The Principles in Expanded Form

1. Political Man

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The Federalist Papers divide themselves into three general sections. Papers 2 through 36 defend more strength at the federal level, impeach the Articles of Confederation, and dilate on taxes and the military as examples of necessary federal powers. Papers 37 through 51 present Madison’s theory of republican government as expressed in the Constitution, followed by Paper 52 through 83 that go through each branch item by item. In the opening paper of Federalist 37 (where the Federalist Papers as a set of principles actually start), Madison names three central limitations on man’s cognitive abilities—the world itself is too complex to even classify fully much less fully comprehend; our minds are too limited even if the world could be understood (which we would not understand); and our language is not adequate to every idea that needs expression: “When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.” Madison here does not just claim incompleteness for language; he claims ambiguity at its foundation. Political discourse will be fraught with misunderstandings and confusions. How we create a stable political order in the presence of these incontestable incapacities will be a principal duty the Papers accept and fulfill to the best of their abilities.

These three incapacities help explain Madison’s assessment of political man in Federalist 10, where he declares the necessity that “different opinions will be formed,” ones immune to resolution by rational or deliberative means. He combines this idea with the natural distinctions among classes depending in part upon economic levels and man’s inclination to “fall into mutual animosities” to explain “factions,” people animated by a common political opinion, which opinion is hostile to other people’s rights or opinions. The political marketplace then comprises competing factions or interest groups working within the system to realize political power. While our political parties were formed after the Papers were written (by Madison and Hamilton, in opposing corners), they constitute the most durable factions in the country around one of the most durable tensions—the relative power of federal and state governments.

The Papers at times also advert to what may be called native injustices. They clearly consider slavery as such. But just the business of money carries dangers: “a power over a man’s subsistence amounts to a power over his will.” Hamilton says this twice, for limited purposes. But consider this applied to women, employees, piece workers, seamen—anyone dependent upon money from others to live on. Power over someone’s will is a form of oppression, a loss of liberty. As it arises from the very nature of economic systems with division of labor (an essential part of free market systems), it constitutes a persistent form of natural injustice, not always in fact of course, but often enough in fact to be important.

However, the Papers add a countervailing principle, a tension if you will. In Federalist 9 Hamilton claims: “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” Our understanding is limited, and will never be perfect, but it grows. The Papers consider our new constitution an example of just that kind of growth. At the end of Federalist 37 Madison congratulates the members of the Constitutional Convention for doing as good a job as is likely. He offers no standard by which this judgment may be made, but few would object to its meaning. At the end of Federalist 14 Madison thrills us with how wonderful is the brand-new experiment of a government for which mankind will be forever grateful. History has been kind to his assessment. Utopias are out; but growth in political wisdom and systems to match have materialized, and from that fact alone may be expected to continue, occasional backsliding as the world now exhibits notwithstanding.

Madison’s trumpet blaring in Federalist 14 and at least playing out the case in Federalist 37 suggests what will be a central point, not always explicit in the Federalist Papers, but always implicit: the collective is all. We find a way of agreeing, as a collective by voting, or as a way of accepting what a collective decides with which we disagree but grudgingly accept. The former is majority rule. The latter is legitimization. The pair enjoy the status of stabilizing a governing apparatus that preserves liberty in the face of government power and a laundry list of tensions that necessarily compromise or put in danger liberty (understood generally in the papers as freedom from arbitrary power, but never formally defined or elaborated).

Madison ends Federalist 37 with a rhetorical but factually disingenuous ovation for the Constitutional Convention:

The convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities, the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. . . All the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments.

As the Convention was conducted in secret, Madison could attempt such a claim without fear of contradiction except by those who were there. As far as we know, no one complained. But of the 55 delegates who began the Convention, only 42 were around at the end, three of them refused to sign, and not one of the signers held much hope for the document they signed to last twenty years. It was tormented by compromise after compromise, largely to appease small states, slave states, and states governed by men who held their power dear, such as New York, whose delegation reduced to Hamilton six weeks into the Convention. It was a paradigm of “party animosities the disease most incident to deliberative bodies.” But from it emerged our Constitution, all but unchanged in its written form to this day. It was the perfect example of the opposite force, that something had to get done, what Madison disguises to some degree in “were induced to accede to it.” Our entire political system is built around this tension: people will not agree until something has to get done—a budget, a judicial decision, electing a speaker of the House, a trade agreement with a foreign country, a necessary declaration of war (which has never been unanimous in U.S. history). The Constitution is often portrayed as an instrument that defines and limits powers. But it is equally an instrument of imperatives to act in the face of human truculence.

