• We The People Podcast

James Madison, Ratification, and The Federalist Papers

September 16, 2021

September 17 is Constitution Day—the anniversary of the framers signing the Constitution in 1787. This week’s episode dives into what happened after the Constitution was signed—when it had to be approved by “we the people,” a process known as ratification—and the arguments made on behalf of the Constitution. A major collection of those arguments came in the form of a series of essays, today often referred to as The Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay using the pen name Publius and published initially in newspapers in New York. Guests Judge Gregory Maggs, author of the article “A Concise Guide to The Federalist Papers as a Source of the Original Meaning of the United States Constitution,” and Colleen Sheehan, professor and co-editor of The Cambridge Companion to The Federalist, shed light on the questions: What do The Federalist Papers say? What did their writers set out to achieve by writing them? How do they explain the ideas behind the Constitution’s structure and design—and where did those ideas come from? And why is it important to read The Federalist Papers today?

FULL PODCAST

This episode was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Sam Desai, John Guerra, and Lana Ulrich.

PARTICIPANTS

Colleen Sheehan is the Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. She is author of numerous books, including several on James Madison, and she co-edited The Cambridge Companion to The Federalist.

Judge Gregory E. Maggs is a judge on the U.S. Court of Appeals for the Armed Forces. He was a member of the full-time faculty at GW Law School from 1993 to 2018. He is the author of numerous works including the article “A Concise Guide to The Federalist Papers as a Source of the Original Meaning of the United States Constitution.”

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

 [00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. September 17th is Constitution Day, the anniversary of the framers signing of the constitution in 1787.

This week, we dive into the philosophy of the Federalist Papers written by Madison, Hamilton, and John Jay to support the ratification of the constitution after it was signed. I'm so excited to be joined by two of America's leading experts on the Federalist Papers. Colleen Sheehan is director of graduate studies at the Arizona State School of Civic and Economic Thought and Leadership. She's the author of many books, including several on James Madison, and she co-edited The Cambridge Companion to The Federalist. Colleen, it is wonderful to have you back on the show.

[00:01:05] Colleen Sheehan: Always happy to be here with you, Jeff.

[00:01:07] Jeffrey Rosen: And Judge Gregory Maggs is a judge on the US court of appeals for the armed forces. He was my colleague as a member of the full-time faculty of GW Law School from 1993 to 2018, still teaches. And he's the author of many works including the article, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution. Greg, thank you so much for joining.

[00:01:34] Gregory Maggs: I'm delighted to be here. Thank you for inviting me.

[00:01:36] Jeffrey Rosen: Colleen, in your wonderful essay in the Cambridge Companion to the Federalist Papers, you write that the Federalist Papers can be traced back to Aristotle and the declaration of independence. And for Madison and Jefferson, you write, the freedom of the mind is the basis of all other liberties and rights. Each person has the right and responsibility to exercise freedom in a manner that accords with reason and manages to govern passions. And therefore, you say the rightful exercise of majority rule as described by the Federalist Papers is the accomplishment of the cool and deliberate sense of the community or the reason of the public. Tell us, distill the essence of the Federalist Papers and its classical antithesis between reason and passion.

[00:02:28] Colleen Sheehan: Well, that's a small question to start with. Thank you, Jeff. [laughs]

[00:02:32] Jeffrey Rosen: That, that's why I ask it.

[00:02:33] Colleen Sheehan: ... So the reason it goes back to Aristotle is because Aristotle comprehensively looked at the problems of politics, and the problems of politics have to do with human nature, that we don't always get along with each other, and that if we're gonna live in some kind of community so that there could be something more than just mere survival, but possibly more than safety, possibly freedom, even possibly happiness or the pursuit of happiness, then we have to find ways to live together. We have to do the kind of things that lawyers wanna do, make laws. But of course, not all laws are good laws not all laws are just.

And as Publius says in Federalist 51, 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 will be lost in its pursuit. And that's the challenge. How do we live together in such a way that we treat each other decently, fairly, justly? Well, if we want to have free government, government based on consent of the governed, on what we might call popular government or democratic republicanism, then the majority is going to rule. But of course, the age old problem is that a majority can be just as unjust as one individual. And when they have, when you have power in your hands, it's likely to be abused.

So the challenge Publius sets out for himself if we wanna speak of him, the three of them as one person, because they all signed the, the Federalist Papers under one name, Publius then we have to see that their challenge is they're, they're dedicated to the people ruling, government by the people, but it has to be also government for the people that is for all the people for the common good. So that's the challenge Publius sets for himself. And in other words, what we have to do is find a way for the majority to rule not on the basis of mere interest, self-interest, not on the basis of mere passion and prejudice, but on the basis of justice and the general good that is reasoning the, the thing that human beings have that the other animals don't have, that we can reason together to come to understand not simply what this abstract idea of justice is, because justice is really about it's, it's the social virtue. It's how we treat one another.

The American Republic that Publius is trying to describe as they've thought about it and framed at the Constitutional Convention in that long, hot summer of 1787 in Independence Hall was really about one thing, how can the people govern themselves, genuinely govern themselves? That is in such a way that they treat one another well. That's the American experiment.

