented by the socially alien “people” who would comprise any majority.

At the heart of this English anti-majoritarianism stood the tradition of bicameralism. Ignoring for the moment very real problems of highly restrictive suffrage

(even among adult male citizens), rotten boroughs, and the like, the House of Commons,

107 For my own interpretation of Aristotle’s views of democracy, majority rule, and political “mixing,” see James Lindley Wilson, Deliberation, Democracy, and the Rule of Reason in Aristotle’s Politics (unpublished manuscript, on file with author). 108 WOOD, supra note 8, at 197-200. 109 See id. at 199; see also id. at 222 (“[D]emocracy meant government literally by the social estate of the people.”). 110 See id. at 198 (“Each of these simple forms [of government placing all power in one class] possessed a certain quality of excellence: for monarchy , it was order or energy; for aristocracy, it was wisdom; and for democracy, it was honesty or goodness.”).

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as its name suggested, could by the standards of the day reasonably claim to represent the

majority of the English population. But while the “Westminster” model is today

associated with unicameral assembly supremacy, in the eighteenth century—at least

according to mixed-government theory—the Commons and the majority it ostensibly

represented were decidedly not supreme, but were rather the political equals of the House

of Lords and the tiny aristocratic minority it represented. English bicameralism was self-

consciously anti-democratic in that it meant to deny the unmixed rule of the many and the

“anarchy and tumult” thought to accompany popular supremacy.111 (Of course,

bicameralism was also anti-aristocratic and anti-monarchical in that it professed to

protect against the perversions accompanying the rule of any single class.) Bicameralism

was thus an institutional reflection of the political incommensurability of individuals in different social classes: each order required its own representative body, comprised by members of that order, who alone could satisfactorily represent the order’s interests.

While majorities might rule within classes (and therefore within the House of Commons or the House of Lords), majority rule across the citizenry as a whole would have appeared to proponents of mixed-government theory to unbalance politics and effectively to disenfranchise two of the three constitutive orders of society.

While post-revolutionary Americans rejected the English institutions of monarchy

and hereditary nobility, they did not immediately dispense with mixed-government

theory.112 Without the social apparatus of nobility, of course, it was not obvious in

republican America what the distinct social orders were, nor how exactly to instantiate

111 Id. at 198. 112 See id. at 200-06.

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politically the “aristocratic” and “monarchical” elements.113 One strategy, pursued in

various ways by a number of states, was to separately represent the “people” and the

“propertied.”114 While the mixed-government theory typically presented “the few” as

aristocratic rather than oligarchic—that is, “the few” were defined by their wisdom and

virtue, rather than by any crass attachment to the economic interests of the rich—the use

of property qualifications in place of a system of nobility made more explicit the bleeding

between aristocratic and oligarchic elements that was presumably always present in

mixed-government practice. While the conceptual separation of persons and property did

at least provide a coherent distinction between the constituents of lower and upper

houses, and thus a basis for continued “mixing” and attendant bicameralism, it also stood

in some tension with revolutionary ideals of republican equality—and, arguably, mixed-

government theory’s own emphasis on virtue rather than economic class solidarity.115

Nevertheless, the concept of a politically separate propertied class revealed the continuing American commitment to mixed government, bicameralism, and, therefore, anti-majoritarianism.

Even in these most oligarchic, explicitly economic forms, American mixed-

government theory may have been driven less by a direct sense of economic class interest

than by an aristocratic elitism. Property was not just an interest, but a proxy for wisdom and virtue, a “criterion by which [Americans’] ‘senatorial part’ could be more rigidly

113 Id. at 207 (“[H]owever confident the [English] Commonwealthmen had been over the possibility of erecting a mixed republic, it was not to be a simple matter to realize in the American environment.”). 114 See id. at 214 (discussing states with property qualifications for senatorial candidates and electors); id. at 215 (describing Thomas Jefferson ’s recognition that “[i]n some of the states . . . the legislature was chosen so that the lower house represented persons and the upper house the property of the state”). Of course, these developments were not without their critics. See id. at 503 (“[T]he senates had become for some blatantly self-interested bodies representing the distinct concerns of the propertied or rich of the community set in opposition to the common good of ordinary people.”). On the states’ use of property requirements for voting at the time of the Constitutional Convention, see KEYSSAR, supra note 13, at 8-21. 115 Id. at 221-22.

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distinguished.”116 The representation of property was just one aspect of the American

quest to perfect mixed government by replacing the corrupt hereditary nobility with a

natural aristocracy—an elite class rendered elite by their merit rather than by their birth.117 But if American mixed-government theory substituted modern meritocracy for

archaic feudal conceptions of virtue and social order, it did not thereby rid itself of class

conflict or anti-majoritarianism. Even if the “natural aristocracy” was too broad and

diffuse to constitute an integrated “class interest,” an institutional commitment to the rule

of the “best men” inevitably favors the rich and the socially established—that is, the elite.

(This is precisely why the Athenian people, as well as a long line of thinkers stretching

back to Aristotle, saw elections as relatively undemocratic: they tended to leave offices

in the hands of the “best persons” in contrast to rotation and lot, which virtually

guaranteed that many offices would be controlled by the hoi polloi.118) If the natural-

aristocratic upper house was not to be limited to feudal lords, neither would it likely be

staffed by commons.

The propensity for aristocratic institutions (however “natural”) to exclude

commoners was not lost on post-revolutionary Americans. On the contrary, the attempt to segregate an aristocratic element in the service of mixed-government bicameralism was only one aspect of a larger debate regarding the roles of the natural aristocracy and

the common people in active political rule. Gordon Wood writes that Antifederalist

116 Id. at 217. 117 See, e.g., id. at 237 (“Most American believers in the theory of mixed government in 1776, like Jefferson, had anticipated senates composed only of an aristocracy of talent . . . . Such senates were by no means to be a European aristocracy, a hereditary nobility artificially protected by law and distinguished by titles. The American aristocracy would be a natural one, made up of men of proven merit.”). 118 See supra note 34 and surrounding text (noting the Athenian people’s skepticism regarding elections, and the long-standing view that elections were “aristocratic” or “oligarchic”).

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critics of the Constitution were highly skeptical of the ability of the talented elite to

represent the people:

Such constant admonitions to the people of the perils flowing from their too easy deference to the ‘natural aristocracy’ were necessary because the Antifederalists were convinced that these ‘men that had been delicately bred, and who were in affluent circumstances,’ these ‘men of the most exalted rank of life,’ were by their very conspicuousness irreparably cut off from the great body of the people and hence could never share in its concerns nor look after its interests.119

Such criticisms tended to adopt the premises of mixed-government theory at the same

time that they invert its conclusions. Mixed-government theory drew its strength from

the idea that there existed in society different classes or orders that each merited separate representation in government. Antifederalist critics of natural aristocracy implicitly accepted the idea that society was comprised of different classes separated by chasms that representation could not bridge,120 but exhibited less concern for “mixing” in pursuing what they saw as their partisan affiliation with “the great body of the people.” Federalist defenders of natural-aristocratic government were thus pressured either to reject this democratic argument for popular supremacy or to reject the theory of social stratification that underpinned both mixed-government theory and the broader Antifederalist attack on

elite representation.121 In the class-based terms of mixed-government theory, even a

“natural” aristocracy was anathema to democracy understood as unmixed rule of the

common people.

119 WOOD, supra note 8, at 490. 120 See id. at 491 (“Society was not an organic hierarchy composed of ranks and degrees indissolubly linked one to another; rather it was a heterogeneous mixture of many different classes or orders of people.”) (quotation omitted). 121 As we shall see, the Federalists chose to endorse popular supremacy while denying the theory of social stratification, enabling them to see natural aristocracy as compatible with a certain kind of democracy. See infra Section III.C and in particular note 174.

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The idea that natural aristocracy—that is, a system for selecting the most talented

men (of whatever birth or wealth) for political office—could be seen as anti-democratic

helps to reveal the anti-majoritarianism deeply embedded even in the American

refinements to mixed-government theory. As made particularly evident in discussions of

bicameralism, the aristocratic element of society was explicitly seen as separate from “the

people,” separate if not by wealth at least by wisdom and virtue. Thus “the best men,”

even if selected without formal property qualifications, were not necessarily “of the

people”—remembering that “people” tended to refer not to the citizenry generally but to

the commoners, the hoi polloi.122 This stark separation of elite and masses made natural

aristocracy (even within mixed government) suspicious from the perspective of

democratic partisans, but the converse of this suspicion was the view that the demos was

itself only one class among others, what we today might pejoratively call an “interest

group.” As Wood puts it:

Many were prepared to conclude that the great danger to republicanism was not magisterial tyranny or aristocratic dominance but ‘faction, dissension, and consequent subjection of the minority to the caprice and arbitrary decisions of the majority, who instead of consulting the interest of the whole community collectively, attend sometimes to partial and local advantages.’123

Just as in the English system, with its monarch and its lords, majority rule in American

mixed-government theory appeared to be a factious usurpation of government by the

commoner class. Majoritarianism in the post-revolutionary period was thus the province of radical democrats who rejected mixed-government theory altogether.

122 See WOOD, supra note 8, at 516 (describing “the central issue the Constitution posed” as “whether a professedly popular government should actually be in the hands of, rather than simply derived from, common ordinary people”). 123 Id. at 502; see also id. at 509 (discussing view that natural aristocracy “had to dominate public authority in order to prevent America from degenerating into democratic licentiousness”).