We pass to the more general subject of tensions.

2. Perpetual Tensions

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Hamilton opens Federalist 1 with the tension between choice and force. He ends Federalist 85, the last of the series, with the tension between federal and state power. Madison opens Federalist 37 with the tension between liberty and power, a version of the tension between choice and force. Jay opens Federalist 2 with the observation that governments can only be formed if the people surrender some of their rights (he does not provide a list), a clear tension with the Declaration’s statement that “to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.” Hamilton spends Federalist 11 on the tensions within international economic and transportation systems. Madison spends time in Federalists 62 and 63 on the natural tension between limited terms (a key part of republicanism) and the need for stability in administration and policy making that auger for longer terms and real experience. Hamilton and Madison both advert to “parties” formed around opposing views before there were formal parties within the new system of American governance (Whigs and Tories dotted the political landscape when we were British), a perpetual tension that has shaped our political dialogue for more than two centuries. While the inherent tension between slavery and the southern economy evaporated with the Thirteenth Amendment in 1865, its residues in racism and discrimination based on diverse characteristics feels like permanent tensions, and if not permanent, certainly still operational today. Both principal writers say in several different ways that the people are the foundation of power in our government and the people cannot make predictably good decisions, hence the need for representation. The list of tensions recognized explicitly or implicitly in the Papers fills out several pages.

Tensions work in two directions. Some are like tensions in a molecule—they hold things together. As long as we oblige the rule of law and majority rule, the tensions among factions are also productive, often creative. Indeed, disagreement is the soul of innovation, and innovation is the soul of change. The tensions among the three branches tend toward coherence so long as each branch behaves according to the Constitution. As Hamilton notes in Federalists 70 and 73, the outcome is more to avoid bad laws than create good ones, itself a tension. But some tensions point the other way, towards chaos. As northern states outlawed slavery (complete by 1825), southern states came to assert their inalienable right to “establish new guards to its security and happiness” as the Declaration has it, but unlike Americans in 1776, they lost the ensuing war. The tensions created by the Lost Cause persist to this day, in ways that are generally harmful. The natural tensions within even a regulated free market economy, which tends to concentrate wealth in a few hands, and the needs of both the economy and the people to more equitable forms of distribution, is generally harmful and, as we have found, demands government intervention.

Of course, this is a central tension by itself, one that perplexes on a continuing basis. To manage the large flock in any party, the party line has to be relatively simple and intelligible in a simple-minded way. One does not spend a lot of time at the Heritage Foundation mulling the deeper and likely conflicted dimensions of “family values” or “the free market.” On the other hand, political discourse around real political problems must be, or should be, conducted in the fullness of their complexities and tensions. “Universal Medicare” may hold the Democrats together and win votes, but it makes no sense as a full solution to the enormous complexities and conflicts within our deeply compromised health care system.

Tensions themselves are seldom stable. In Federalist 10 Madison observes that: “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.” He is discussing the size of the House, but he refers to “most other cases” as if a general rule. Tensions often require resolution, even if temporary, which takes some middle ground. At times we have invoked military conscription to feed an army, a resolution between force and liberty favoring force. At other times our constraints on the courts and police relative to criminal justice favors liberty when unable to imprison an obviously guilty person for want of a proper Miranda warning. Such instances tend to accumulate for a while, then subside, creating a kind of oscillation from one edge of a tension to its opposite, but never quite reaching an end point that dissolves the tension. We see this phenomena most particularly within the dynamics of our next paragraph or two.

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One cannot leave this subject, even in this truncated form, without opening the door of our two political parties, who enact in their rhetoric and interactions the operational tensions of our system. We can see the reasons for political contests in Federalist 37 and 10. But the Papers do not anticipate a two-party system, each around a set of principles that are opposite the principles of the other party. We have a two-party system, rather than a multi-party system as may be found in parliamentary governments, because we have a single President who is now elected more or less by the people (in parliamentary governments the head of state is usually the leader of the majority party in the legislature, and is an elected member of the legislature). We have other parties, each so small that they only have a measurable effect on local elections. The system of primaries in most states all but force citizens to be of one of the two parties to have a voice. Votes for much smaller parties are wasted, or sometimes have counterproductive effects, such as Ralph Nadar’s winning 5% of the vote in 2000, handing the Presidency to George Bush rather than Al Gore.