[00:05:44] Jeffrey Rosen: Beautiful [inaudible 00:05:51]. And thank you so much for that. Greg, why should we care about the Federalist Papers as a legal source? In your important article in the Boston University Law Review, The Federalist Papers as a Source of the Original Meaning of the United States Constitution, you respond to the familiar arguments about why the Federalist Papers are not a good source of original meaning, including the idea that delegates to the state ratifying conventions didn't read many of them, they're often self-contradictory and so forth. You run through the objections and you refute them. Tell us why the Federalist Papers are a reliable guide to be original meaning of the constitution according to several different definitions of original meaning and original understanding.

[00:06:35] Gregory Maggs: Well, first of all, I, I don't think I refute the counter-arguments. There are arguments against it. I, I, I merely point out that it's sort of a mixed bag, that the Federalist Papers are a very important source of the original meaning of the constitution, but they are certainly not a perfect source and they are subject to many, very valid obje- claims made based on them are subject to many, very valid objections. However these objections also have counter-arguments which sort of mix the picture together.

You know, I think building on what Professor Sheehan said the Federalist Papers is a rich source of political philosophy. And I think one of the genius aspects of this was that the framer that the Madison and Hamilton and just sponsors and Jay, they had one mission, which was to convince the people of New York to ratify the constitution. And in order to do that, they had to take certain practical steps. They had to explain why the Articles of Confederation were problematic. They had to explain why we needed an important strong union. They had to explain the structure of the government, that it wasn't going to be a national government, it wasn't gonna be a federation. It was gonna be a federal system.

They had to also describe the Senate, describe the house, describe the judiciary and so forth. And at the same time, they included all the kinds of very important philosophical and political science arguments that Professor Sheehan remarked, so sort of ingenious meshing together of the two things. Well, in the process of doing this, they describe nearly every aspect of the constitution. And so if you're interested in knowing something about the original meaning of the constitution a source that is perhaps the most frequently cited source is the Federalist Papers because nearly everything that we talk about today has something said about it in the Federalist Papers.

Now, I should point out though it is not necessarily a perfect source. So for example, many people cite the Federalist Papers as a source of evidence of the original understanding of the constitution. That is to say, well, what did the people who ratified the constitution at the various state ratifying conventions, what did they think it meant? And I think a strong counterargument is most of them didn't read the Federalist Papers. In fact, half of the Federalist Papers weren't written until over half of the states had already ratified it. And one of the most cited papers paper number 78, it wasn't written until after eight of the states had already ratified the constitution.

But, you know, I think a counterargument to that is that it is a repository of the arguments that supporters of the constitution were making. And we know that the supporters won the day and something must have persuaded the ratifiers to adopt the constitution, and it was probably something similar to the arguments that were in the Federalist Papers. In other words, even if people didn't directly read the Federalist Papers, the Federalist Papers is a repository of the kinds of arguments that strong supporters of the constitution were making. And of course, ultimately the constitution was ratified.

[00:09:33] Jeffrey Rosen: Colleen, you have honored the NCC by joining a really exciting project called The Founders Library. We're putting online the sources that inspired the founders, and having the pleasure of learning from you about what Madison read before the convention and while writing the Federalist Papers, and how that influenced his distinctive understanding of faction as the triumph of, of, of passion over reason, of self interest over devotion to public good. We were brainstorming this now, but give we the people listeners a sense of some of the main books that Madison read before and during and after the convention that influenced the Federalist Papers.

[00:10:14] Colleen Sheehan: Sure. Before, before I talk about that, Jeff, let me just follow up on the, the last question momentarily. Jefferson said about the Federalist Papers that they're the best commentary on the principles of government that were ever written. And so I agree with Judge Maggs that you have to look deeper than just one argument here or there in terms of what people at the ratifying conventions were talking about and whether or not they'd read the Federalist Papers or any one particular one was published yet, because what Hamilton, Madison and Jay, mostly Hamilton and Madison did was they understood the principles that they were, that, that they at the federal convention were trying to implement into this document.

You know, it's not just words on paper. Those words are there for a purpose, are meant to accomplish something. And the Federalist Papers has a depth of commentary that's more than just describing article one, article two, article three. It's telling us what they are trying to accomplish and how the founders went about that. And I don't know a better commentary than the Federalist Papers that does that in terms of the purpose and design, the argument and action of the United States constitution. So what did Madison read? Madison read most everything. He, he, he didn't read every book in Jefferson's library, but he was constantly borrowing books from Jefferson's library whenever they lived in the same city.

For example, in Philadelphia when the, when the new government was just started Jefferson as was, was [inaudible 00:12:16] had to remodel his rental, rental property. And he built a whole library in it. And Madison was constantly borrowing books from him, in addition to the hundreds of books Madison had packed and taken with him. Imagine that, how, how long it took to get from Montpelier to Phi- Philadelphia. And what you take with you mostly is your books. I mean, that's Madison. He had a rented room in Mrs. Houses boarding house, because he's a bachelor. He's there in this boarding house with all these other folks. And, and basically his room is just full of books.

