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American Legal Institutions

Recent Scholarship

Edited by Eric Rise

A Series from LFB Scholarly

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The Federalists Vision of Popular

Sovereignty in the New American

Kathleen O. Potter

LFB Scholarly Publishing LLC

New York 2002

Copyright 2002 by LFB Scholarly Publishing LLC

All rights reserved.
Library of Congress Cataloging-in-Publication Data
Potter, Kathleen O.
The Federalist's vision of popular sovereignty in the new American
republic / Kathleen O. Potter.
p. cm. -- (American legal institutions)
Includes bibliographical references and index.
ISBN 1-931202-44-3 (alk. paper)
1. Federalist. I. Title. II. Series.
JK155 .P67 2002


ISBN 1-931202-44-3
Printed on acid-free 250-year-life paper.
Manufactured in the United States of America.

For Chris, Anne, and Alison

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Table of Contents

Acknowledgments................................................................... xi
Introduction ........................................................................... 1
PRINCIPLES...................................................................... 5
AUTHORSHIP.................................................................... 7
POLITICAL THEORY.......................................................... 8
SOVEREIGNTY................................................................ 11
Chapter One: Popular Sovereignty.......................................... 15
POPULAR SOVEREIGNTY................................................ 17
SOVEREIGNTY................................................................ 20
SUMMARY...................................................................... 27
Chapter Two: Becoming A People........................................ 29
WE THE PEOPLE........................................................... 30
BIND............................................................................... 31
THE BOND OF SELF-PRESERVATION.............................. 34
CHOICE........................................................................... 37
A ROLE FOR ACCIDENT (FORTUNA)? .............................. 38
SUMMARY...................................................................... 39



Chapter Three: A Popular Founding ...................................... 41

INTRODUCTION .............................................................. 41
A CONSTITUTION AS HIGHER LAW................................. 43
A MISSION FOR MANKIND.............................................. 44
AN ASSUMPTION OF VIRTUE.......................................... 48
THE NECESSITY OF THE CASE ....................................... 49
SUMMARY...................................................................... 59
Chapter Four: A Continuing Compact .................................... 61
Deliberation, Not Populism................................................ 63
The Justification for a Quiet Revolution ............................... 64
The Role of the Convention ............................................... 69
The Long-Term Solution: Alteration, Not Revolution............. 71
PUBLIUS VIEW OF HUMAN NATURE.............................. 71
REPUBLICAN PRINCIPLES.............................................. 73
The Advantages of a Republic Over a Democracy ................... 74
The Advantages of a Large Republic .................................... 76
A Wholly Popular Republic............................................. 77
The Deliberate Sense of the Community ............................ 80
Popular Expression in a Federal System ............................... 85
SUMMARY...................................................................... 86
Chapter Five: A Role for Future Generations ........................... 89
THE FORMAL AMENDMENT PROCEDURE ...................... 90
The Sovereigns Role in Amending the Constitution .............. 92
Amendment as a Reflection of the Federal System.................. 94
Amending the Constitution: Not Too Easy, Not Too Difficult.. 95
The Flexible Allocation of Concurrent Powers....................... 99
Prescribed Constitutional Formulae ....................................100
The Flexible Application of Delegated Powers......................103
Direct Grant of Organizational Power to Congress .................105
Chapter Six: In Support of the Continuing Compact...............109
THE WHOLLY POPULAR REPUBLIC ............................109



Federalism in a Wholly Popular Government.....................112

Suffrage in the Wholly Popular Republic ..........................114
Are Two-Year Terms Too Long? ........................................120
Is the House Too Small to Represent the People?..................122
THE SENATE: INDIRECTLY ELECTED.............................126
THE PRESIDENT: INDIRECTLY ELECTED .......................127
Why the President is Unlike a King....................................129
POPULAR SOVEREIGNTY? .............................................131
Chapter Seven: Virtue in the American Republic.....................139
SUPPORT OF VIRTUE.....................................................141
TWO SOURCES OF VIRTUE............................................145
VIRTUOUS LEADERS .....................................................147
Fit Characters...............................................................147
Political Wisdom ............................................................148
CIVIC VIRTUE................................................................151
Civic Virtue: The Public Sort............................................151
Civic Virtue: The Private Sort ...........................................153
Popular Sovereignty, the Constitution, and the Court ............161
Popular Sovereignty in a Federal System of Government........166
Deliberative Democracy ....................................................171
WHERE DO WE GO FROM HERE? ...................................173
Bibliography .......................................................................195
Index ..................................................................................201

