Facts About The Federalists Papers

Death doesn’t discriminate
Between the sinners and the saints
It takes and it takes and it takes
History obliterates
In every picture it paints
It paints me and all my mistakes
When Alexander aimed
At the sky
He may have been the first to die
But I’m the one who paid for it.
I survived, but I paid for it.
Now I’m the villain in your history
I was too young and blind to see
I should’ve known
I should’ve known
The world was wide enough for both Hamilton and me
The world was wide enough for both Hamilton and me
 —Aaron Burr. 12 July 1804

Federalist Papers Facts

Facts are the soil of truth. Principles bind them together, make them grow, but principles mean nothing without facts appending. Indeed, facts are what make principles grow. When Hamilton states in Federalist 9 that the principles of political science have grown, he insinuates that historical changes have been instrumental in the process. Indeed, the American novelty of government, a true republican system devoted to liberty and a government free of monarchy and arbitrary rule, could not have even been described until we had one, in 1787; no writer before the trio writing the Federalist Papers stated the principles by which our federation materialized, until the Federalist Papers, because they had no system in front of them to examine or describe. We open up some facts here, most of which look more like cans of worms than fertility itself, but as the worm turns so does the ground yield the more in fruit.

The first worm is what happened to honest and open conversations. The second digs into our manifold problems that seem to have escaped the garden of Eden for more troubled ground. The third looks into those parts of our Constitution which are not written into the Constitution but have constitutional effect, both stabilizing and destabilizing our government. The fourth worm eats away at our representative government through the regulatory and administrative state. The fifth lifts up the soil a bit with an examination of our rights as citizens. The last takes a glimpse at what is happening in education now that bodes well for the future of effective civic engagement. We like ending on a positive note; looks like growth.

You may wonder what these have to do with the Federalist Papers. If we consider the Papers at their own time, nothing. But relative to today, everything. In the prior section we found five principles that we claim reside within the Papers that are relevant to today. We further insisted that the Papers assume rule of law, majority rule, and popular sovereignty as foundation stones for any viable republican system. We also allowed them to open the door to three areas of political business today—our living constitution, our administrative state, and our vast system of rights. The last three of course are not within with explicit ambit of the Federalist Papers, but each may be partially explained by the Paper’s development of limited government, the necessity of fitting means to ends, and the all but certain force of history on our forms and practices of government as long as they remain constrained by republican and federal structures and separation of powers. We also argued that the Papers themselves imply that understanding the present is only possible with an understanding of the past without giving the past ontological power, that is, the insistence that all features of the past are corporate parts of the present. As we grow, parts are shed, as the bird molting. The Papers themselves are a critical part of our past, some parts molted, some parts wrong, some important parts still with us. We will refer to them frequently herein.

Our Problems

A picture containing person, people, suit, group Description automatically generatedOne only has to watch the immature sandbox behavior of Republicans in our current House of Representatives to see the gulf between our present federal government and any hope for an effective treatment for our current problems. Shown above is a generally out-of-control woman without a hint of grasping policy or even her own party’s erstwhile ideology grounded in responsibility and family values (along with the free market and the powers and rights flowing from individualism). She is actually a member of the House of Representatives, duly elected by citizens of the Fourteenth District of Georgia. Her screaming at Joe Biden during his State of the Union address puts her mind somewhere in second grade, although what she says betrays a more limited background, one acquired by perhaps intended transports from the real world. She is not alone. A member of the House from Colorado competes with her for the nonsense trophy, but in the running are the current Speaker of the House and quite a few other Republican members. Another newly elected member from New York State used a shockingly egregious set of lies to get elected, who is now under arrest, yet he is still a member of the House .

Since the era inaugurated by our most recent Republican President, this kind of behavior seems to have captured the imagination and approval of many party members. They have led Republicans to become the party of NO and calculated belligerence. One yearns for William Buckley and Dwight Eisenhower. One yearns for just one sensible proposal for remediating our difficulties in health care, education, poverty, race relations, global warming, homelessness, affordable housing, the wage gap, to name a few. Instead the group tosses out mindless suggestions about cutting back on Medicare and Social Security, only to retreat in a matter of days because, guess what, the people not only like the programs, tens of millions depend upon them, for living and critical services. And one yearns for respect, for our institutions, our government, our country, our people.