Madison was the scholar scholar of all the founders. John Adams wanted to be, but I think it's Madison who truly was. He read Aristotle, Plato, Xenophon, Thucydides for, for as examples of the classics, Cicero. He read, oh, he really studied Montesquieu. Of course, Locke, Hufendor, Sydney. The list goes on and on. They all read Hobbes and didn't like him that, that... and, and, and Madison comments on, on Rousseau once, and in not very kind terms. He didn't care much for Rousseau. So Madison's idea of how the majority rules is not the Rousseau in general will. He thought about all these things and he agreed with some people about some things and, and disagreed about other things, but he also had this independence thought, this spark of brilliance, and which he's the one, I believe, and I'd love to hear what Judge Maggs says Madison thinks that what he's discovered is a way to make popular government good government.

In other words, they talked about liberty hangs in the balance. The eyes of the world are upon us. We are engaged in the great experiment of self-government. And what that means is can a people govern themselves in a way that truly respects one another? And it's not just majority faction injustice and oppression. Madison thinks that he's found a way to do that, and has to do as you know, Jeff with this idea of an extensive territory and a larger number of population. And so the faction can counteract faction.

But it's more than just that negative faction counteracting faction. That's a big part of it, but there's a reason you want factions to be thwarted. It's so that the ma- there's time for the majority to refine and enlarge its views, to refine and enlarge the public views so that justice will reign rather than injustice. That's the goal of that Publius sets for himself in the Federalist Papers to show that Republican government can really work. And that when the eyes of the world are upon America, we're going to show the world as Robert Frost once put it not just how things work, but how democracy is meant.

[00:15:12] Jeffrey Rosen: Thank you so much for that. Greg, do you agree with Colleen's statement that Madison discovered for the first time in the history of the world a way of making popular government by good governments, and the way that he did that was by floating factions to give majorities time to refine and enlarge the public views of the justice and reason could prevail? And then after you tell us whether you, you agree with that, or wanna amplify on it, maybe introduce us to the idea of how Madison achieved that goal.

[00:15:43] Gregory Maggs: Well, you know there, there are probably s- I, I do agree with it, and I think there are probably several examples that could be given. But I think perhaps the best one concerns the idea of federalism. And Madison's idea or at least explanation of the idea that having two governments rather than one preserves individual liberty. It's been a very influential idea an idea that Justice Kennedy cited in various ways. And it seems counterintuitive when you first hear about it, that well, all of a sudden, there's gonna be two governments regulating. But when you realize that certain things will be left to the national government and others will be left to the states you realize that this has a tendency to break apart factions but to still allow local interests to be governed.

And, you know, we really didn't have a federal system of the kind that was developed in the world before this. And certainly, there wasn't a political science experiment or explication of this system until the Madison described what the different theory would be. In addition, there were of course, many debates about whether you could have a Republican government in a large country as opposed to say a small city state, and Madison of course, came up with the idea that well, actually, it's gonna work better in a large territory, because it'll have the the benefit of breaking apart factions. We'll have delegates who have to represent many people, and it will be difficult for factions to control in such an area.

I mean, again, I think this was original thought. This was, this was not something that had been tried and done before. And certainly the theory behind it hadn't been explained. Now, whether Madison completely invented it, or whether it's a joint product of all the people at the convention you know, I think that's a fair subject of, of debate. I don't think Madison claimed to be the sole inventor but I think he was one of the original explainers of the system and perhaps the best advocate for the system.

You know, just and I mentioned in my article that courts often cite the Federalist Papers, and there seem to be two sort of strands of citations at the Supreme Court. Some justices like Justice Scalia and Justice Thomas look at it for details. You know, when they use the word commerce, do they just mean trade or do they mean something broader? And then there are others like Justice Kennedy, who's obviously now retired but he looked at it for the big principles. He looked at it for questions of state sovereignty, of of federalism, of what was the overall picture of what they were trying to accomplish. And I think that's probably most in line with the kinds of things that Madison was trying to get at in his essays.

[00:18:20] Jeffrey Rosen: Thank you so much for that. Colleen, Greg mentions Madison's refinement of Montesquieu's view that a Republic is only possible in a small territory. You've written a wonderful article, Madison and the French Enlightenment. The Authority of Public Opinion, where you describe the influence of his thought on thinkers, including one you've recently called my attention to [foreign language 00:19:39]. So we'd love you to help us understand what Madison was reading that influenced his view of public opinion and how that affected his refinement of Montesquieu, and whether or not that was original Madison or not.

[00:19:01] Colleen Sheehan: Yeah. So, so Jefferson is in Paris as minister to France, right, in the late 1780s. And he's there. Well, Madison is with everyone else at the Philadelphia convention framing the constitution, and Jefferson will come back after the formation of the new government under President Washington. So during that time, Jefferson is sending cargo box, boxes full of books to Madison. And Madison is not just reading, but as Hamilton might have said, imbibing that French philosophy, the, the, that Jefferson and Madison have drunk too deeply from the well of French philosophy, Hamilton once said. And Madison was doing that and he wasn't agreeing with all of it, but there was a whole group of French thinkers, especially in the 1770s, 1780s, who were developing this new theory called a theory of public opinion, the opinion publique, that public opinion is queen of the world, because there's actually this new phenomenon called the public.