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This book started as a doctoral dissertation for the department of

political science at the University of Houston. While there, I was
privileged to study with Donald S. Lutz who not only encouraged me
in my pursuits but whose work in American political theory has
profoundly influenced my own. I am also grateful to other members of
my dissertation committee Ross M. Lence, John T. Scott, and
Gregory R. Weiher for their probing questions and advice. I want to
thank the Liberty Fund Foundation, whose colloquiums have given me
the unique opportunity to discuss historical documents and classical
texts with scholars of my own and other disciplines.
discussions have influenced this project in subtle but important ways.
I am particularly indebted to Jenifer Gile who graciously agreed to
review the entire manuscript.
Her editorial contributions have
significantly improved the final product. Special thanks to my
husband, Chris, and daughters, Anne and Alison, who made it all


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We the People of the United States . . . do ordain and

establish this Constitution for the United States of America.

Popular sovereignty is the core principle of American

constitutionalism. Almost every American knows that our republic
was designed to be of, by, and for the people and that WE THE
PEOPLE hold the ultimate authority and responsibility for that
republic. Or do we?
The concept of popular sovereignty, as it relates to the U. S.
constitutional system, is not fully explained in American government
textbooks, nor is it adequately explored in the academic literature.
Indeed, an influential genus of scholarship challenges, on various
grounds, the very idea that the American republic was founded on
popular principles. For example, Beard (1913) questions the motives
of the framers; Dahl (1955) claims that the constitutional design lacks
broad-based representation; Schattschneider ([1960]1975) charges that
the Constitution has a conservative and elitist orientation; and Laswell
(1936) faults the system not on its processes but on policy outcomes.
The pervasive, though not exclusive, view of political scientists is that
the constitutional grounds of popular government in America are more
myth than reality. This perspective, suggesting that both the framers
and the constitution they drafted are either anti-democratic or not
democratic enough, is illustrated by a passage from a recent U. S.
government textbook:
Although America is often said to be one of the most
democratic societies in the world, the Constitution itself is
rarely described as democratic. This is hardly surprising,
considering the pol itical phi losophies of the men who
wrote it.1

The Federalists Vision of Popular Sovereignty

This portrayal of the founding, while technically accurate, is also

misleading. Language is imprecise and, in this case, especially so. The
meaning of the term democracy has evolved over the last two
hundred years. For the founding generation, democracy described a
particular type of regime, consisting of a small number of citizens,
who assemble and administer the Government in person (Federalist
No. 10), while today the term applies to a variety of large,
representative forms of government as well. So, when spokesmen for
that earlier era denounce democracy, they do so in the particular, not
the general, sense. Moreover, because they were involved in the
construction of what they hoped would be an enduring government,
their discussions of various options were candid and addressed not only
the principled basis of the prospective government but also the dangers
inherent in various designs. Furthermore, it seems that the framers of
the Constitution possessed a better understanding than their twentieth
century critics of the numerous opportunities for political participation
and the accompanying demands placed on citizens in a federal republic.
Although an unfavorable tinge to the founding lingers among
some political scientists, the tide may be changing due to a profusion
of scholarship by political theorists and historians during the last third
of the twentieth century that has dramatically expanded our knowledge
of the founders, founding theory, and its precursors. This scholarship
approaches the founding from a variety of perspectives, and it provides
some important insights into first principles and into the operation of
the American polity today. For example, Diamond ([circa 1965]1992)
and Epstein (1984) point out that the authors of The Federalist
considered the mixed regime the standard model of a republic,
where a democratic element is combined with monarchical and/or
aristocratic parts, for theorists from Aristotle to Montesquieu not to
be democratic enough for America. Lutz (1988) traces the origins of
American constitutionalism and the principle of popular sovereignty
back to the Mayflower Compact, which predates the works of Hobbes
and Locke. Ericson (1993) demonstrates how key debates in American
history signal changes in the direction of American democratic theory.
Lowi ([1969]1979) illustrates how modifications in theoretical
perspective are accompanied by changes in the democratic process