The central division between the two parties turns on federal power—Democrats wanting more, Republicans wanting less. It has always been so. The original parties, collected around Hamilton on the more side and Jefferson and Madison on the less side, formed around two brutal disputes, one about creating a national bank in 1791, the other about a treaty John Jay negotiated with Britain in 1796. Other critical issues have not always followed the party in the way they are currently distributed, and there were times such as the division before the Civil War where something else served as the principal wedge. For example, the party most in favor of free market economics in 1796 was Hamilton’s party, the one also favoring much stronger federal government. Today that honor goes to the Republicans, who chain the free market to more limited federal powers.

Our two parties today, it could be argued (as we do elsewhere on this site), have lost touch with today’s political realities and problems. The Republicans do not have a program beyond defunding programs. Many programs now promoted by Democrats ran out of steam years ago; they have clearly attended to certain new issues such as global warming, but far below what many feel is necessary. (Of the last four Presidents our current President seems the least deserving of this complaint—he has addressed many areas of concern with legislation that will make a difference. However, even he has failed to address many of our serious problems, as outlined above.) Even those areas in which programs appear responsive were reactive, forced upon them more than anticipated.

However, we should not lose sight of the benefits we get from the two parties. One, they are instruments for very efficient fund raising that, if not devoted entirely to 15 second rants against an opponent on various media, could be put to very beneficial use. Two, they organize millions of people around political ideals, again ones that, with some pruning and innovations, might actually start to serve the country. Three, the two party ideologies are generally simple-minded and coherent enough for most people to understand enough to embrace one or the other, allowing them to participate in politics without knowing much. While distasteful in a way, the sense of belonging to a cause is the first act of civic engagement, without which the exposure to more granular and realistic pictures of particular issues and the general political world would set up insuperable barriers for most. Indeed, the complexities of this site and the Federalist Papers would be foreign soil without a background that often looks like nonsense in today’s electoral politics. [Read Some About What Each Party Stands For Today]

3. Republicanism, Federalism, and Separation of Powers

Voting is All

The Federalist Papers are both a description of our collective governments (not just the new federal constitution) and a justification for them, that they are the right form and substance. As noted above, the justification depends upon the fit between the form and substance of our collective constitutions and the purposes the Papers name but do not explain. But the justification also depends upon the fit between the form and substance and the problems given just above relative to our limitations as human beings and the sea of tensions in which any government must swim. As much of the form and substance were designed around the latter as the former. Hamilton’s recitations about failed republics of the past were generally grounded in human cupidity, corruption, and natural limitations rather than failure to fulfill certain goals. When they sank into autocracies, of course, the goals were forfeited, but they did not sink into autocracies because they failed the goals when republican. So the promise was a government that not only fulfilled certain objectives, but a government stable enough to continue to do so.

In Federalist 47 Madison gives a brief summary of each of our original constitutions from the original thirteen states, each created between 1776 and 1780, each different from the others, but sharing the essential features of the republican form—elected leaders with limited terms—and the separation of the three operating branches of government—legislative, executive, and judicial—with enough balancing among them to keep each in line. That paper is worth a read just to see the many variations available to any entity hoping to shape a republican government, with a clue to why the representatives of each of these states (excluding Rhode Island, which boycotted the Convention) could wrangle so long and energetically over constitutional details. In early Papers Hamilton argues that these constitutions did not work well enough to either allow the thirteen states to operate as one entity when required or to function with each other in a civil and harmonious manner. Hamilton and Madison both take potshots at certain specific features of some state constitutions, largely to justify areas in which the federal constitution does something different.

However, the federal constitution as proposed goes no further than guaranting each state a republican government (Article IV, Section 4); it gives itself no power to intervene in any state’s actual constitution and imposes very few constraints on state operating procedures. This limited scope was the sore spot for both Hamilton and Madison as they left the Convention. Madison wanted a federal veto power over state legislation; Hamilton wanted state governors to be appointed by the federal branch and to possess absolute veto power over state laws. Left free, state constitutions have migrated over time to a form shared by almost all of them, which form has features more agreeable to the republican form than the federal constitution—direct popular election of governors, separate election of attorney generals (to give them independence relative to everyone), recall, referendums for constitutional change, and internal demands for balanced budgets among others. Some have argued that updating the federal constitution to more closely resemble current state constitutions would be a substantial improvement. But the federal amendment process (Article V), requiring approval by three-fourths of the states, makes textual changes now all but impossible for anything substantive. Changes now only happen at a non-textual level, the level of the great unfinished symphony that we discuss below.