Why? What makes this different in the, in the, in the history of all the world? It has to do with communication, not just the commerce of goods, but the commerce of ideas, that you can spread ideas more than just from in one assembly in ancient Greece, for example, or just one salon in Paris. But through the printed word, you can get these ideas out to a much broader audience, a much broader public that can then communicate and have an influence on the center of government. And so the, the kings and queens of France had to watch out because there was a new power in the world, and it was predicted that it would be more powerful than anything else, and it's called public opinion. And it paved the way for what Tocqueville would later talk about in terms of public opinion when by then, by the late 1820s and 1830s, it's clear that public opinion is queen of the world, and that equality is a well-known irresistible principle of modern times.

And so Madison is reading all of this, and it's, he said, Montesquieu has a glimp- had a glimpse of it, but he lived a little too early and he really didn't quite understand the ramifications of it, that more than just the institutional arrangements of government checks and balances separation of powers, all those things are important, but there's something even more important going on here, and it has to do with not just stifling unjust opinion, but actually building, educating, shaping, forming the public into one that is not only clean of the world, but deserves to be queen of the world, capable, a people.

Think of that, a people coming into their own, a people capable of governing themselves. And this had never been possible in the history of the world before. This is partly why it's so new and why Madison is so excited about the discovery, how these things can work together, because you couldn't have government by the people over a large territory before this ability to communicate through the printed word because all large governments were considered empires, and empires, as Montesquieu said, tend to be despotic. But communication, the commerce of ideas changes the face of politics, the potential for, for popular government actually being successful in the modern world.

[00:23:01] Jeffrey Rosen: Thank you so much for that. I'm just reading your article on Rousseau now, and it's so exciting to see the connection between Rousseau's conclusion, public opinion has its source in the opinion of enlightened men, where we're in some gains partisans and becomes the general conviction. And Madison's conclusions, as you say, in his national gazette essays in 1791 that enlightened journalists and literati would communicate with the public through essays like the Federalist Papers and, and other 18th century version of long Atlantic articles, and would refine public opinion so it's guided by reason rather than passion.

Greg as, as you hear Madison's theory of public opinion as, as Colleen has helped us understand it w- w- wa- was it vindicated first of all in, in Madison's era by the thoughtful debates over ramification, where people actually did read the Federalist Papers and were guide and, and were able to engage complicated arguments? And, and does it seem too optimistic today in the age of Twitter?

[00:24:03] Gregory Maggs: Well, you know it's interesting if you if you look at the commentary on the Federalist Papers at the time they were written it was very mixed. They were recognized as being very scholarly. They the Supreme Court cited them and, and Chief Justice Marshall said that there's no greater explanation of our government than you'll find there by no greater minds. And, and yet when you look at other commentary there were people who said, well, they're kind of hard to get through. They're kind of boring. They're kind of long. I really doubt anybody has been able to read and digest all of them. Some said, for educated people, they don't really add that much, and for uneducated they're just too difficult to read.

So, you know, I again I, I think it's somewhat of a mixed picture. Certainly, their views did carry a lot of weight. We, we, we created the government according to the structure that they had adopted that they had proposed when we had the debates in Congress and the first cons- in the first Congress they passed, I don't know, about 80 or 90 laws in which they set up the structure of government, and they were all influenced by these ideas that were expressed in the Federalist Papers. Whether they actually read the Federalist papers or not they were certainly influenced by those kinds of thinking.

So, you know, whether everybody was able to read the printed word and, and learn about these ideas and the possibility of communication, we don't know. Interesting one scholar wrote a very interesting paper called Publius in the Provinces, and look to see where the Federalist Papers actually penetrated. And about half the states, none of the essays were ever reprinted. And maybe some of them were mailed there. We know that Madison and Hamilton took copies of the Federalists and mailed them to Virginia and elsewhere, but communication was still very difficult at the time. One estimate is that the newspapers that published the Federalist Papers only could print about 600 copies, 'cause that's, that's, it was a daily paper. And and the daily paper just physically could print 600 copies. And that's not a lot of copies.

Now, they floated around they floated around taverns and other places where people could read them. I think people who were interested could find them. Whether there was the penetration that would be ideal I don't think there was. I mean, I again, I think it's not so much the Federalist Papers were actually read by a large number of people and influence them as opposed to just the idea that they are repository of the kinds of arguments that were circulating, and that ultimately did pers- turn out to be persuasive.

[00:26:38] Jeffrey Rosen: Colleen, the greatest challenge to Madison's definition of both faction as any group of majority or a minority animated by passion rather than reason devoted to self-interest rather than the public good w- was the rise of political parties. And of course, Madison played a central role in the rise of the, the first party, the, the Republican Democratic Party. And yet, Madison had a philosophical defense of the rise of parties that he managed to reconcile with his views about public opinion and the refining powers of reason. Tell us how Madison justified the rise of political parties that seem to clash with this definition of faction.