This is a serious problem. But it masks the depth and complexity of our real problems. As we note in the previous section, this depth and complexity has outrun the capacities of our elected leaders, in comprehension and in programmatic ameliorations. It is to this problem we now turn.

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The Living Constitution

A picture containing sketch, child art, drawing, painting Description automatically generatedIn Federalist 78 Hamilton claims the Supreme Court has the power to decide the meaning of the law and nullify any law in conflict with the Constitution. These critical powers were formally established in 1803 Marbury v Madison, a decision written by Chief Justice John Marshall, and perhaps the most famous case in Supreme Court history. These powers are nowhere written in the Constitution, to this day. Marshall’s decision served a particular purpose far beyond the issues of the case. He was protecting and building out the base of a Supreme Court with no enforcement power. He succeeded. While not the first instance of constitutional amendment without a formal written Constitutional Amendment, it is the glowing example for the rest, the paradigm, a kind of representative anecdote for a long history of constitutional change and additions without written amendment. Recent scholars insist that we must understand the unwritten parts to understand the Constitution entire, even that the written Constitution is unintelligible without the extra-textural components.

 consWe naturally focus on the written Constitution when discussing the Federalist Papers. But the Papers alert us to the prospects and importance of the unwritten Constitution as it unfolded over the centuries without describing it as such. They themselves “interpret” sections that refine or augment their textual powers, as the one mentioned above. They explain the Constitution which necessarily limits and expands the text in ways not reducible to the text, particularly given the rhetorical necessities of their enterprise; Hamilton’s entire disquisition on taxation in Papers 30 through 36 has no basis in the Constitution’s text. And Madison warns of changes made necessary by changing conditions when discussing the Necessary and Proper Clause, itself one the internal forces for external additions as seen by the Supreme Court. Indeed, it is the unwritten parts of the Constitution that has enabled the country to adapt its federal structure and operation to the enormous changes the country has undergone since its founding, all the while our written Constitution remains largely unaltered.

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The Administrative and Regulatory State

A close-up of a group of gears Description automatically generated with low confidenceIn 1800 roughly 4000 people worked in the federal government, most working at shipping ports to collect import duties, the principal source of federal revenue then. Now the federal government employs more than 2.5 million people directly, uncountable consultants and contractors, and another 1.3 million within the military. Another 27 million people work at state and local levels. We cannot assess the number of employees in private companies who rely largely on federal contracts or subsidies, but almost 45% of the GDP now runs through our governments, which suggests a very large number.

In addition to the agencies that spend money, there are agencies who regulate things from telecommunications to banking to toxic emissions to building codes to Medicare to collecting taxes. Around sixty of these agencies operate outside the control of the President or the Congress, each with limited legislative and judicial power. The best known are the Federal Reserve Board, the Securities and Exchange Commission, the Federal Communications Commission, and the Post Office. All of these agencies have employees below the cabinet or commissioner level who are for all practical purposes permanent, hence outside the replacement powers of elections. They perform duties that originated in a law but are transformed into regulations or procedures by the agencies themselves. The process is plagued with problems and uncertainties and cumbersome bureaucracy. Laws from Congress almost always betray compromises rooted more in ideologies than disputes on the merits of anything to get passed, are written in our complex world by people with limited knowledge of the issues who often rely upon favored lobbyists for advice and words, and passed by people with less knowledge of the issues, hence fail to provide perspicuous guidance to transformation into regulatory procedures. The procedures then grow and grow; IRS regulations now consume some 70,000 pages. Title IX of the Education Act is one sentence requiring equal treatment regardless of gender that became 81 pages from the Department of Justice, which then revolutionized sports for women. To a large degree the administrative and regulatory state at all levels runs the country now.

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Citizen’s Rights

A picture containing text, font, screenshot, symbol Description automatically generatedThe Federalist Papers are almost silent on the general question of rights. This follows in part from the absence from the proposed new constitution of a bill of rights, the most common objection to them during ratification debates and the only objection they actually requited after the government formed itself following ratification. The Papers cover those rights within the Constitution proper—habeas corpus, no ex post facto laws, no bills of attainder, trial by jury, no titles of nobility, and a narrow definition of treason. These fit the general sense of liberty one gets from the Papers—controls on government coercion.