In essence, the republican form “derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior” (from Federalist 39). “Indirectly” means appointed by someone who is elected. “During pleasure” means short terms with a power to remove if necessary. “During good behavior” means for life unless removed for cause (impeachment and conviction) or retirement. The last invariably applies only to members of the judiciary. The “great body of the people” then meant all free propertied males with a property qualification (although New Jersey at that time allowed widowed women with inherited property to vote, a “mistake” they corrected some years later). Suffrage has expanded over time through constitutional amendment to embrace all citizens eighteen and older (with a few exceptions, such as the many states who exclude those who have been imprisoned for a felony). The Senate was originally appointed by state legislatures but is now elected directly, a change wrought by the Seventeenth Amendment (1913).

Separation and Balance of Powers embraces two ideas: the legislative, executive, and judicial functions must be as separate as possible, but each should have some powers relative to the other two that mitigate encroachments from the other two. About this subject is perhaps the most famous paragraph in the Federalist Papers, from Federalist 51:

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.

Madison names but four such “auxiliary precautions” in Federalist 51: two houses of Congress with different terms; the veto power of the President over passed legislation, subject to a 2/3 vote override by the Congress; the division of objects of government between state and federal governments; and the size of the country that mitigates menace from majority factions. But the Constitution, both the one he was defending and the one that has grown over time, contains many more:

  1. Power of removal of any member of any branch by impeachment.
  2. Money bills originate only in the House, originally the only legislative group elected by the people.
  3. Only the Congress can borrow money; only the executive branch can spend it.
  4. Budgets are proposed by the executive branch but must be approved by the legislature.
  5. The President is commander-in-chief but only the Legislature can declare war.
  6. Treaties are made by the President but must be confirmed by the Senate with 3/4 vote.
  7. Key executive appointments must be approved by the Senate (majority vote). This includes appointment of Supreme Court and inferior court justices.
  8. The Supreme Court may nullify any federal law if it violates the Constitution (not explicit, but strongly implied, and put into practice first in 1803 without an opposing whimper).
  9. As of the Twenty-second Amendment (1951), the President may only serve two terms. The Congress is not term limited.
  10. The Constitution proper names certain rights (habeas corpus, no ex post facto laws, no bills of attainder, no titles of nobility, trial by jury) which are embellished by rights within the first ten amendments (the Bill of Rights) that constrain the federal government, followed by the Fourteenth Amendment that over time applied most of these limitations on infringement of liberties to the states.
  11. Finally, one few will remember, based on the twenty-fifth Amendment (1967), should the Vice President leave office for whatever reason (including becoming President upon the death, resignation, or impeachment of the sitting President), the President shall name a successor to serve until the next election, but subject to approval by majority vote of both houses of Congress. This procedure was applied when Richard Nixon appointed Gerald Ford to be Vice President in 1973 after the resignation of Spiro Agnew. Of the nine Presidents who became so by the death or resignation of the previous President, only Ford was never actually elected to either office by the people.

It is important to ask how these various constraints of one branch of government on the others have affected the general performance of our governments (the general idea of this list is in every state constitution, in varying forms and degrees). These constraints surely affect efficiency and speed of execution. Hamilton not only admits the probability; he celebrates it. In Federalist 73 he writes (relative to the Presidential veto power):

The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. . . . The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.

When one stirs two opposing political parties into this mix one can see why Washington moves with all deliberate slowness, is generally reactive rather than proactive, and lacks the creative impulse. In many places the Papers count this as the cost of liberty. A smoothly running efficient federal government would pass and execute laws so quickly that the final control available to the people when such governments become autocratic (and they will)—the power to vote the bums out—becomes ineffective.

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Federalism is a confusing word given that our central government is called the “federal” government and the Federalist Papers are about the constitution of the national government, not the state governments. However, the word in the context of government structures in the United States refers to a system in which each state has a republican form of government created through a written constitution (see Article IV, Section 4), and which state governments have all those powers requisite to proper government that are not allocated by the Constitution to the central government (see Amendment Ten). Madison contrasts it with “national” forms of government in Federalist 39. As we note in the opening of this section, the actual distribution of powers between federal and state levels have changed dramatically. The Papers repeatedly name just four areas of power for federal authority—war, international relations, interstate commerce, and domestic rebellions; they declare that all remaining powers belong to the states. However, they also use the phrase “residuary powers” for the states, meaning all the power the states had during the period the federal government was controlled by the Articles of Confederation. The Papers are silent on powers that arise from new demands upon the general apparatus of government in the country, but the next two principles suggest how they should be treated.