[00:27:16] Colleen Sheehan: Ah, that's a great question. I ha- I have to say when, when Judge Maggs was talking about some, sometimes some people thought that the Federalist Papers are a little hard to get through, a little boring. I had to laugh to myself. We've heard that in the classroom from our students once or twice, haven't we, [laughs] when we teach the Federalists. But hopefully is that they get into the text. It's a little bit like Shakespeare. It seems foreign at first, but when you see there's actually a story there about a people, and let it, let the texts come alive, because I think the Federalist Papers are a vision for America, not just about the nuts and bolts of government. That's one thing, but the nuts and bolts are there to make them, to make this machine in this country full of this dynamic people to set forth the environment that allows us to live a certain kind of life, an ethos, to be a certain kind of people.

So I, I try to, try to get the students to see that there's more there than some 18th century tough language, but I admit it's a challenge. So, so all factions are parties. They're a part, not a whole. But not all parties are factions. That is a faction by definition whether a majority or minority is adverse to the rights of others or to the permanent and aggregate interest of the community. So faction is unjust or contrary to the common good by definition.

When Madison, who is one of the founders, he and Jefferson, the founders of the first Republican Party in the United States, the Federalist Party really becomes a party in the 1790s with the rise of the Republican Party. The Republican Party makes these federalists into a party, I would say. It's the Republicans who, who it's Jefferson and Madison, right, actually think it's led by Madison in the beginning more than Jefferson. In, in the spring of 1792, Madison is talking about the Republican cause, and he finally says, okay, it's the Republican Party we're talking about. It has to be an organized opposition to what he sees as the Hamiltonian plan of government that is focused on the money men in New York city. And he says, Hamilton is trying to interpret this constitution in the way he sees fit whereas what we have to do like it or not is understand those who ratified it and abide by that fundamental opinion of the American people as they understood this document.

In other words, Madison is taking seriously from day one that who... he asks the question, who are the best keepers of the people's liberties? And his answer is the people themselves. They are not just to have confidence in their rulers, submit and obey, which he thought some of the federalists believed was the, their understanding of representative government. Madison said, no, the people have to actually be their own governors. They have to be a part. They have to participate. They have to be attached to this government, which is of their own making. And then those laws that are made, they obey.

And so it really had to do the difference between the re- this newly established Republican Party and the federalist opposition had to do with what is the role of the people themselves as Larry Kramer put it in a wonderful article, the people themselves, what is the role of the people themselves in this new republic? Is it a ghostly body politic where we talk about popular sovereignty, but in the end, it's really a few elites ruling? Well, some of the federalists thought that was really the best way to go. I mean, Reed Fisher Ames, his speech at the Massachusetts ratifying convention, and he, you know, your people, sir, your people, sir, can be a great beast. We need we need a sober second thought. We've gotta be so careful of thi- this thing we call the people.

So there was a lot of skepticism about the people. Madison had his own skepticism, and he's not in favor of fleeting passions and interests ruling in the form of factions. That's why this whole processes of what we might call deliberative republicanism, where the space and time that he sees built into the American constitutional system is there for a reason. It's there... How do we refine and enlarge the public views? Well, in newspapers, as you said, Jeff, newspapers circulate laying among the great body of the people.

And look at the newspapers that are developing in the early 1790s in all the, the major cities across the 13 states. It's between the representatives and the people going back and forth to Congress. It's within Congress within the house itself, within the Senate, between the house and Senate, between the Congress and the presidency, between the presidency and the people. So this is great amount of communication that is happening over a period of time, because it takes a while to build a coalition of the majority. And during that time, people are talking, communicating. It's a kind of Socratic method at the civic level of weeding out the the unjust and erroneous notions to build a consensus among the majority that is a more just and refined notion of the public good.

[00:33:10] Jeffrey Rosen: Thank you so much for that. Greg, what is your reaction to Madison's defense of the rise of political parties? Is it persuasively consistent with the broader philosophy that he articulated in the Federalist, or was it a self-interested effort to justify the party that he was increasingly to have?

[00:33:35] Gregory Maggs: Well, you know, I, it's tempting to say, well, it looks like Madison was hypocritical or inconsistent. He opposed factions, and then he was part of a, a, a political party. But I think, I think in fairness if you look at Federalist 10 Madison recognized that there's always going to be different political interests. There are always gonna be fractions. So for example, he said, people who own property are gonna have different interests from people who don't own property, and that's always going to be the case. And really what he was talking about was, or what his goal was, was to create a system that would weaken the power of faction. Sort of behind the veil without knowing what was going to happen, he said, you know, if we have a federal system, if we have a republic where we have representatives who have to represent large numbers of people if we have the different components of government elected at different times all of these things will weaken faction and address their bad effects.

I don't think he had any illusion that there were going to be factions or groups with different interests. But from behind the veil without knowing whether his side was gonna be the majority or some other side was gonna be the majority, he was thinking of a system that would counteract the pernicious effects of faction. Now to say that after that system got going, he got involved in a political party is not really to say that he's hypocritical. And in fact, if he had been nefarious, he would have designed a system that would have favored his interests but I don't think that he did that. I, I think he did the opposite, which was to try to create a system that would further democracy, not direct democracy, but representative democracy, which would have the have counteracting effects on faction.