itself. Macedo (1990) and Pitkin ([1967]1972) explain why American

liberalism, as originally conceived, is based on a deliberative (positivesum) model of democracy rather than the competitive (zero-sum)
version frequently used to describe American pluralism today.2
Much of this recent scholarship on the founding deals with some
aspect of the principle of popular sovereignty, yet none provides a
systematic analysis of the principle as it is expressed in the federal
constitution. That is the goal of this project to explore how the
framers envisioned the role of WE THE PEOPLE in the American
constitutional system. My intent is not to defend the framers or any
particular view of the Constitution, but rather to reconstruct and
explicate one aspect of founding theory and to let the chips fall where
they may.
This project, unlike the constitution it examines, is as much the
product of accident as of choice. I turned to The Federalist to seek
clarification of the fundamental principles of the American founding.
The Federalist was an obvious choice for this endeavor because of its
close ties to the constitutional ratification process and its status as a
classic in American political theory. Previous scholarship relating to
The Federalist either did not address the question of fundamental
principles or did so only partially.
I undertook an analysis of the text with only the most general
guideline in mind: to discover as much as possible about founding
principles. Since I was investigating an eighteenth century perspective
on such principles, I set aside contemporary scholarship and, as far as I
could, a twentieth century viewpoint. Thus, at the beginning, I was
not even certain which principles would emerge as the dominant ones.
The research involved a careful reading of each of the papers in the
order in which they were written and the taking of copious notes. The
next step, which involved review and organization of the notes,
revealed that the major themes woven throughout The Federalist
corresponded to the principles outlined in the Preamble to the
Constitution. Indeed, I discovered that the two works operate in

The Federalists Vision of Popular Sovereignty

tandem; The Federalist explicates and amplifies the founding

principles that are summarized so succinctly in the Preamble. These
principles include:
Popular Sovereignty: We the people . . . do ordain and establish this
constitution for the United States of America.
Progressivism: in Order to form a more perfect Union
Constitutionalism: to establish Justice, insure domestic Tranquility,
provide for the common defense, promote the general Welfare
Liberty: secure the Blessings of Liberty
Continuity: to ourselves and our Posterity . . .
While these principles serve as the basis for the founding, they are
neither the product of the founding nor a creation of the Federalists.
The Preamble to the Constitution is actually a shortened version of the
preambles of many of the state constitutions that existed at the time.
Thus, the founding principles predate the Constitution and represent
the set of political values shared by a broad spectrum of late eighteenth
century American society. The reason that these principles provide the
unifying themes within The Federalist is that the authors of these
essays must have realized that prospects for ratification would be
greatly enhanced by presenting the sometimes novel propositions
outlined in the Constitution within a familiar and accepted
philosophical framework. Moreover, they probably assumed that these
principles would be as ingrained in future generations as they were in
their own and, therefore, would serve as their link to posterity.
My original plan for this book was to address all of the founding
principles, assigning a chapter to each one. However, it soon became
apparent that there was more than enough information to devote an
entire volume to the subject of popular sovereignty and good reason to
give detailed attention to this principle. An analysis of the other
principles will come later. Nonetheless, this volume includes all the
necessary groundwork for an examination of all of the founding
principles listed above.