It must be said that federalism may be the most contentious of the three forms comprising our government identified here. The core arguments and sources of compromise at the Constitutional Convention arose from states objecting to losing power—the small states relative to the large states, the southern slave states relative to the northern states in the process of rendering slavery illegal, the Atlantic border states relative to states looking west. The tensions over slavery have left the parchment but not the public. The Lost Cause still forms one or two portals of the hearts of many in the south, and anchors one wing of the Republican Party; state rights still shape their spirit. The residues of slavery fill the same number of portals in liberal hearts determined to redress those grievances with things like reparations; they lean towards national powers for support. While Madison and Hamilton both urged much stronger control over states in the Convention, the two went opposite ways after, Madison with Jefferson on weaker federal authority, Hamilton on stronger. What comes from this history, though, is that states forced compromises at the Convention that have been awkward and contrary to republican principles, surely contributed to the Civil War and the radically extended influence of slavery, and crippled majority rule on critical issues like constitutional amendments, the character of the Senate, and how we elect a President. It is very hard to reconcile the history of state’s rights with common arguments today that liberty has been seriously compromised with the loss of state power (if that is the construction—there are other constructions) if liberty is measured by its calculus in the past.

4. Governments must have Powers Commensurate with their Duties

The new constitution created a federal judiciary and a federal executive office that did not exist under the Articles of Confederation. But the new constitution did not significantly expand the explicit duties granted by the Articles. They were three of the four named above, only omitting interstate commerce. What the Articles lacked were the two branches necessary to be a government at all, any connection to the people through elections, and the power to tax (there were others but these were the central limitations). Hamilton and Madison both declare in several places that governments must have powers commensurate with their duties, means suitable to ends. Neither of course anticipated the enormous changes America would transition through, nor the enormous array of new issues the governments would face over time. But each writer took the trouble to identify state powers as “pre-existing authorities” (Federalist 82) and “residuary sovereignty” (Federalist 62), as if to notify that future issues might arise that would demand some assessment before just allocating them to the states. Madison alludes to this prospect explicitly in Federalist 42.

The problem of course is that the Tenth Amendment explicitly allocates all powers “not delegated to the United States by the Constitution, not prohibited by it to the states” to the states or the people. The powers so granted the federal establishment are given generally in Section 8 of Article I; the list looks very much like the four areas enumerated in the Papers. We can call this a system of ‘divided sovereignty” with almost no overlap between state and federal duties. Over time that system has morphed into one with “shared sovereignty,” or what Hamilton’s calls “concurrent powers” in Federalist 32 (referring to the rights of each level of government to tax the same parties or sources of revenue) and Federalist 82 (referring to judicial powers). The federal government now has its nose into practically everything. The levels vary greatly with the issues—federal power is strong relative to securities law, telecommunications, Medicare, controls over air transportation, among many others, but has relatively little power over education, building codes, local protection services, insurance practices, and many others. Indeed, for many areas like affordable housing and infrastructure, the federal government does little more than supply money under some rules, with state and local authorities making all the decisions.

However, some words in the Tenth Amendment are seldom mentioned, namely, “or the people.” As both allocations are completely open-ended, we are left with an extra-textual conundrum about what this might mean and how we might allocate residual or new powers. The Papers say repeatedly that the sovereign engine of our government is the people, not the states. In Federalist 39 Madison identifies those features of the Constitution that are specifically “national,” and which are “federal,” meaning shared between federal and state. But he opens Federalist 39 with a reference to popular sovereignty as the ultimate source of power. This would suggest that the people should have pride of place in administering or ministering to unenumerated powers, not the states. If the people vote their share of power back to the federal establishment, new powers inure to the federal government in perfect concert with the Tenth Amendment. As the people elected Franklin Roosevelt, Harry Truman, and Lyndon Johnson, the three architects of our modern state, we can infer that the people have spoken in favor of expanded federal powers. That no Republican President since Johnson has found a way of reducing those powers, they become increasingly sticky, some even looking like constitutional powers.

It will certainly be clear to many that the distinctions about powers commensurate with duties do not shine forth with radiant transparency for most. Indeed, a central division between the two parties today circles this very question, both in terms of the duties to be assumed by the federal government, and how much power (meaning money) such duties demand. The last two Republican Presidents significantly downgraded the duties of the Environmental Protection Agency to save money and avoid what they saw as a deep hole if we took global warming seriously; Democratic Presidents following them revived the older charter and took aim at global warming. In 2021 the Senate, with a 50-50 party split, removed half the subsidy for broadband equity provided in the House Infrastructure bill, forcing states or municipal governments to either make up the difference or leave millions of homes without adequate broadband. In the term of our last Republican President Congress tried to reduce spending under the Affordable Care Act in ways that would have denied insurance to 20 million people (and done almost nothing else); it lost famously by one vote in the Senate.