So I don't, I don't view him as being inconsistent or hypocritical. In fact on the contrary, he created a system behind the veil of not knowing what was gonna happen in the future that he thought would be best for the country by weakening fraction. And even if he later got involved in a faction, he was subject to those rules that the constituency would be divided. It would be represented by large numbers of people and so forth.

[00:35:41] Jeffrey Rosen: Thanks so much for that. Colleen, are you persuaded?

[00:35:44] Colleen Sheehan: Well, I don't think I answered the question you asked me very well. So let me give another shot at that. Madison deliberately establishes the Republican Party in the United States in 1792, and Jefferson as his cohort in this. And he writes a couple of articles about this and explains himself. One is called Parties, and one is called A Candid State of Parties. And he sees the opposition, the Federalist Party as the anti-Republican party.

By this point in 1792, he's so frustrated with the Hamiltonian federalists thrust of, of government that he feels it's necessary to organize this Republican Party not, it's not in the contemporary sense of just organization to be a part to win elections. Madison sees it as putting the country on the right track on the Republican smaller Republican tract, where we're not ignoring the people out in the countryside and just letting the stop jobbers in New York control things or these enlightened statesmen, or people who think they're enlightened statesmen at the seat of government. That for this kind of Republican government to work the way he's envisioned it, requires a genuine attention by the people and participation and governing by the people, not just when you vote, not just at election time, but to be real citizens, not like the ancient Greeks, where that's all you do with your life is go to the assembly every day but to have a real meaningful part in this thing called self-government.

And so for Madison, the Republican Party he's founding is not a faction. It's the opposite. It's meant to promote republicanism against what he sees as a tendency towards anti-republicanism in the early days of the Republic to set America on a course in which we could actually... You know, they were so afraid when Washington was in office that this would fail and that we can't do it without Washington. We were not ready to walk alone, as Jefferson put it. Washington had to stay a second term because the country wasn't ready to walk alone. And it's during this period that Madison and Jefferson are founding the Republican Party to bring the Republican cause into the workings of government. And so for them, it's, it's the culmination of the founding it republicanism so that it's not factions that will rule, but a just majority that will rule.

[00:38:36] Jeffrey Rosen: Thank you very much for that. Greg I wanna put on the table the main ideas of the Federalist Papers, and there are different ways to organize them. Do you have any particular papers? We've talked about of course 10 and, and 1. And, and are there any particular ones or groups of papers that you want with the people listeners to read and learn about?

[00:39:01] Gregory Maggs: Well you, you know, I, I think it's hard to single out any. I mean, it'd be like if you gave me the Bible and said w- which books are important and which ones are not, it would be hard to, to pick one or another, but you know, what I've always found to be very interesting are the initial essays where they describe the weaknesses of the articles of the government under the Articles of Confederation and the need for a stronger union. These these are not as philosophically deep as some of the other ones. And yet, when you do read them you recognize what they were trying to accomplish was to make the system better.

And I think without fully understanding some of the weaknesses of the the Articles of Confederation and also the article, the the the ones that were comparing the government to state governments that already existed. I think it's hard to understand, you know, what, what were they specifically trying to do.

One of the things that's very interesting is that nearly every provision in the Articles of Confederation has a corelative provision in the constitution often exchanged but you can sort of map the Articles of Confederation to the constitution. There are provisions in the constitution that are nowhere found in the Articles of Confederation. But you can look very carefully at these different provisions, because they weren't starting from scratch. They were, they had a system and they were trying to persuade people to change the system. The system had flaws, but they had to identify those flaws. And I think that in many ways although they're somewhat overlooked these are some of the most important ones.

And let me just give you some of the numbers. 15 to 22 are really the ones that mostly talk about the difficulties with the Articles of Confederation. And I think it, it's kind of the background that you need to to understand why they were undertaking this project. Now, this doesn't necessarily tell you what they were trying to accomplish but it does give you the background. So I, I think 15 to 22 are a very good place to start to get an idea of why they were trying to create a new constitution. It wasn't that we didn't have a government, it was that we wanted a better one.

[00:41:08] Jeffrey Rosen: Thank you very much for that. Colleen, in your introduction with Jack Rikove to the Cambridge Companion to the Federalist, you know, two ways of organizing the Federalists, one flags the division that, that Greg just did focusing on half A, the essays concerned with making the case for the national government and, and half B, the essays focused on the exposition of the constitution itself. And then you say another approach focuses on the broader political thought and vision of each of the authors including Madison's emphasis on republican government and Hamils- Hamilton's interests in state building like commerce and foreign affairs and so forth.

So maybe tell us more about that taxonomy. But also when I asked you which papers you wanted to talk about today, you said beside 10 and 51, I think 1, 14 39, 49, 57 and 63 are especially interesting. That's so tantalizing, and you c- you can't talk about all of them, but maybe give us a sense of why you picked some of those numbers that you did.