Before proceeding further, it is necessary to explain some important
distinctions understood by the founding generation but perhaps not by
Political principles come in two varieties: (1) foundation
principles of a society and (2) operational principles that relate to the
government of that society. The foundation (or core) principles are
outlined in the Preamble to the Constitution and are fundamental in
two ways. First, they represent beginnings in the sense that they
define the political reasons that the people(s) of the American states had
come together to form a national community in the first place.
Second, they represent the goals (ends) to which that community
aspires. In other words, these are the principles of unification, without
which there would be no community to govern.
The second variety consists of operational principles the
instruments (or means) that enable the government to reflect and pursue
the goals of the community. The operational principles are not
specifically defined but are implicit in the provisions contained in the
body of the Constitution. The task of The Federalist is to convince
readers that the operational principles, combined as they are in the
proposed constitution, offer the best tools (means) possible for
obtaining the goals (ends) set forth in the Preamble.4
A close reading of the papers reveals the important distinction the
framers make between these types of principles. In fact, two of the
Federalist essays suggest that the operational principles are expendable,
that any of them including federalism, separation of powers, checks,
balances, and the Constitution itself should be abandoned if the
principles or the Constitution were shown to undermine their reason for
being. In Number 43 Madison explains that the safety and happiness
of society are the objects at which all political institutions aim, and to
which all such institutions must be sacrificed (228). He elaborates
further in Number 45, remarking, Is it too early for politicians to
presume on our forgetting that the public good, the real welfare of the
great body of the people is the supreme object to be pursued; and that
no form of Government whatever, has any other value, than as it may
be fitted for the attainment of this object (235).
In other words, the safety and happiness of society which
encompass principles in the Preamble, such as, justice, liberty, and the

The Federalists Vision of Popular Sovereignty

sovereignty of the people have primacy. Federalism, checks,

balances, separation of powers, and the like were as yet unproven
instruments with which the political community hoped to achieve these
goals. Nevertheless, The Federalist is a testament to the belief that the
operational principles in the Constitution would work, at least well
enough to sustain a government capable of achieving the goals set forth
in the Preamble.
Over the years the distinction between the two types of principles
has become muted, possibly because The Federalist makes such a
strong case for the Constitution. Or perhaps it is because the Preamble
has no legal standing that scholarly attention has focused instead on the
operational principles contained in the body of the Constitution.
Regardless, over the years the Preamble has come to be viewed as
rhetorical finery: its words are often recited but their meanings are
seldom probed. Thus, in the American polity, foundational principles,
while not exactly diminished over the years, have come to be viewed
by the citizenry as vague abstractions. At the same time, the
operational principles have become closely associated with the
founding. To an important extent, then, the means have been
transformed into ends over time and are now included in the mix of
values that unify the American people.
Since this inquiry looks to the past for an explication of original
founding principles, the distinction between the two types of principles
is a crucial one. This analysis concentrates on those principles
summarized in the Preamble, in particular popular sovereignty. The
principles contained in the actual body of the Constitution, while
important, are relegated to a secondary role here. Before going further,
however, it is important to raise a cautionary flag. While the founding
principles outlined in the Preamble were generally shared by Americans
of the founding generation, we view them here from the perspective
provided by the Federalist essays. These essays may not paint a totally
accurate or complete portrait of the founding era. Because The
Federalist has become an American classic, its authors may have had
some role in transforming American values, by adopting the language
of shared principles but subtly altering its meaning.