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The radicalism of majority rule, and the anti-majoritarianism of mixed-

government orthodoxy, can perhaps best be seen in the debates over Pennsylvania’s

unicameralism, one of the most majoritarian governmental regimes to appear in post-

revolutionary America. In stark contrast to Massachusetts’s bicameralism of persons and

property that was explicitly defended as providing constitutional protection for the rich,

in Pennsylvania the presence of an upper house was directly criticized for

constitutionalizing inequality.124 The Pennsylvanian democrats’ view, which triumphed

in the state constitutional convention of 1776, was that republican equality implied

unmixed democracy in the form of a single assembly rather than a bicameral mixture. In

the eyes of the democrats, “[t]he result of such a mixture was always a bitter struggle—a

struggle that could be avoided only by the recognized presence of a single order in the community.”125 Once that single order—“the people,” now understood as the entire

citizenry—was recognized, there seemed little need for the aristocratic apparatus of

bicameralism, which in its anti-majoritarianism could only serve to counter the common interests of the people as expressed by the people’s assembly.126 Opponents of the

radical Pennsylvanian Constitution were quick to denounce it as an affront to mixed-

government theory, which it was, and as an “execrable democracy.”127 The coherence of

those criticisms, and the very rarity on the American continent of Pennsylvania’s

124 Compare id. at 220 (documenting defense of Massachusetts’s bicameral arrangement on grounds that “the rich must be specifically protected in the constitution”) with id. at 230-31 (noting Pennsylvanian radicals’ view that “[b]icameralism would only breed distinctions”). 125 Id. at 230. 126 Interestingly, the Pennsylvania democrats were not quite unicameral parliamentary supremacists, but their suspicion of the assembly apparently stemmed less from any concern about unmixed democracy than from a general suspicion of formalized government and its separation from the people. Thus the constitutional checks placed on the assembly came not in the form of an upper house or strong executive but in the form of popular restraints such as a short term of office, the publication of all proposed laws, and the septennial Council of Censors, a popular body that was meant to judge whether the government had overstepped constitutional bounds. See id. at 231-32. The radical democrats were thus skeptical even of majority rule as a formal, and thus to some extent counter-demotic, constitutional principle. 127 Id. at 233.

41 James Lindley Wilson Draft, September 2009 unicameral experiment, highlight just how anti-majoritarian mixed-government theory was, and how unremarkable that anti-majoritarianism seemed to what was then the

American mainstream. At the same time, the democratic challenge to mixed-government theory and to bicameralism put pressure on this anti-majoritarianism and the theory of social stratification that underlay it. As long as the idea of narrow class-based representation persisted, defenders of bicameralism—and indeed any departures from majority rule—all too easily appeared to be enemies of the people.

To the extent that mixed-government theory reigned supreme, being designated an “enemy of the people” may not have been all that embarrassing. The whole point of the theory was to prevent government from being too “friendly” with any of the orders of society, including the common people. But by the time the U.S. Constitution was written in 1787, mixed-government theory in America was under severe strain. Democratic criticism, exemplified by the radical Pennsylvania unicameralists and the anti-aristocratic

Antifederalists, exposed doubts as to whether mixed government was compatible with self-rule in a republic. Meanwhile, Federalists in search of efficient, good government sought to justify for the natural-aristocratic rule of the talented without denying the popular supremacy that increasingly appeared inseparable from republicanism. The solution was to reject the class-based social theory behind mixed-government theory. As the Pennsylvania democrats foreshadowed, this move made majority rule comprehensible as something other than lower-class tyranny. But the Federalists were not so sanguine as the Pennsylvania radicals about the actual rule of the common people, and not so quick to dispense with classical concerns about majority rule even as they helped usher in the social and political theory that made it desirable.

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C. Form, Faction, and Federalist Majority Rule

James Madison was quite explicit in stating that the fundamental difficulty facing the framers of the United States Constitution was “combining the requisite stability and energy in Government, with the inviolable attention due to liberty, and to the Republican form.”128 One element of this balancing act involved establishing a constitutional order promoting the rule of the “best men”—in Madison’s words, “men who possess the most attractive merit, and the most diffusive and established characters”129—without the concomitant “total exclusion of the people in their collective capacity”130 obliterating the

“spirit and form of popular government” to which the Federalists were genuinely

128 THE FEDERALIST NO. 37, at 233 (James Madison). 129 Id. NO. 10, at 63 (James Madison). Note that “diffusive” here has what is today a slightly less common meaning of “dispensing or shedding widely or bountifully.” OXFORD ENGLISH DICTIONARY, s.v. “diffusive,” 1 (2d ed. 1989). Thus Madison implies that the men in question have characters that are both excellent and widely felt. 130 THE FEDERALIST NO. 63, at 428 (James Madison). As I suggested at the end of Part II, this well-known defense of the “total exclusion of the people in their collective capacity” has something of a dual meaning. See supra note 101 and surrounding text. Most clearly and directly, the “exclusion of the people” has what I have called a formal element: it refers to the rejection of direct, formless democracy (rule of “the people”) in favor of representative republicanism (rule of the “representatives of the people”). But the “exclusion of the people” also has hints of a substantive element—that is, the exclusion from government of the lower classes, the people as hoi polloi. Notably, the discussion of popular exclusion comes in the context of a defense of the Senate as a “temperate and respectable body of citizens” protecting the people against their own “irregular passion” or the “artful misrepresentations of interested men.” Id. at 425 (James Madison). The Senate was explicitly defended as elitist, and indeed John Jay went so far as to praise the Senate (appointed by state legislatures) as having “vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal taking advantage of the supineness, ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electorate.” THE FEDERALIST NO. 64, at 432-33 (John Jay). (Note that here the “people in their collective capacity” are distrusted not only in relatively formless legislative deliberation but in the context of formal, representative electoral structures.) These “interested” men were apparently more likely to be on the side of the masses. Cf. id. NO. 10, at 57 (James Madison) (expressing concern about “the superior force of an interested and over-bearing majority”). Extending the size of the republic would make majorities likely to support not the “interested” but the elite, “established characters.” Id. at 63. Moreover, in the discussion of popular exclusion the Senate was contrasted with “the popular branch,” that is, the British House of Commons or other foreign counterparts to the American House of Representatives, a denomination that seems to be a holdover of mixed-government theory’s association of the lower house with the lower class. THE FEDERALIST NO. 63, at 430 (James Madison). Nevertheless, this “substantive” aspect of popular exclusion should not be overstated. Even in these passages, Madison emphasizes that both legislative houses are connected to the “entire body of the people themselves” (i.e., not just the people-as-lower-class), and that the Senate will never be an “aristocratic body.” Id. at 431. This Federalist ability to see themselves as elitist and yet un-aristocratic is precisely the subject of this Section.

43 James Lindley Wilson Draft, September 2009 dedicated.131 That is, in terms of mixed-government theory, the Federalists needed to explain how the relatively natural-aristocratic regime they saw as so salutary, and indeed so necessary for national survival, could be understood as representative of the people and not simply the aristocratic estate. Of course, the Federalists could display their democratic credentials by emphasizing that the Constitution imposed no formal barriers to office-holding by men of humble origins.132 But to the extent that the Constitution was explicitly understood as tending to select for a superior class of men (even if born poor), by the lights of mixed-government theory this appeared as simply a new means of identifying (and empowering) the separate aristocratic order in the American republic.

The Federalists resoundingly rejected mixed-government theory and the idea that elite office-holding conflicted with mass sovereignty. In doing so, the Federalists thus helped establish majority rule as a fundamentally “republican principle,”133 at the same time that they established a limited form of majoritarianism that very much protected against the rule of the common demos.

The Federalists implicitly rejected mixed-government theory’s class-based conception of representation by repeatedly emphasizing that each part of the proposed federal government represented the entire body politic. In an early discussion of representative government, Madison explicitly celebrated what he claimed was the

American innovation in adapting European practices of representation to “unmixed and extensive republics.”134 While that and other early essays in the Federalist tended to

131 THE FEDERALIST NO. 10, at 61 (James Madison). 132 See supra notes 98-101 and surrounding text. 133 THE FEDERALIST NO. 10, at 61 (James Madison). 134 Id. NO. 14, at 84 (James Madison). Cf. WOOD, supra note 8, at 202-06 (discussing the post- revolutionary American efforts to conceptualize “mixed republics” in their effort to apply mixed- government theory to American states without monarchies or nobilities).

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focus on the innovation in “extensiveness” which supported the development of a strong federal government, the Federalists often returned to the “unmixed” nature of the new government. Madison indeed boldly declared lack of “mixture” to be virtually definitive of republican government:

[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people . . . . It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.135

Notably, all of the government’s powers are to be derived from “the great body of the

people” rather than from any “favored class.” The “people” are neither limited to

controlling a single branch of government, nor are they limited to existence as a “favored

class,” (i.e., the lower class), but rather are equated with “the great body of society.” A

republican government, argued the Federalists, acknowledged only one politically salient

order of society: the people.

Unsurprisingly, the Federalists were clear that their proposed federal government

was republican, and thus unmixed. Alexander Hamilton declared that “[t]he fabric of

American Empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure original fountain of

all legitimate authority.”136 Hamilton was satisfied that the Constitution met this

requirement, rejecting fears of a national military in part on the grounds that “the whole

power of the proposed government is to be in the hands of representatives of the

135 THE FEDERALIST NO. 39, at 251 (James Madison). Any alternative to unmixed popular government, suggested Madison, would effectively allow “a handful of tyrannical nobles” to rule. Id. 136 Id. NO. 22, at 146 (Alexander Hamilton).

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people.”137 Madison used similar metaphor to reach a similar conclusion, noting that

“the people are the only legitimate fountain of power, and it is from them that the

constitutional charter, under which the several branches of government hold their power,

is derived.”138 Madison also pointed out that the House of Representatives was elected

139 by the “WHOLE BODY of the people,” suggesting that the House represented all of

society rather than merely the common class while at the same time arguing that this fact

increased the democratic credentials of the House relative to the British House of

Commons, where “so great a proportion of the members are elected by so small a

proportion of the people.”140 Here as elsewhere, the Federalists use individual suffrage rather than class representation as the measure of popular control of government. More generally, Madison claimed that every branch of the federal government derived its power “directly or indirectly from the great body of the people,” rather than from separate classes.141 While the federal government was to be divided, the source of each

part’s power was similar—that is, each branch was popular—and so the Constitution was

presented as establishing an unmixed republic for an unmixed society.