[00:42:11] Colleen Sheehan: Well, in terms of studying the Federalist Papers I think either and both, either and both is the answer to your question there that it's, it's, it's good to, to study it the way it was originally thought to be laid out by Hamilton. Of course, it doesn't quite work out as planned because this is a work in progress, right, as they're, they're writing these papers, staying up burning the midnight oil to get it in by the deadline, to publish it in the, in the newspapers. And so sometimes the plan didn't go quite as, as, as planned to begin with. So they don't really follow Hamilton's original plan perfectly.

And it is interesting to see the different personalities coming through despite the fact that they all sign the each paper Publius as if there's one persona writing these papers. Publius speaks with one voice, but you can discover in the pages of the Federalists when you see how Hamilton and Madison will disagree and be on different sides of the party line later on, you can see the seeds of some of that in, in their essays. For example, Madison, one of the essays talks about trade, h- how it has to take its natural, agriculture and trade, it has to take its natural course.

Well, that's exactly his argument in the 1790s against Hamilton's report on manufacturers. Hamilton wants to jumpstart manufacturers. Madison says, no, trade should take its natural course. Madison was with the physiocrats then, where he would be much of a free market kind of guy. Don't get government involved in subsidizing this. And Hamilton is saying, we have to, we have to in order to compete with England. Don't you understand economics? Madison and Jefferson, you guys don't get it. So you can see some of the seeds of that in the Federalist Papers.

I think Federalist number one, when Hamilton says, you know, seems to have been reserved to the people of this country to decide the important question, whether or not societies of men are really capable of establishing good government on the basis of reflection and choice, or whether they're forever destined for their political constitutions to depend on accident and force. That one sentence, a long sentence, but if you parse it out, think about that, our choices, I mean, it's either gonna be accident and force in some form, material near another, or the possibility of establishing good government on the basis of reflection and choice. That is exactly the dichotomy put before us in book one of Plato's Republic.

[00:44:56] Jeffrey Rosen: Hmm.

[00:44:57] Colleen Sheehan: This, that's, that's exactly what's going on in the pro-am of Plato's Republic, power, is it gonna be on the basis of power or is it gonna be on the basis of persuasion? Is it gonna be ballots ultimately or bullets? And are we facing that in the United States today? We're asking ourselves that question. Can we go on? Can we talk to each other so we can persuade each other and be one people rather than resort to force? Once we resort to force, the rule of law is in danger, as Lincoln tells us in the Lyceum address, and it's a very easy slide downhill, and just some kind of chaos, anarchy and disrespect for government and disrespect for each other.

So that opening salvo of Federalist number one is more than mere words. It's more than rhetoric. It's puts before us the question of politics, which is the question for each of us as citizens. What are we going to choose? And how we act is that choice. How we act with one another is making that choice. I have to say one word about Federalist 49, it's my favorite, though I like, though I have others that, that come in close seconds but Federalists 49 is Madison's disagreement with Jefferson, and he takes him to task, and he really kind of points out, he shows us that the seeds of his theory of public opinion are in Federalist 49. But there's another thing I like about it. And Jack Rikove, if he's listening will laugh at this.

So at Montpelier, that beautiful farm that you can, Madison's home that you can walk around, there are these, these gorgeous horses there. And Jack and I were ruminating one time about these horses, if, if any of them were race horses, wouldn't you wanna name one of them ticklish experiment?

[00:46:51] Jeffrey Rosen: [inaudible 00:49:26].

[00:46:54] Colleen Sheehan: Madison says, Madison says, you know, calling a second convention, you shouldn't do that. It's a ticklish experiment. So we, we thought that if there was a race horse from Montpelier, it ought to be named ticklish experiment. Let me con- let me just conclude with my favorite passage in the Federalist Papers. It's actually from Federalist 39, which I think sums up the vision of the Federalist. The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America, with the fundamental principles of the revolution, or with the honorable determination, which animates every votary of, of freedom to rest all our political experiments on the capacity of mankind for self-government. That's the project of the Federalist, that's the challenge of the Federalist, that's our challenge still today.

[00:47:58] Jeffrey Rosen: So inspiring. Thank you so much for that. Thank you for reminding us that it all comes back to Plato and Aristotle, power and persuasion, reason and passion reflected in Federalist one. And thanks for sharing your favorites, including 49. Greg, I, I know it's very hard to pick one, but s- so, so much fun to hear which ones especially speak to you. Can you single out one or two Federalist Papers that you like especially?

[00:48:26] Gregory Maggs: Well, you know, the one that that captures the imagination as a, as a judge and as a legal scholar of constitutional laws Federalist 78. Now, as I mentioned earlier, Federalist 78, it's one of the most cited in the courts. Whether anybody actually read it at the time as I mentioned, eight states had already ratified before it was published. It was one of the last ones published. It was, wasn't first published in the newspaper. It was published in the, in the second volume of the Federalist and it was only later published in the newspapers. But it talks about the judiciary, and it says two things which both seem eminently reasonable until you think about them, and then you wonder whether they're contradictory.