However, there is an inverted form of this dilemma. Municipalities, particularly smaller ones, try desperately to put a lid on municipal taxes (most in the form of property taxes), meaning they struggle to limit municipal duties that demand money. A common form this anxiety takes is seeking state or federal subsidies. Somehow money from higher orders does not seem to come from the same pockets as those living in the community. Thus around 35% of municipal spending has derived from transfers from state and federal governments for the past decade or two. They pay for things like roads, bridges, special education, affordable housing, and subsidies for the poor and handicapped.

How did our governments get into this messy, unclear business of sharing sovereignty when the start was so clean and simple, without changing the Constitution? Answering this question would take a volume of considerable size, but we can point to three factors that would figure in any more comprehensive explanation: (1) the country’s economic, technological, demographic, geographic, and world standing conditions changed so radically that hundreds of new demands were placed on our governments that were not even imagined in 1787, many of which seemed to require centralized attention; (2) the commerce clause in Section 8 of Article I has been stretched to accommodate almost anything that moves, allowing new initiatives and agencies to arise without new amendments; and (3) the acceptance of implied powers as opening a large set of gates was endorsed by the Federalist Papers (particularly Papers 6 and 44), made a formal feature of the unwritten Constitution by John Marshall through some key Supreme Court decisions in the first part of the nineteenth century, and has never been successfully pushed back into the bottle by conservative administrations. The central argument advanced by Marshall in the keystone decision, 1819 McCullough v Maryland, hinged on the requirement that means must be provided commensurate with ends, even if those means were not scripted in the Constitution proper.

These last two features justified the first independent regulatory agency, the Interstate Commerce Commission (ICC) authorized in 1887 to regulate railroad rates, which agency had a commission appointed by the President but was otherwise on its own—the President could not remove any commissioner except for cause and as a consequence had little or no power over its activities. While the ICC was formally closed in 1995, its model spawned many imitations in other areas, of which sixty or so now operate in Washington, including the Post Office, the FED, the SEC, and the Federal Trade Commission. They have law making and law enforcement capabilities, circumscribed of course by their purpose. Some call this group the “fourth branch” of our government given that it subsumes the powers of all three branches within the offices of each agency. Among the reasons for the continued appeal of these agencies is that their commissioners must be from both parties, a balancing that promotes if not ensures bilateral decision making and a level of efficiency denied any other operating branch of our government. The FED can change interest rates all on its own, at any time, without any involvement with Congress or the executive branch, hence is never subjected to the vicissitudes of Congress when it gets in one of its NO moods and threatens to shut the government down. However, this feature goes against the grain of much of what the Federalist Papers promote as necessary checks and balances within the government.

5. The Experiment is Perpetual

In Federalist 37 Madison observes that: “Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people.” In Federalist 49 he argues against frequent popular review of the Constitution on the same grounds. In Federalist 62 he defends the six-year term of the Senate on grounds of stability. Hamilton makes similar references to stability relative to four-year term for the President and his (then) power to return to office as long he is elected. On the other hand, Madison observes in Federalist 43 that “useful alterations (to the constitution) will be suggested by experience (that) could not but be foreseen.” His observation harkens backward; no one predicted the exact character of the United States Constitution before it was born. But it also harkens forward. Conditions will change; they always do. The conditions within the United States after 1787 have changed so dramatically that we can hardly understand the period of our founding. Hamilton quotes David Hume in the last federalist paper as follows:

To balance a large state or society [says he], whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; EXPERIENCE must guide their labor; TIME must bring it to perfection, and the FEELING of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments.

Madison makes a similar observation about laws in Federalist 37. He also not just admits but raises to the level of exaltation the experimental nature of the new constitution in Federalist 14, never before brought to the minds of men. On two occasions they recognize that things will likely change in ways that could not be anticipated in 1787. This collection of observations implies if not entails a sense that the Constitution will always be a kind of work in progress. The words have not changed. But the world to which the words are applied has changed, dramatically.

We find it difficult to not report Madison’s exaltation in full. If follows:

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 scene 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 defense 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 rendering 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 favor 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 laboring 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 modeled by the act of your convention, and it is that act on which you are now to deliberate and to decide.