That society was “unmixed” and to that extent classless did not suggest any

commitment to social egalitarianism. The Federalist rejection of class was hardly a

proto-Marxian vision of economic equality. On the contrary, the Federalists saw

137 Id. NO. 28, at 178 (Alexander Hamilton). See also id. NO. 21, at 131 (Alexander Hamilton) (suggesting the view that the states were unmixed republics in arguing that federal Guarantee Clause power would be unlikely to be abused because “[w]here the whole power of the [state] government is in the hands of the people, there is the less pretence for the use of violent remedies”). 138 Id. NO. 49, at 339 (James Madison). Strictly speaking, Madison is here summarizing the views expressed by Thomas Jefferson in his “Notes on the state of Virginia.” Madison goes on, however, to conclude that “[t]here is certainly great force in this reasoning,” and only disagrees with Jefferson’s particular proposals regarding procedures for constitutional amendment. Id. 139 Id. NO. 41, at 274 (James Madison). 140 Id. NO. 41, at 273 (James Madison). 141 Id. NO. 39, at 251 (James Madison). For Madison’s explanation of how each branch meets this criterion, see id. at 252.

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inequality as natural, inevitable, and more or less desirable. They offered, however, an

interpretation of that inequality radically different from that offered by mixed-

government theorists, and that interpretation had profound consequences for the

American understanding of the link between society and constitutional form, including

majority rule. The critical Federalist innovation for these purposes was the shift from

“class” to “faction” in describing the different (and unequal) units into which society

fractured. Replacing the relatively feudal class-based vision of inequality underpinning

mixed-government theory with an arguably more modern perception of society as highly

differentiated and mobile, the Federalists made comprehensible their equation of “the

people” with society as a whole.142 This equation made majority rule conceivable in a

way that it could not have been under the suppositions of mixed-government theory, but

it did not mean that majority rule was unproblematically just. The Federalists replaced

the problem of “majority class”—the old mixed-government problem of majority rule

enabling democratic tyranny, the exploitative rule of the hoi polloi—with the problem of

“majority faction.” The Federalists thus did not eliminate anti-majoritarianism so much

as change and update it.

Madison laid out his theory of inequality-as-faction in his first essay as Publius, the famous Federalist No. 10. In a forceful rejection of any republican notion of

142 The political sociologist Ernest Gellner has suggested that mobility and differentiation (in the form of complex division of labor) are essential characteristics of the modern society, in contrast to the highly rigid and stratified “agrarian” society. Gellner points out that the economic need for rapid adaptability encourages processes of common socialization that render individuals more standardized—and thus generally capable of moving interchangeably into different positions in the economy as changing circumstances demand. See ERNEST GELLNER, NATIONS AND NATIONALISM 19-38 (1983). Importantly for our purposes, Gellner suggests that this economic and social commensurability leads to a kind of egalitarianism: “Modern society is not mobile because it is egalitarian. It is egalitarian because it is mobile.” Id. at 24-25.

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homogeneity of interests, Madison argues that “[t]he latent causes of faction are . . . sown

in the nature of man”:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. . . . The diversity in the faculties of men from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. . . . [T]he possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.143

The emphasis on property in this story of social differentiation may seem to replicate

classical mixed-government theory in identifying the central social cleavage as being that

between “persons” and “property.” Madison seems clear, however, that social

differentiation is much more fine-grained than that one fault line might suggest. Though

“the most common and durable source of factions, has been the various and unequal

distribution of property,”144 Madison gives a number of reasons to believe that we should

not take this to mean that society splits only into two or three rigidly defined classes.

The first reason we should not take Madison’s theory of inequality to be old

classist wine in new factional bottles is that Madison clearly identifies non-materialist

causes of faction that divide society in ways that do not depend on property holdings. As

we saw in the lengthy passage above, Madison identifies “different opinions” resulting

from the fallibility of reason and liberty of conscience as a central divisive force.145

Similarly, he points to charismatic leaders and “the human passions” as means of

143 THE FEDERALIST NO. 10, at 58 (James Madison). 144 Id. at 59. 145 See also id. at 58 (identifying “zeal for different opinions concerning religion ” as a major cause of faction”). More recently, John Rawls has made this connection between liberty and the exercise of reason, on one hand, and differentiation (Rawls calls it “pluralism”) on the other, the centerpiece of his political philosophy . See RAWLS, supra note 3, at xviii (“Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime.”).

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propelling “mankind to fall into mutual animosities . . . where no substantial occasion

presents itself.”146 Thus economic inequalities are not the sole determinants of social and

political division. The second, and perhaps more important, reason to be confident that

Madison’s theory of inequality does not reaffirm the classical vision of highly stratified

class structure is that Madison viewed the economy itself as highly differentiated. As we

saw above, Madison believed that the natural diversity of human faculties resulted in “the

possession of different degrees and kinds of property.” “Property” is thus no longer

understood as a monolithic interest, but something that itself is internally diverse. (More

accurately, and as Madison recognizes, the possessors of property are diverse. Part of the

shift from class to faction involved the refusal to reify “property” as an indivisible social

and political entity.) This view is made more explicit by Madison in Federalist No. 51,

where he points out that in the United States, “society will be broken into . . . many

parts,” resulting in a “multiplicity of interests.”147 Alexander Hamilton made a similar

point in rejecting the possibility that the House of Representatives could be made so large

as to accommodate the actual representation of “all classes of the people.”148 Hamilton

went on to propose what we might call a sectoral theory of economic faction, discussing the various interests of “mechanics,” manufacturers, artisans, merchants, “the learned professions,” and the “landed interest.”149 While we might today be a bit skeptical of

Hamilton’s political economy —for example, he takes the interests of the landed sector as

“perfectly united from the wealthiest landlord to the poorest tenant”150—the point

146 THE FEDERALIST NO. 10, at 58-59 (James Madison). 147 Id. NO. 51, at 351, 352 (James Madison). 148 Id. NO. 35, at 219 (Alexander Hamilton) (arguing that such actual representation “would never take place in practice”). 149 Id. at 219-20. 150 Id. at 220. In fairness to Hamilton, some theories of political economy with a sectoral focus do live on today, for instance in explaining the relationship between domestic politics and international trade. See,

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remains that the Federalist vision of society was one of substantial differentiation that

went far beyond crude and broad class distinctions.151

The replacement of class with faction as the relevant unit of social and political

“combination” allowed the Federalists to take a different view of majority rule than

mixed-government theory seemed to permit.152 In a mixed (that is, classed) society, the

rule of a majority of individuals appeared as a surrender in the political class war and an

unjustified concession to dominance by a mere part of the polity. In a mixed society, not

all individual citizens were commensurable: the vote of a member of the “people” could

not legitimately be compared with (or cancel out) the vote of a member of the rich and

propertied class. (Alternatively, we could say that a majority of all individuals—

effectively, given class polarization, the members of one class—could not represent the

members of other classes.) Hence the need for institutional strategies of bicameralism

and separation of powers in eighteenth-century England and America, in which policies

required the support of each order of society. By contrast, in an unmixed society,

individual citizens appeared politically commensurable: at least as far as the federal

constitution was concerned, the votes of ten men without property could be compared

with, and could cancel out, the votes of ten men with extensive property holdings.153

e.g., RONALD ROGOWSKI, COMMERCE AND COALITIONS: HOW TRADE AFFECTS DOMESTIC POLITICAL ALIGNMENTS (1989). 151 The extent of potential social and economic differentiation in the Federalists’ eyes also becomes apparent in their repeated discussion of the theme that the national society was much more differentiated that the societies within individual states. See, e.g., THE FEDERALIST NO. 56, at 382 (James Madison) (noting that “[f]ew of [the states] have made much progress in those branches of industry, which give a variety and complexity to the affairs of a nation”); id. NO. 60, at 406 (Alexander Hamilton) (arguing that national representation “will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single state”). 152 The Federalists use “combination” to refer to alliances of avaricious or otherwise abusive social groups. See, e.g., id. NO. 10, at 63 (James Madison); id. NO. 70, at 471 (Alexander Hamilton). 153 This may not have been true in individual states, as the U.S. Constitution did not abolish property requirements for suffrage. The federal constitution, however, did not itself establish any such property restrictions, and thus, for instance viewed any member of the electorate for the state’s most populous house

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(Alternatively, we could say that the views of a majority of individual citizens adequately

represented all citizens.) Such commensurability seemed appropriate once those

individuals were seen as all equally of “the people” or “the great body of society” rather

than as members of highly stratified and highly antagonistic economic and political

orders. Thus the Federalists could describe majority rule across all of society, as

opposed to multiple majority rules within each order of society, as “the fundamental

principle of free government.”154

The revision of society as unmixed rather than mixed thus naturally led to the

elevation of majority rule. But one might wonder whether the shift from class to faction

in the theory of social inequality is quite the same as a shift from a politically mixed to a

politically unmixed society. Why wouldn’t the presence of more different social groups

make representation (by a majority or indeed by anything else) even more impossible?