One is it says that the, the courts, the judiciary is the least dangerous branch, because all they do is apply the law. They just decide the questions, and they don't have their own force or their own political will. And then in a very interesting passage, they expressly discuss judicial review, that if there are provisions that are contrary to the constitution, the courts have no choice but to enforce the constitution over the provisions. Now, this is somewhat remarkable because while there is the supremacy clause, which says that the constitution is supreme over state law, there's, there's nothing that really says what the relationship of the constitution to laws passed by Congress are. But the unmistakable implication of Federalist 78 is that they're talking about judicial review.

And those two propositions seem evident to us and, and reasonable that they're not like the president, they're not like the Congress. They, they take cases that come to them and they decide them according to law, and they're there for the least dangerous branch. And then at the same time, it says, and of course, they get to decide when there's a conflict between legislation and the constitution. And I don't think at the time they understood that that could be seen as making it perhaps one of the most dangerous branches. If not one of the most dangerous, one of the most powerful. And you know, it, it was difficult for them in their mindset to see things that would transpire later on. It doesn't make them wrong but it's very interesting.

And certainly any lawyer who's interested in judicial review and, and charges of judicial activism or arguments that there is in judicial activism should read the Federalist 78.

[00:50:43] Jeffrey Rosen: Thank you so much for that. So great to read Federalist 78 and also to hear [inaudible 00:53:36] recommendation of Federalist 49. Well, it is time for closing arguments in this wonderful discussion of the Federalist Papers on Constitution Day. Your homework with the people listeners is, is obvious read the Federalist Papers. And if you find you have a favorite, write to me and tell me what it is and why, [email protected] And in order to inspire you to do that homework, I'm gonna ask for closing statements from Professor Sheehan and Judge Maggs. Colleen, the first one is to you, why should We the People listeners read the Federalist Papers on Constitution Day, and why are the Federalist Papers important?

[00:51:29] Colleen Sheehan: We the people would find it in our interest, if not for the purpose of simply of edification and amazement to read the Federalist, I think, because we don't depend on others to govern us. We have the responsibility to govern ourselves. And as Madison once put it, liberty and learning lean on each other. You can't have liberty without learning for free people. Otherwise, he says it's a prologue to a farce or a tragedy, or perhaps both. Well, I don't want either of those things to be the end of the American story. So one of the places that we can educate ourselves in both our rights and our responsibilities as citizens is by reading the Federalist. I think Jefferson's right, it's the best commentary on the principles of government that ever was written.

Let me just say one word about Constitution Day in 1787. I went back and looked at the weather map that day. It was a gloomy day in Philadelphia, September 17th, 1787. It was overcast. And you can just imagine the men in what we today call leggings, all these men walking around Independence Hall in leggings walking up to Washington's desk and putting their signature on that parchment. And then afterwards, they adjourned, e- except, I don't know if Elbridge Gary, Edmund Rudolf, and George Mason went with them, maybe to, probably to the city tavern over on, on, on second street, and they celebrated. But as, as Ben Franklin said, yes, it's a republic if we can keep it. I think there's never been a time more than today that that question is real for us. It was certainly the case in 1860, but it's again, the case in 2021. Do we wanna keep it? Are we willing to do the work to keep it? I think it's something that we as Americans have to give them a serious thought to. And Constitution is a good day to spend a little time thinking about that.

[00:53:48] Jeffrey Rosen: Thank you very much for that. Greg, the last words are to you. Why should We the People listeners read the Federalist Papers on Constitution Day, and why are they important?

[00:53:59] Gregory Maggs: You know, in in the 1820s Chief Justice Marshall in the case of Cohens v. Virginia said this about the Federalist Papers, it is a complete commentary on our constitution, and it is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part of two of its members, and he was speaking about Hamilton and Madison, performed in the framing of the constitution put it very much in their power to explain the views with which it was framed. The Federalist Papers are not the final word. They are not a perfect source of the original meaning of the constitution. And yet, I think it's almost impossible to get ahold of the original meaning without at least considering what the Federalist Papers have to offer.

And I think if you're interested in the constitution, if you're interested in what they, the framers intended to accomplish, the ratifiers wanted I think you have to include the Federalist Papers in your study.

[00:54:58] Jeffrey Rosen: Thank you so much, Colleen Sheehan and Judge Gregory Maggs for a wonderful discussion of the Federalist Papers, the philosophy that inspired them, and the reasons for reading them today. Thank you We the People listeners for reading the Federalist Papers, and if you find a favorite, let me know. Colleen, Greg, thank you so much for joining, and happy Constitution Day.

[00:55:24] Gregory Maggs: Happy Constitution Day.

[00:55:26] Colleen Sheehan: Thank you very much. Happy Constitution Day, September 17th.

[00:55:31] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Sam Desai, John Guerra and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple, and recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional illumination and debate. And always remember that the National Constitution Center is a private nonprofit. Thanks so much to those of you who have been sending in donations of any amounts, $5, $10 to show your support for the mission. In honor of Constitution Day, it would be so great if you would go online and make a donation as a sign of your support. You can do that by becoming a member at constitutioncenter.org/membership, or give a donation of any amount at constitutioncenter.org/donate. On behalf of the National Constitution Center. I'm Jeffrey Rosen, and happy Constitution Day.

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