Today a very large range of rights as citizens of the United States occupy a central place within our general political interests. Along with the government spending our money, they may be considered our first order concerns. Even much of our spending of money—on education, health care, social security and defense, say—flows from some sense of our rights to the services or equitable outcomes provided. Similarly, much of our public arguments about money well spent attends the same subjects, often with suggestions that they are really not rights, but privileges or something we should earn somehow or at least something on which we should spend less money. While these complaints usually flow from the right, the left has serious problems with the right to own a terrorist weapon or take a confederate flag into the capital (is this hypocrisy from the side that burns American flags as symbols of protest, now with Supreme Court sanction?). Government spending on these four services alone exceeds $5 trillion, or $15,000 for every man, woman, and child in the country. Their costs alone speak to their importance.

Our rights come in many forms and from many histories. Some are within the Constitution as amended itself. Some are assumed as features of a free people. Some come by way of Supreme Court decisions. Some have emerged over time through customs and practices and technologies. And some have yet to materialize, such as the right to health care and the right to broadband high-speed internet access. We present herein an enumeration of such rights in various categories and an evolving reference system for reading about them elsewhere.

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What We are Teaching in School

For reasons we will not get into here, schools throughout America have adopted programs and processes that encourage collaboration, diversity, and digital information access under a general sense of equity. These are valuable skills for civic engagement. Few would spend a lot of time today on actions for change if the time frame was seventy years. We are blessed now with modern communications, the Internet, Google and YouTube, Zoom. ChatGBT, social media, and habits that enable rapid formation of interest groups. Every federal law and regulation may be accessed through the Internet (such is not the case for all state and municipal laws). This does not improve their intelligibility, unfortunately, but one can at least read them. In any event, these capacities auger well for civic engagement that moves faster than women working to get the vote or black Americans hoping for some relief from horrors in the south and discrimination in the north.

However, the Internet and social media today have a kind of Tower of Babel feel, with disinformation, much of it intended disinformation, commonplace, particularly about political matters. Right wing journalism, our last Republican President, and many Republican elected officials today have clearly lost the power to distinguish truth from lies—not just confusions, but outright lies that are transparently so. The condition with our last Republican President is pathological, a kind of sickness, but he seems to have infected the rest of his breed; quite a few are in the federal House today. (We admit that all politicians play with the truth; it seems built into electoral politics. They use social media as a bully pulpit to amplify and spread disinformation. But recent election denials, after mountains of evidence that recent elections have not been tainted, pass a boundary that most politicians respect. The depressing part of this condition is that some election deniers get elected.) Left wing journalism and spokespeople have not sunk into such foul waters, but they still betray a substantial impatience with claims with which they disagree. We should not be thrown out of the room with suggestions that our current problems with race do not depend upon our history of slavery or that reparations will do no good, in fact may be harmful, both arguments made within an urgent appeal for far better treatment of black Americans. There are no simple answers to our problems with race relations, in part because our human dispositions regardless of race make the pressing of diversity and inclusion together in many areas of the human adventure difficult or undesirable; there is a natural tension between them, just as there is a natural tension between liberty and justice, or liberty and equality. There has yet to be formulated a clear and accepted explanation for “all men are created equal,” or which of the more than one hundred definitions of “liberty” should be accepted as the right one. The closing of minds, a condition on both sides of the aisle today, and sadly manifest in our “liberal” education system, blocks new thinking about our serious difficulties.

However, we hold out hope for the first paragraph above. If schools really promote diversity of opinion as well as race and gender, and schools promote collaboration among groups whose constituents disagree to some extent, and couple these with a stronger program of civic understanding and participation along lines we suggest in our Uses section, the student population could rapidly become the driving force behind an American renewal. Much of the preparation is already in place. Successful collaboration amongst disparate people and rapid information access if suitably qualified are entirely new facilities in human education and prospective discourse. All we have to do is turn the right key in the right lock. Now is the right time.