To put it another way, why doesn’t the shift from class to faction imply, instead of a shift

from a mixed to an unmixed polity, a shift to an ever-more-mixed polity? Instead of

supporting majority rule, why wouldn’t we need to support an ever-more-anti-

majoritarian “multicameralism” giving separate representation to each sector or faction

within society? The Federalists were well aware of at least one line of this reasoning, as

as equivalent to any other member. U.S. CONST. art. 1, § 2, cl. 1 (“[T]he Electors [of the House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”). See also supra note 14 (noting federal constitution’s absence of restrictions on suffrage). The Federalists made one important exception to this general rule of individual commensurability: Madison defended the Three-Fifths Clause in large part on the basis of an argument (sounding in mixed-government theory) that property (i.e., slaves) demanded representation as well as persons. See THE FEDERALIST NO. 54, at 369-70 (James Madison). (Notice that the incommensurability which required justification for Madison was not that between free citizens and slaves, as that was taken for granted, but between individuals in free states and individuals in slave states, as the latter got representation disproportionate to their number of free persons.) Given the centrality of “unmixed” representation to the Federalist project, this defense seems particularly “strained,” as Madison himself said. Id. at 371. 154 THE FEDERALIST NO. 58, at 397 (James Madison); see also id. NO. 22, at 139 (Alexander Hamilton) (acknowledging the “fundamental maxim of republican government, which requires that the sense of the majority should prevail”).

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evidenced by Hamilton’s firm rejection of the proposal that a federal assembly be

enlarged so as to allow for the actual representation of each economic interest.155 To

some extent, the Federalists’ refusal to see the theory of faction as undermining majority

rule was a part of their general rejection of strict requirements of actual representation,

which they (accurately) saw as linked to radicals’ skepticism of all representation and

those radicals’ preference for formless democracy.156 But it would be too quick to

describe the Federalists’ refusal to believe that factionalism undermined representation as

a brute ideological preference for form, energy, and stability over formlessness,

incompetence, and turbulence. Unlike the traditional theory of class, the theory of faction

gave reason to believe that social inequality and differentiation could exist without

permanent political antagonisms that rendered integrated representation (such as majority

rule) impossible.

The first reason to think that social factionalism was compatible with a vision of a

politically integrated “people” was that, unlike classes under the traditional view, factions

were in constant flux. Whereas the old social orders were seen as relatively frozen

(hence the ability to constitutionalize their political reflection), the Madisonian factions

do not appear to remain so ossified. While there is no clear statement in the Federalist

that factions experience rapid “turnover”—that is, rapid fluctuations in membership, size, and political power—there are good reasons to think that such fluidity was inherent in factions as the Federalists understood them. Madison consistently associated with factionalism the “turbulence” and instability that he saw as inflicting American politics.

No doubt some of the “impulse” and “unsteadiness” of government in a world of factions

155 Id. NO. 35, at 218-22 (Alexander Hamilton). 156 See supra Sections II.B-C (discussing radical skepticism of formal representation and the Federalist response).

52 James Lindley Wilson Draft, September 2009 stemmed from what the Federalists saw as the failures of relatively formless democracy and poorly constructed assemblies, and would have persisted in such an institutional context almost no matter the underlying substantive interests involved.157 But political turbulence also seems to arise from the turbulence of the factions themselves: “[T]he superior force of an interested and overbearing majority” is not depicted as unjustly entrenching a stable and exploitative ruling coalition, but as contributing “instability” and

“confusion.”158 This is presumably not only because of the “passion” and capriciousness of any given majority,159 but also because the coalition (that is, the faction or alliance of factions) constituting the majority is constantly changing.160 The Federalist theory of faction was thus accompanied by an awareness of some social mobility.161 The result was that factional society tended to promote turbulence and “fluctuating policy” rather than stasis and permanent lines of division.162 In contrast to the classed society, individuals and groups in a world of differentiated faction were thus identical in their

157 THE FEDERALIST NO. 10, at 57 (James Madison). On the problem of turbulence and the Federalist response through the construction of a theory of disciplined assembly, see supra Section II.C. Of course, it is probably impossible to know (and probably irrelevant for the Federalists’ purposes and our own) exactly how much responsibility for political “turbulence” we can apportion to institutional forms and how much to shifts in the substance of social interests. The important point is that differentiated factionalism itself contributes in some degree to the instability of majorities, thus decreasing the risk of abusive majority entrenchment even as disciplining forms otherwise tamp down political turbulence. 158 THE FEDERALIST NO. 10, at 57, 56 (James Madison). 159 Id. at 57. 160 Further evidence for this implicit connection between factionalism and turbulence occurs elsewhere in the Federalist. Madison argues that democracies’ propensity to become “spectacles of turbulence and contention” is linked to their susceptibility to capture by (presumably shifting) majority factions. Id; see also id. NO. 63, at 425 (James Madison) (noting the democratic tendency for wild swings in policy, such as “decreeing to the same citizens, the hemlock on one day, and statues on the next”). Hamilton twice declares the House of Representatives too prone to “fluctuating” to be entrusted with the certain powers. Id. NO. 75, at 507 (Alexander Hamilton) (treaty power); id. NO. 77, at 519 (Alexander Hamilton) (appointments power). This fluctuation of the majoritarian house would not be anticipated if factions and alliances of interest were stable. Finally, the supposed difficulty of “combination” in the differentiated national republic, as discussed infra in the next paragraph of text, suggests that large factions or alliances of interests would not be able to keep themselves consistently in political line. 161 Cf. WOOD, supra note 8, at 478-83 (discussing contemporary awareness of social mobility after the Revolution). 162 THE FEDERALIST NO. 44, at 301 (James Madison).

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propensity to be both in and out of prevailing majorities within relatively short timeframes.

The Federalists buttress the idea that majorities could represent “society” as a

whole rather than a fixed class or stable alliance of factions by suggesting that in a highly differentiated society such alliances will tend to face insuperable problems of

“combination.” Madison argued that:

[As] you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.163

Thus even if we were to assume an absence of mobility and a relatively stable

constellation of underlying social interests, the extent of differentiation itself would make

it difficult to translate that social stability into political stasis, entrenchment, and the

accompanying threats to truly representative government. Anticipating what today is a

truism of public choice theory, the Federalists suggested that political alliances made up

of many small members are hard to keep together even if the members themselves are

relatively unchanging. This inability of factions to create a frozen majority alliance

opened up space, in Bruce Ackerman’s terms, for the Federalists’ government to

“transcend faction rather than mimic it.”164 As Madison put it, the hope was that “a

coalition of a majority of the whole society could seldom take place on any other

principles than those of justice and the general good.”165 The difficulty of factional

163 Id. NO. 10, at 64 (James Madison); see also id. at 63 (discussing decreased risk of “factious combinations” in large, diverse society); id. at 61 (same). 164 1 ACKERMAN, supra note 6, at 190. 165 THE FEDERALIST NO. 51, at 353 (James Madison).

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“combination” thus made it conceivable that majority rule could genuinely represent “the people” understood as the entire polity.

The Federalist revision of social differentiation as a matter of faction rather than

class thus enabled the political integration of “the people.” Federalist thinking allowed

one to see society as something close enough to a collection of individuals that the principle of majority rule measured across all individual citizens appeared not only just

but ideal.166 The Federalists thus swept aside objections to majority rule as incurably

partisan that had persisted since the time of Aristotle. But this did not lead them to view

majority rule with complete sanguinity. On the contrary, as we have seen, Madison’s first Federalist essay attributes American political troubles to “interested and over-

bearing majorit[ies],” and declares that “[t]o secure the public good, and private rights,

against the danger of such a [majority] faction, and at the same time to preserve the spirit

and the form of popular government, is then the great object to which our enquiries are

directed.”167 The problem of majority class had thus given way to the problem of

majority faction. The Federalist re-vision of society had made the latter problem

tractable even under majority rule in a way that the former problem was not, but the

problem nevertheless persisted. Indeed, the Federalists retained something of the

classical concern that majority rule often amounted to the rule of force and involved an

166 It may be a bit of an exaggeration to describe then-prevailing practices as reflecting majority rule across “all individual citizens,” given restrictions on suffrage, but many of these restrictions (such as those on women and children citizens) were justified with reference to various theories of virtual representation by adult male voters. See, e.g., Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family. 115 HARV. L. REV. 947, 981 (2002) (describing the “centuries-old” idea rejecting women’s suffrage on the basis of “the argument from virtual representation: women did not need the vote because they were already represented in the government by male heads of household”). Accordingly, a majority of adult male voters would indeed be seen to represent a majority of all individual citizens. The relevant development was that cross-class and cross-faction representation became to be seen as appropriate just as cross-sex and cross-age representation traditionally had been. 167 THE FEDERALIST NO. 10, at 57, 61 (James Madison).

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implicit threat of violence. Madison referred to majority factions as exerting rule through

“superior force,”168 and he rhetorically equated “the most numerous party” not exclusively with the common good but also with “the most powerful faction.”169 The

Federalists were also aware of the risk that majoritarian violence would explode

constitutional forms, particularly where these forms rested on mass disenfranchisement.

While Hamilton rather happily cited the prospect of democratic revolution as a security against disenfranchisement of the poor by the federal government,170 Madison, in a much

darker passage justifying the Guarantee Clause, emphasized that limited

disenfranchisement and mass enslavement gave rise to a real threat of mobbish revolt, at least at the state level. In a passage with very close echoes of Aristotle, Madison cautioned:

Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen in fine that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the Constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.171

168 Id. at 57. Cf. ARISTOTLE, THE POLITICS 100, *1281a23 (Carnes Lord, trans., Univ. of Chicago Press 1984) (equating lawless democracy with rule of a tyrant : “he is superior and uses force, like the multitude with respect to the wealthy”). 169 THE FEDERALIST NO. 10, at 60 (James Madison). 170 Id. NO. 60, at 404 (Alexander Hamilton) (“The improbability of the attempt [at disenfranchisement of the poor] may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people.”). Cf. ARISTOTLE, supra note 168, at 112, *1286b17-21 (noting that given the increased size of cities, and thus the military might of the multitudes, “it is perhaps no longer easy for any regime to arise other than a democracy”). 171 THE FEDERALIST NO. 43, at 294 (James Madison). Cf. ARISTOTLE, supra note 168, at 219, *1332b29-32 (noting the difficulty of wide disenfranchisement, since “the ruled citizens will have with them all those serfs in the countryside who want to subvert [the city], and it is impossible that those in the governing body will be numerous enough to be superior to all of these”).

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These passages show that, for all the virtues the Federalists saw in majority rule, they

never believed that political majorities (within or without the constitutional order) by

necessity possessed legitimate representational claims. The Federalists thus saw the need

to domesticate majorities even as they gave them free rein.172

None of this is (or was) meant to be esoteric. On the contrary, Madison laid out

with great clarity the relationship between social structure, majority faction, and political

form in one of his most well-known Federalist essays, No. 51. The relevant passage is

worth quoting at great length for its acute synthesis of the relevant themes:

It is of great importance to a republic . . . to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of the whole, very improbable, if not impracticable. . . . The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority.173

Madison rejects the mixed-government approach of recognizing an order “independent of

. . . society” in favor of an unmixed solution wherein all political power is internal to

society. But the unmixed approach will only work if society is sufficiently differentiated

172 Another example highlights the connection between the Federalists’ concern with majority force and their constitutional project of constructing more salutary (and more pacific) majorities. In arguing against retaining the “principle of legislation for States,” that is, the rule that the federal government could only pass laws directed at states rather than at individuals, Hamilton suggested that various centrifugal forces within the confederation would “open a wide field for the exercise of factious views, of partiality and oppression, in the majority that happened to prevail in the national council.” THE FEDERALIST NO. 16, at 99, 101 (Alexander Hamilton). As explained in Section II.C, supra, and in the remainder of this Section, infra, the Federalists believed that the strengthening of the federal government would prevent exactly this kind of majoritarian oppression (and resulting violence) from developing, even as national majorities were otherwise empowered. 173 THE FEDERALIST NO. 51, at 351 (James Madison).

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to render “unjust combination” difficult. This is the problem for the Constitution, and its

vision of the “federal republic of the United States” to solve: how to keep political power

entirely within the society or “the people” without sacrificing the smaller parts of society

to the larger. Majorities needed to be at once empowered and contained.

We can now see the connection between the Federalist vision of social substance

and their insistence on disciplined constitutional form. The idea of the classless society

of commensurable individuals had radical democratic potential, but the Federalists

wanted to pull back from what they saw as the anarchic abyss of turbulently careering

majorities and formless populism . They aimed to deploy disciplining constitutional form

within that classless society in such a way as to respect majority rule and to quell

turbulence without guaranteeing the political entrenchment of any fixed set of interests.

The forms familiar to us from the United States Constitution—the national republic, the principles of federalism and the separation of powers, the details of the federal

assemblies—were thus designed not only to make it difficult, through checks and

balances, for majorities to perpetrate tyranny, but also to produce systemic pressures

encouraging the development of salubrious rather than factious majorities. The

Federalists could thus portray their particular chosen majority rule as relatively

egalitarian, fair, and deliberative, rather than partial, mobbish, and turbulent. At the same

time, the Federalists could articulate how the natural-aristocratic elements of their forms

were compatible with prevailing democratic sentiments: once society was understood as

classless, rule “by the people” no longer required the actual participation in government

by the common or those representing uniquely “commoner” interests.174 There was one

174 This discussion should allow us to better understand Gordon Wood’s claim that, in using democratic rhetoric, the Federalists “appropriated and exploited the language that more rightfully belonged to their

58 James Lindley Wilson Draft, September 2009 particular social group that the Federalists were happy to explicitly favor: as Hamilton put it, “the learned professions . . . truly form no distinct interest in society; and according to their situation and talents will be indiscriminately the objects of the confidence and choice of each other and of other parts of the community.”175 With a telling mix of meritocratic elitism and republican virtue, the Constitution could be relied on to promote the political integration of the many parts of the polity through the rule of the best men.

IV. Conclusion

What are we today to make of the Federalists’ view of majority rule? Legally speaking, what, if anything, does it imply about American constitutional democracy opponents.” WOOD, supra note 8, at 562. Bruce Ackerman criticizes Wood for what Ackerman sees as Wood’s “appeal to false consciousness” to explain the widespread popular support the Federalists managed to command for their constitutional proposal. 1 ACKERMAN, supra note 6, at 220. I agree that the “rightfully belonged” language is unfortunate, suggesting as it does that the concept of democracy is so narrow as to exclude the Federalists’ disciplined majoritarianism, and that there is some “true” popular interest apart from what the people choose. As I have tried to show, the Federalists’ claim to be democrats was not merely an ideological maneuver, but grew out of coherent and plausible (if certainly contestible) theories of social structure and political representation. Nevertheless, I think Ackerman misses much of Wood’s point when he says that Wood’s “Beardian suspicion of the Federalists’ substantive agenda blinded him to their success in providing Americans models of political behavior and constitutional concepts.” Id. at 221. As I understand Wood, his concern is not that the Federalists disguised an oligarchic agenda in democratic clothing in the sense of favoring the policies of the rich over those of the poor. Wood, of course, was well aware of that the disintegration of mixed-government theory made the concepts of “the rich” and “the poor” as political entities unhelpful. (Thus Ackerman’s attribution to Wood of the idea that “history is best understood as a process in which one social class gains hegemony over another in a fixed sequence,” id. at 220, strikes the wrong note.) Wood’s complaint was rather that the Federalist vision of classless society enabled them, by eliminating political distinctions between natural aristocrats and the hoi polloi, to justify as entirely democratic the rule of elites whose connection to common people was often remote and indirect, both socially and politically. This cut off, for example, the one possibly beneficial element of mixed-government theory, the ostensibly guaranteed participation of the common and those close to the people in one branch of government. (Wood expresses explicit concern that the Federalists’ theory of representation allowed them to effectively equate the democratic credentials of the House, Senate, presidency, and judiciary, and indeed does so immediately before the passage Ackerman criticizes. WOOD, supra note 8, at 550-51, 561-62.) Ackerman may yet be right to prefer what Wood laments as the Federalist decoupling of “differing ideas of politics” from “differing social interests,” id. at 562, and indeed I consider myself in common cause with Ackerman in questioning the simple view (which I have associated with Alexander Bickel, see supra notes 1-6 and surrounding text, and which Wood seems close to endorsing) that we can classify different branches of government as self-evidently “democratic” (“majoritarian”) or “anti-democratic” (“counter-majoritarian”). (Notice that Wood, unlike Bickel, identifies this view with opponents of the Constitution.) Nevertheless, we should not adopt Ackerman’s preference without acknowledging what Wood identifies as a real cost: the systematic exclusion of ordinary people from political rule. To identify that elitism (which of course also has its benefits) is not to endorse a stunted Marxist view of politics. 175 THE FEDERALIST NO. 35, at 220 (Alexander Hamilton).

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today? It is difficult to answer that question, for two reasons. First, the question leads us

to complicated issues of how much we are bound by the Framer’s (or ratifiers’) political

theory. Should we see the Federalist theory of majority rule, for instance, as something

completely extraneous to the legal text they proposed, or as something that gives us

access to the proper meaning of that text? (Proponents of the first answer should

remember that Bickel’s idea that judicial review’s “counter-majoritarian” difficulty is a

difficulty at all is something of a political theory itself, which Bickel uses to inform the

meaning of the Constitution’s provisions regarding judges.) This is just one species of

the generally complex question of how much context one needs to isolate the meaning of

the constitutional text, and I do not mean to provide any answers here. The second

reason it is difficult to know what the Federalist theory of majority rule legally means for

us today is that the Federalists and their contemporaries, of course, were not the only

framers of our Constitution. Since 1787, the Constitution has seen many changes

relevant to majority rule, including not only the Bill of Rights, but the dramatic expansion

of suffrage, the introduction of the direct election of the Senate, the elimination of the

oligarchic poll tax, and of course the Equal Protection Clause, which has been interpreted

by courts and Congress in a variety of ways impinging on the construction and limitation

of American majorities. Articulating a coherent theory of majority rule out of all these

legal strands would be far from easy, though perhaps no more difficult than many other

lawyer’s tasks in making sense of centuries of constitutional tradition. That articulation must await another day. Nevertheless, we may still learn a few final lessons from the

Federalists, even if we should remain aware that their words were never meant to be the

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last, and that they fully expected American majorities to re-constitute themselves in

different ways as they faced different social realities .

A commitment to majority rule is a complicated thing. Even if we begin with a

high degree of consensus in favor of “democracy” over alternative political forms such as

oligarchy or mixed government, it is far from self-evident exactly what institutional

forms “majority rule” requires. As Akhil Amar has suggested, 176 it may require the

latent political possibility that a majority of citizens can always amend any constitution—

this is one possible interpretation of the basic Revolutionary principle, to which the

Federalists were committed, that the “people themselves” always retain the right to “alter

or abolish” their government. But even that relatively clear and bold majoritarianism

leaves us with the question of how to instantiate majority rule in our more quotidian

political existence. In the Constitution and in their public defense of it in the Federalist

Papers, the Federalists developed one elaborate institutional apparatus which had a

respectable claim, at least by contemporary standards, to observing majority rule. But

that apparatus and that defense emerged from a number of highly contentious political

choices about how best to construct majority rule and popular government more generally. Virtually all of these choices had significant consequences for the practice of

democracy, the substance of American politics, and the nature of majorities and of

majority rule. All of these choices thus had “majoritarian” and “counter-majoritarian,” or

“demotic” and “counter-demotic” elements. Of course, this is not to say that all branches

of government or all institutional systems are the same, morally or otherwise. Our

commitment to democracy and to reflective self-rule demands that we carefully isolate

the different political consequences of different constitutional forms. Exactly this kind of

176 See Amar, supra note 60.

61 James Lindley Wilson Draft, September 2009 criticism has been going on since the American Founding (and before) and it is this tradition to which Alexander Bickel, for instance, contributed his fine work. But it is worth constantly protecting ourselves against the temptation to hypostasize the

“majoritarian” or “counter-majoritarian” elements of our constitutional order into separate and clearly distinct branches. We should take seriously the Federalists’ rejection of the old mixed-government trope that each branch of government has some easily identifiable social basis or political virtue which it reflects. Instead, each branch is both separated from and represents “the people,” or at least pretends to. This is not to encourage complacency about any branch (or the Constitution itself), but to remind us that each branch is complicated, differentiated, and perhaps even a bit unruly in its resistance to analysis—much like the people themselves.

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How in the Federalist Papers James Madison Argued Against Democracy in Favor of a Republic

Table of Contents: Select a Link to be Taken to That Section

Executive Summary

  • The term democracy describes the US political system while ignoring what the founding fathers wrote about democracy.

the federalist papers on democracy

Introduction

The vast majority of the globe, including Americans, believes the US is a democracy. In this article, we will go through the Federalist Papers and cover every mention of the term democracy.

The New York Times Article on the Le Pen Victory

Before getting into the Federalist Papers, it is instructive to analyze a quote from the New York Times to see how the term democracy is constantly slathered like butter on bread to describe the US (and other political systems).

The following few quotes from an article in the billionaire controlled New York Times explain the different meanings of the term democracy or democratic when used by billionaires or those employed to write by billionaires. This article is about the French election Between Macron and Le Pen.

A Fair Election Shows a Fissure in Western Democracy?

WASHINGTON — U.S. officials are anxiously watching the French presidential election, aware that the outcome of the vote on Sunday could scramble President Biden’s relations with Europe and reveal dangerous fissures in Western democracy. – New York Times

This is a misuse of the term democracy, and a republic is a correct word for a system where representatives are voted for. However, the elites constantly use the term “democracy” to show that political systems are more controlled by the public than they are.

Secondly, the US is not a democracy; it is also categorized as a republic, and the term democracy does not appear anywhere in the constitution. Elites use enormous amounts of money to influence elections with high degrees of success. Therefore, the US questionably meets the standards of being a republic. A proper republican government would remove money from the equation and allow unadulterated voting for representatives.

The Term Democracy in The Federalist Papers

The question of “is the US a democracy” or “is the US a republic” is answered in the Federalist Papers. These provide the background thinking to what eventually became the US Constitution and Bill of Rights.

One of the Federalist Papers chapters where democracy is covered is the No 10, No 14, and No 48. All of these chapters were written by James Madison. Overall, the Federalist Papers were written by three named writers — Alexander Hamilton, James Madison, and John Jay.

Federalist No. 10 – The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection (continued) Written by James Madison Daily Advertiser, November 22, 1787

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

This is Madison declaring that democracy supporters are guilty of utopianism when democracy and are not familiar with how democracy was practiced in the Greek states.

 How a Republic is Better than a Democracy

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, 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. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.

Here Madison states that representatives will be more consonant with the public good that if stated by the people.

The Confusion of the Multitude

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

This is a clear preference shown for a republic over a democracy.

Federalist No. 14 – Objections to the Proposed Constitution From Extent of Territory Answered Written by James Madison New York Packet, November 30, 1787

Democracy is discussed again in the Federalist book #14.

WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region. To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.

Madison’s point is that democracies do not scale and are limited in geography. Naturally, this is before the development of computer technologies. However, there is a scaling issue with democracy. In Athens, the number of voters was roughly 30,000. And the other Greek states that instituted democracy were smaller than this.

This small size of the voting public tends to be left out of discussions of democracy.

The Concentration of the Power in Government

The power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union.

This is a rambling way of saying that the US was significant even at that time. And that distance matters and reduces the applicability of democracy. The following analysis reinforces his interpretation.

Madison’s reading convinced him that direct democracies—such as the assembly in Athens, where 6,000 citizens were required for a quorum—unleashed populist passions that overcame the cool, deliberative reason prized above all by Enlightenment thinkers. “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason,” he argued in The Federalist Papers, the essays he wrote (along with Alexander Hamilton and John Jay) to build support for the ratification of the Constitution. According to classical theory, republics could exist only in relatively small territories, where citizens knew one another personally and could assemble face-to-face. Plato would have capped the number of citizens capable of self-government at 5,040. Madison, however, thought Plato’s small-republic thesis was wrong. He believed that the ease of communication in small republics was precisely what had allowed hastily formed majorities to oppress minorities. – The Atlantic

Federalist No. 48 – These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other Written by James Madison New York Packet, Friday, February 1, 1788

The final book that discusses democracy is the 48 book of the Federalist Papers.

In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter.

This is the argument that the people lack the regular deliberation that representatives possess.

Madison’s Argument of Intrepid Confidence of Representatives

But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

It isn’t easy to understand what Madison is saying here. It seems very flowery in that the representatives somehow have intrepid confidence.

But, it is not my objective to analyze Madison’s arguments for republics over democracies, only to represent what he proposed as a desirable system.

Other Editorials on Madison’s Arguments

In the Federalist Papers, I had access to an appendix that included some analysis of Madison’s arguments.

5. According to the Federalist Papers, what is wrong with direct democracy? In a direct democracy, citizens gather together in a public place and vote on public policy. They do not elect representatives to decide matters on their behalf, but make all political decisions themselves as one collective political entity. As Madison argues in paper 10, direct democracies are often swayed by temporary passions and frenzies. This leads to instability as the democratic society rapidly shifts policy one way or the other when a new idea becomes popular. It also leads to a violation of the rights of minorities since there is nothing to check the power of the majority. If even just 50.001% of the country, for example, supports going to war, the nation goes to war no matter how disastrous that decision might be. 6. According to the Federalist papers, what is the difference between a democracy and a republic? In a democracy, all members of society gather together and administer the government in person. In a republic, citizens elect representatives to decide public matters on their behalf. According to Madison in paper 10, republican government is far superior to democracy for two reasons. First, by delegating authority to representatives, republican government ensures that “the public views” are reined and enlarged. It was thought that the elected representatives would be wiser and more virtuous than the great body of citizens and thus capable of making better decisions. Second, a republic allows for the government to extend over a large swath of territory. In a democracy, all citizens need to gather in one place to make decisions. It would clearly be impossible for all the citizens of the US to meet in Washington, D.C., and vote on public policy. However, it is very practical for a few representatives from each state to meet and make decisions. Having a larger republic means that the representatives will be chosen from a larger number of people, thus increasing the likelihood that the elected representatives will be good, virtuous people. Also, having many representatives in government helps guard against, as Madison writes, “the cabals of a few.”

The Founders Used Rome, Not Athens (from the 6th to 4th century BC) As a Model

The following components of the Roman government model should be familiar to any American.

The Founding Fathers preferred to fashion the United States on the Roman model, which eschewed monarchy but allowed for indirect popular influence through elected representatives. The Roman model of government had three branches: The legislative branch was made up of two bodies. The first was the Senate which was aristocratic and made up of former leaders of Rome. The second was the Assembly made up of the populous which voted by tribe. These are similar to the present US Senate and the House of Representatives. The executive branch consisted of two Consuls who shared power and acted as heads of state in a manner similar to current presidents. Lastly, a judicial branch existed made up of eight judges that the US Supreme Court was modeled on. – Itching Ear

This fact is also found in Article Four Section Four of the US Constitution.

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. – US Constitution

If the founders wanted a democracy, there would have been no Senate or House of Representatives. And there are more similarities.

When the US Constitution was finally drafted in 1787, it was non-democratic according to the Greek definition and based on the Roman Republic model. It had checks and balances, limited representation by the people, and gave government various freedoms while restricting others. – Itching Ear

the federalist papers on democracy

The constant growth in voting rights can be seen at the following link .

Obverse that the founders only allowed and only expected a small fraction of the population to vote. This is explained in the following quotation.

First, as we’ve noted before, the right to vote has been among the most ill-defined of all the rights enumerated in the United States Constitution. According to Jill Lepore, perhaps 6% of the entire American population was eligible to vote in the first presidential election. Excluded were those younger than 21, all women, all slaves and other blacks and a large number of white men who didn’t have sufficient property, although Donald Ratcliff argues that many more white men were able to vote than is often asserted. Nevertheless, the franchise was quite limited, and it took the better part of two centuries to expand it to all adults over the age of 18. – Itching Ear

In the first US presidential election, it is estimated that 1% of the population cast a vote. Secondly, no citizen cast votes for the Senate until that was changed in 1913, as is explained in the following quotation.

Senators were not directly elected by the people until the adoption of the Seventeenth Amendment in 1913. – Wikipedia

The Reality of the Republic Created by the Founding Fathers

The founding fathers not only designed a republic and not a democracy, but they significantly restricted voting even within the republican context. That is, the founders only want a small fraction of the citizens of the US to be able to vote for representatives. This makes statements about the founders creating a democracy even less accurate, as only a small fraction of US citizens were supposed to be able to vote. This is curious when considering “voter disenfranchisement,” as the founders wanted most US citizens to be disenfranchised. Specific restrictions were put in place to restrict or disenfranchise the vast majority of the population. The founders did not wish blacks, women, or men to vote below a sufficient property threshold. Much is made of the “racist” and “sexist” restrictions on voting, but what is left out is that the founders did not want the vast majority of white men to vote either. Focusing on non-whites and women, not voting, makes it sound like the system was entirely set up for white men when it also was not. This is yet another example of projecting onto history rather than reading history.

Pretending That All White Men Had the Vote From The Beginning

Observe that when Andrew Jackson pushed for universal white male suffrage, it is barely known today, and in fact, I had difficulty finding much written about this. Even the details for when what percentage of white men got the right to vote are a bit hazy, as you can read in the following link . This is partly because the majority of the population wants to believe that all white men obtained suffrage at the beginning of the US republic. This fits with the false understanding but the desired knowledge that the US was a very inclusive political system from its origin and that only racism and sexism prevented the right of every citizen to vote. What has occurred is that desired history has come to replace actual history. We don’t have to adjust ourselves to history in the modern era, but we can write the history that we want to be true.

Anyone can debate whether the founders’ system was unfair or otherwise undesirable. However, there is no disputing what system they set up. People with a low consideration for accuracy and who want the founders to have created a system they desire have projected their views onto the founders rather than reading the documents they left behind. Reading takes time, but projection is much faster, saves so much effort, and is so satisfying.

This video does an excellent job of explaining why the US is a republic and that this was the agreed-upon design of the founders. 

National Geographic on Why The US is a Democracy

No matter what the Federalist Papers say, most media still say the US was set up as a democracy. An excellent example of this is found in the quotes from an article in National Geographic.

The United States has a complex government system. One important tenet of this system is democracy, in which the ultimate power rests with the people. In the case of the United States, that power is exercised indirectly, through elected representatives. Although the U.S. has been a strong proponent of democracy, it did not invent democracy.

Yes, this is called a republic. To co-opt the term democracy, the elites needed to change the definition of Greek democracy roughly 2500 years after the term had been agreed to. Greek democracy was no longer democracy but was “direct democracy.” Another trick has been to call republics “representative democracies.” That is a democracy, where votes are cast for representatives and not the actual issue, a republic.

The last part of the paragraph proposes the US has been a strong proponent of something it never has and then states that it seeks to educate the reader by stating something the US is not is something it strongly proposes.

This was a momentous task, and for guidance they looked to what they deemed the best philosophies and examples of government throughout world history. Along with the Roman model, the democratic model of ancient Greece’s system of self-government greatly influenced how the founding fathers set out to construct the new United States government.

The Roman model is a republic. It is a bit curious how NG mentions that the US drew inspiration from the Roman model but then leaves out Rome’s political design.

The contradictions in the Federalist Papers against the democratic system have already been discussed in this article, something NG keeps from its readers.

Another important ancient Greek concept that influenced the formation of the United States government was the written constitution.

All governments, particularly modern governments, have a constitution, and Saudi Arabia has a constitution, which you can read here .

Here is the intro.

Article 1 The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital. Article 2 The state’s public holidays are Id al-Fitr and Id al-Adha. Its calendar is the Hegira calendar. Article 3 The state’s flag shall be as follows: (a) It shall be green. (b) Its width shall be equal to two-thirds of it’s length. (c) The words “There is but one God and Mohammed is His Prophet” shall be inscribed in the center with a drawn sword under it. The statute shall define the rules pertaining to it. Article 4 The state’s emblem shall consist of two crossed swords with a palm tree in the upper space between them. The statute shall define the state’s anthem and its medals. Chapter 2 [Monarchy] Article 5 (a) The system of government in the Kingdom of Saudi Arabia is that of a monarchy. (b) Rule passes to the sons of the founding King, Abd al-Aziz Bin Abd al-Rahman al-Faysal Al Sa’ud, and to their children’s children. The most upright among them is to receive allegiance in accordance with the principles of the Holy Koran and the Tradition of the Venerable Prophet.

NG seems to be proposing that having a written constitution makes a country a democracy, but Saudi Arabia has a written constitution but is an Absolute Monarchy.

Did Saudi Arabia also draw inspiration from Athens?

Aristotle, or possibly one of his students, compiled and recorded The Constitution of the Athenians and the laws of many other Greek city-states. Having a written constitution creates a common standard as to how people should behave and what rules they must follow. It also establishes clear processes by which people who break the law are judged and those who are harmed as a result can be compensated or given justice.

Interesting. Is National Geographic also aware that Aristotle did not think democracy was the best form of government, and that he preferred monarchy over democracy?

For Aristotle, democracy is not the best form of government. As is also true of oligarchy and monarchy, rule in a democracy is for and by the people named in the government type. In a democracy, rule is by and for the needy. In contrast, rule of law or aristocracy (literally, power [rule] of the best) or even monarchy, where the ruler has the interest of his country at heart, are better types of government. Government, Aristotle says, should be by those people with enough time on their hands to pursue virtue. This is a far cry from the current U.S. drive towards campaign financing laws designed to make the political life available even to those without well-endowed fathers. It is also very different from the modern career politician who derives his wealth at the expense of the citizenry. Aristotle thinks rulers should be propertied and leisured, so, without other worries, they can invest their time in producing virtue. Laborers are too busy. – Thought Co.

No, National Geographic decided to leave that out. As in many cases, while it is prestigious to mention Aristotle’s name, it is less important to explain what Aristotle thought .

The quote from National Geographic continues.

Like The Constitution of the Athenians, the U.S. Constitution is a vital document. It lays out the government’s structure and how the checks and balances of power within it relate to one another. The U.S. Constitution acts as the supreme law of the country and establishes individual citizens’ rights, such as the right to free speech or the right to a trial by a jury of one’s peers. Today, the U.S. Constitution is still regularly referenced in law as the supreme law of the land and is enforced by the U.S. Supreme Court, the country’s highest court. – National Geographic

None of that, and the fact the US Constitution, like all constitutions, is a “vital document,” says anything about whether the US is a democracy.

It is straightforward to catch where this National Geographic author excludes essential information that they must be aware of to convince the reader of something false.

What is just as interesting is to read National Geographic’s explanation of the Roman political system.

The Roman Republic describes the period in which the city-state of Rome existed as a republican government, from 509 B.C. to 27 B.C. Rome’s republican government is one of the earliest examples of representative democracy in the world. – National Geographic

So was Rome a republic or a representative democracy? The answer is both because representative democracy is a modern term for a republic.

Promoters of the idea that all republics would be called representative democracies point to the fact that there are some referendums where there is direct voting on an issue. This is explained in the following quotation.

The constitution may also provide for some deliberative democracy (e.g., Royal Commissions) or direct popular measures (e.g., initiative, referendum, recall elections). However, these are not always binding and usually require some legislative action—legal power usually remains firmly with representatives. – Wikipedia

Anyone living in one of these republics…oh, excuse me, “representative democracies” should ask themselves the question — over what percentage of the total local, state, and national legislation do they vote on by referendum? Furthermore, even the Roman Republic, sorry Roman Representative Democracy, had some direct voting, as is explained in the following quotation.

The Roman Republic was the first known state in the western world to have a representative government, despite taking the form of a direct government in the Roman assemblies. The Roman model of governance would inspire many political thinkers over the centuries,[8] and today’s modern representative democracies imitate more the Roman than the Greek model, because it was a state in which supreme power was held by the people and their elected representatives, and which had an elected or nominated leader. – Wikipedia

Yes, the modern democracies imitate the Roman and the Greek model because they are republics and not democracies.

The Roman Republican system is well explained in this video. 

The term democracy is not used anywhere in the US Constitution and the Federalist Papers. The Federalist Papers, where one looks to see what the founders thought when they created these documents, show that they intended to set up a republic. Furthermore, the founders were well aware of democracies, their promise, and their reality and were far better educated on the history of democracy than the modern US public. The founders stated very clearly and on many occasions in the documents they left behind that they did not want a democratic form of government for the US.

Even if 100% of the adult age citizenry had been sufferage from the beginning of the country, this would still not have changed the political system of the US, as suffrage was to elect representatives, not to vote on referendums. Expanded suffrage within a republican form of government does not convert that political system into a democracy. Votes are cast in both democracies and republics, and the question is what is being voted for. However, the founders did not create a republic with broad based suffrage, they created a republic that dictated that only a small fraction of the society would be able to vote for representatives.

What is humorous about this is that a group of men created a system where perhaps 6% of the population had a right to vote for president, and 0% voted for members of the senate. They are often referred to as the “fathers of democracy.”

When Historical Reality is Just Not Good Enough

This is because this system does not comport with modern sensibilities, and therefore this history has been suppressed in favor of more appealing historying. The general public cannot fathom or accept how little the founding fathers wanted voting participation from the public. Therefore this issue has also been cast as only a matter of sexism and racism, with the fact that the majority of white men also did not have suffrage erased from the public’s understanding. The white male suffrage obtained in the 1920s to the 1850s (led by Andrew Jackson) was eliminated from the collective experience and not celebrated as female suffrage or black suffrage.

This conversion of reality both allows us to say that countries that have republican forms of government are actually democracies, by changing the definitions of words. And that this also allows us to claim that the US founding fathers always intended to create a democracy, even though they said and wrote repeatedly that they created a republic.

Light

The Telegraph

The Benjamin Franklin House Literary Prize 2023 - the interplay between force and opinion in government

“government must depend for its efficiency either on force or opinion.” from ‘the colonist’s advocate’, vii. (feb 1, 1770)  .

W e have become accustomed, today, to seeing our own societies as the pinnacle of human achievement because we have reached a settlement which once appeared impossible: a society governed not by force but by opinion. The promise of a liberal democracy is that the weight of the majority ought to be greater than that of the strong and that persuasion should reign where coercion once governed human affairs.

When Benjamin Franklin observed, in 1770, that all governments must rest either upon force or opinion for their ‘efficiency’ (by which he, a man of the eighteenth century, meant what we now term efficacy), he was advancing what was not then a commonplace but instead a remarkable rejection of the existing order of political life. That force ruled in the world of politics was accepted by almost all of Franklin’s contemporaries. Prior to the eighteenth century, it had been almost universally held that public peace required force to keep the people “in awe”, as Thomas Hobbes put it, and the same sentiment remained widely accepted amongst Franklin’s peers.

It was his faith in the possibility of a government founded not upon force but upon opinion that led Franklin to stand amongst those who sought to establish a new nation founded on the ideal of self-government when the revolution of 1776 arrived, and it was the same conviction which guided his career as a revolutionary statesman and philosopher. Franklin was amongst those politicians, philosophers, and ordinary citizens who, at the end of the eighteenth century, engaged in a great experiment to discover whether it was possible for mankind to “establish good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force”, as Alexander Hamilton put it at the beginning of the first of the Federalist Papers.

The result was the birth of modern liberal democracy and the end of a world in which power rested on violence alone. For his part in inaugurating this epochal reordering of human relations, Franklin earned the epithet of ‘the Solon of North America’ from his contemporaries, who ranked him alongside the mythical Athenian lawgiver in his contribution to the cause of human freedom.

Yet in a less utopian age, we might have reason to doubt this strict dichotomy between those regimes founded on force and those founded on opinion. Unlike eighteenth-century writers like Franklin, we have come to be suspicious of democracy and attuned to the potential for majority rule to degenerate into tyranny or for popular self-rule to beget the abuse of the rights of minorities.

As the French writer Alexis de Tocqueville (who coined the term ‘the tyranny of the majority’) argued in his famous book Democracy in America , although democracy might liberate us from the oppression of kings and aristocrats, it can just as often place us under the yoke of our fellow citizens. Far from passing from the government of force to a free government based on opinion, we pass instead from one form of rule by force to another, from that of a minority to that of the majority.

Indeed, if we were to take a very pessimistic view of democratic life, we might argue that it is not founded on free debate and a rational process of deliberation, but upon the implicit force which the majority possesses to force the minority to follow its dictates. On this view, the legitimacy of the majority at the ballot box comprises nothing more than mutual acceptance that, were it to come to it, the numerically superior majority would prevail in a contest of force.

Even if we do not hold so dark a view of democracy, it is still hard to avoid the sense that so much of modern political and social life is ruled by the compulsion of mobs rather than the reasonable exchange of opinions. All too often public discourse degenerates into a contest over who can rally more – and more vitriolic – support, and dispassionate debate gives way to tribal conflict.

What is often called ‘cancel culture’ today can be viewed differently as an inevitable fact of political life in a free country and not a product of a rising illiberalism. Where we are free to hold whatever opinions we wish, we tend to quickly form tribal attachments and behave with hostility towards those who disagree with us. Having initially agreed with our allies on some particular issue, our impulse to conform flattens all dissension until an initially pluralistic political coalition comes to reject any deviation from a broader programme of shared aims and all dissent is quashed by the mob.

When tempered, our impulse to form factions leads to benign political competition and a diversity of views, but when unrestrained in this manner it can lead to bitter partisanship and, paradoxically, the elimination of the freedom of thought and opinion of which it is the product. This is a dynamic which was as characteristic of the tumultuous (and far more vicious) politics of Britain and her American colonies in the eighteenth century as it is of the age of the Twitter mob.

One of Franklin’s contemporaries, Jean-Jacques Rousseau, though often unfairly tarred as a defender of this mob democracy, was in fact one of the most perceptive critics of this dynamic of democratic life. As he wrote in The Social Contract , “If, when the people, being furnished with adequate information, held its deliberations, the citizens had no communication with one another, the grand total of the small differences would always give the general will”. 

What Rousseau was arguing was not literally that citizens be cut off from one another, but that an ideal democracy should seek to promote independence of thought in its citizens. What Rousseau recognized, and we have forgotten, was that where we allow the opinions of others to dictate our political engagements, democratic self-rule is degraded. The government of opinion thus becomes another species of government by force, with the only difference being that it is the fear of our fellow citizens and not of a tyrant which motivates obeisance.

But the dream of a government constituted on the basis of the free exchange of opinions should not be discarded entirely on this count. Rather, understanding this dynamic and the decay to which democratic government is prone demands that we work harder to achieve the noble dream of a politics founded not on violence and coercion but debate and persuasion. It requires us all to reject both immoderate and intemperate attacks, even upon those we regard as heinous, in favour of a stringent commitment to open debate and the possibility of our defeat in a fair and equal public square.

At the same time, it requires us to commit to approaching politics with an independence of mind which prevents us from simply following the herd and aping those who we admire or with whom we usually agree. We must stand up for what we believe in even when it is unfashionable, champion causes which might seem unpopular, risk being placed in front of the mob’s wrath and defend those who do, even when we disagree with them.

It is only by doing so that we can prevent the rule of public opinion from degenerating into the rule of fashion and conformity, in which deference to monarchs and despots is replaced by deference to popularity. If we do not, we risk sacrificing government based on opinion for government based solely on the opinion of the majority, whose tendency is towards a transformation into rule by the force of the greatest number and the persecution of minorities of all kinds.

When Benjamin Franklin wrote, just over two and a half centuries ago, that “Government must depend for its Efficiency either on Force or Opinion” he offered a noble prediction that the liberal form of government then emerging both in the United Kingdom and her American colonies represented a viable alternative to the rule of force. The centuries which followed have shown that Franklin’s optimism must be tempered with a recognition that democracies may descend into rancour and collapse into combat between factions, and that the government of opinion can descend into the domination of the majority.

This does not mean, as is often supposed, the collapse of democracy into a dictatorship backed by the majority, but is found every day in the stifling of genuine debate by the overwhelming pressure for the individual to conform in all aspects of life both through social sanction and, at times, through bullying, coercion, and force. Yet we should not rule out the possibility of a government genuinely based in opinion.

Instead, we should aim to model the kind of independent and steadfast political conduct which, as Shakespeare put it, shows our love for the people without relishing their loud applause and Aves vehement. Only then might we hope to realize Franklin’s dream.

Benjamin Franklin House Literary Prize

The 2023 winning entry

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IMAGES

  1. James madison federalist 10 summary. What is the main message of fed 10

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  2. Federalist Essay No. 10

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  3. THE FEDERALIST THE WORKS OF ALEXANDER HAMILTON; Comprising His Most

    the federalist papers on democracy

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  5. The Federalist Papers by Alexander Hamilton

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  6. Federalist Papers: Analysis of #10, 51, and 78 (Differentiated)

    the federalist papers on democracy

VIDEO

  1. The Federalist Papers No. 61

  2. The Federalist Papers Appendix 4

  3. The Federalist Papers No. 58

  4. The Federalist Papers Appendix 2

  5. The federalist papers

  6. Who Wrote the Federalist Papers video

COMMENTS

  1. The Federalist Papers

    The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States.

  2. Full Text of The Federalist Papers

    Full Text of The Federalist Papers - Federalist Papers: Primary ...

  3. Federalist Papers: Summary, Authors & Impact

    The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a...

  4. Federalist Papers: Primary Documents in American History

    The Federalist, commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788.The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time. The Federalist Papers were written and published to urge New Yorkers to ratify the proposed ...

  5. The Federalist Papers (article)

    The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788. The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.

  6. Federalist No. 10

    Federalist No. 10 is an essay written by James Madison as the tenth of The Federalist Papers, a series of essays initiated by Alexander Hamilton arguing for the ratification of the United States Constitution. It was first published in The Daily Advertiser (New York) on November 22, 1787, under the name "Publius".

  7. Federalist papers

    Federalist papers, series of 85 essays on the proposed new Constitution of the United States and on the nature of republican government, published between 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay in an effort to persuade New York state voters to support ratification.

  8. Federalist Papers: Primary Documents in American History

    The Federalist Papers were a series of essays written by Alexander Hamilton, James Madison, and John Jay under the pen name "Publius." ... In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious ...

  9. 3.5 Primary Source: Federalist No. 10 and Federalist No. 55

    The Federalist Papers have since taken on immense significance, as they have come to be seen as an important early exposition on the Constitution's meaning. In Federalist 10, Madison explores how the Constitution combats the problem of faction. Excerpt: A good government will counteract the dangers of faction.

  10. The Federalist Papers

    The Federalist Papers Alexander Hamilton, James Madison, John Jay Penguin, Apr 1, 2003 - History - 688 pages A DOCUMENT THAT SHAPED A NATION An authoritative analysis of the Constitution of the...

  11. 1.6: The Federalist Papers and Constitutional Government

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  12. The Avalon Project : The Federalist Papers : No. 14

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  13. Democracy

    In "Federalist 10," one of 85 essays by Madison, Alexander Hamilton, and John Jay known collectively as the Federalist papers, Madison defined a "pure democracy" as "a society consisting of a small number of citizens, who assemble and administer the government in person," and a republic as "a government in which the scheme of ...

  14. Yes, the Constitution Set Up a Democracy

    Madison made the distinction between a republic and a direct democracy exquisitely clear in " Federalist No. 14 ": "In a democracy, the people meet and exercise the government in person; in a...

  15. The Federalist Number 10, [22 November] 1787

    1. Douglass Adair showed chat in preparing this essay, especially that part containing the analysis of factions and the theory of the extended republic, JM creatively adapted the ideas of David Hume ("'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly, XX [1956-57], 343-60).

  16. Federalist 10: Democratic Republic vs. Pure Democracy

    The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal, edited by Thomas Greenleaf, 2) Independent Journal, edited by John McLean, 3) New York Advertiser, edited by Samuel and John Loudon, and 4) Daily Advertiser, edited by Francis Childs.

  17. 7.2 Madison on Democracy

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  18. The Federalist Number 14, [30 November] 1787

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  19. The Federalist Society Isn't Quite Sure About Democracy Anymore

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  20. How Hamilton Warned In The Federalist Papers Against Donald Trump

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  21. Majority Rule and the Federalist Papers: Democracy, Equality, and

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  22. Federalist Papers On Democracy

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  23. How in the Federalist Papers James Madison Argued Against Democracy in

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  24. Democracy vs a Republic Perfectly Explained For Dummies

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  25. The Benjamin Franklin House Literary Prize 2023

    The result was the birth of modern liberal democracy and the end of a world in which power rested on violence alone. For his part in inaugurating this epochal reordering of human relations ...