All of the papers in The Federalist are signed with the pseudonym
Publius, but three prominent Americans actually penned the essays.
Alexander Hamilton was the mastermind behind the Federalist project
and is credited with writing fifty-one essays. Hamilton, a New York
lawyer, organized and directed the undertaking a series of newspaper
essays addressed to the people of New York, laying out the reasons
why they should support ratification of the new constitution.
York was a key state and there was considerable sentiment there against
ratification. Hamilton was well-placed to address the concerns of his
fellow citizens. James Madison is credited with twenty-nine of the
essays, among them the famous Numbers 10 and 51. Madison, from
Virginia, another key state, was a valuable addition to the Publius team
because of his extensive study of democratic regimes in preparation for
the constitutional convention and his diligent note-taking at the
convention. His careful preparation and attentiveness to detail provided
him with a nuanced understanding of all the controversial issues. John
Jay, also a New Yorker, was the oldest and most renowned member of
the team, but his contributions were limited to five essays because he
was incapacitated during much of the period in which they were
Some scholars contend that because Madison and Hamilton had
such different worldviews, The Federalist presents a bifurcated view of
the theory that undergirds the Constitution.6 I disagree. Although
there is some evidence of differences between the two mens
perspectives (and personalities) in the papers, on the subject of
fundamental principles, the two views are remarkably similar. After
all, Hamilton and Madison collaborated on the project and were
together in New York when most of the papers were written. The fact
that the authorship of several important papers was contested until well
into the twentieth century also seems to indicate that the positions
expressed by the two men are not easily distinguishable.7 Moreover,
the papers were written under the guise of a penname. The veil of
Publius provided cover, behind which the two men could shed their

The Federalists Vision of Popular Sovereignty

personal differences and put forth a coherent argument for ratification of

the Constitution.
As Clinton Rossiter points out, Hamilton, in
particular, was hardly the enthusiast for the Constitution that he
appears to be in these pages (1961, xv). Likewise, Madison, far from
being the author of the Constitution, was on the losing side on forty of
the seventy-one specific proposals that he moved, seconded, or spoke
unequivocally in regard to (McDonald 1985, 209).8
In the discussion that follows, I deliberately refer to Publius as the
author of the papers, because I believe this fiction best represents the
collaborative spirit in which they were written. For the readers
convenience, however, I include both the number of the paper and the
initial of the author in the citations. Furthermore, I cite passages from
both authors, where possible, to illustrate the consistency of
perspective between them on fundamental principles.
Publius proves to be an able advocate for the Constitution,
precisely because he comprises a team whose members possess
complementary strengths and a common purpose. Furthermore, his
approach to the task of advocacy for the Constitution that is, framing
the issues in terms of shared values and his thoroughness in
addressing a rather broad range of criticisms suggest that his intention
is to articulate a vision of the Constitution, in particular, and of
American political philosophy, in general, that would serve as the basis
of a consensus for Americans of his generation and generations to
Publius works on two levels. The Federalist contains both a practical
and a theoretical argument. On its face, this is a practical work about
real people and a real government and, therefore, is theoretically
imperfect. Publius acknowledges that the Constitution itself contains
flaws, that certain of its provisions are novel, and that a number of
provisions are experimental because there are no positive models from
history to imitate.12 However, the members of the Publius team speak
from personal experience when they advise their readers that the


decision on ratification should be based not on imperfections of

particular provisions, but on the document as a whole.13
Also, because The Federalist describes real politics, Publius does
not develop all of the theoretical implications of his arguments. It
deals with a real founding rather than an imagined one; therefore, some
politically necessary inconsistencies and ambiguities exist. Publius
addresses some of these inconsistencies but does not emphasize them.14
At times he even makes virtues out of the ambiguities.15 The goal of
The Federalist is not to win the contest of particulars but to direct the
attention of actual or potential critics of the Constitution away from
individual provisions and toward the larger picture. As Publius
The truth is that the general GENIUS of a government is all
that can be substantially relied upon for permanent effects.
Particular provisions, though not altogether useless, have far
less virtue and efficacy than are commonly ascribed to them;
and the want of them will never be with men of sound
discernment a decisive objection to any plan which exhibits
the leading characters of a good government. (83H:438)
Publius never engages in a debate about fundamental principles.16
Instead, he uses them as the foundation of both his practical and
theoretical arguments. Although The Federalist has a practical
political purpose, the distinctly American political philosophy that
emerges is unlikely to be an accident. Clearly, all three members of
the Publius team realize that they occupy a unique place in history.
Hamilton, Madison, and Jay recognize the importance of the activities
surrounding the writing and ratification of the Constitution; therefore,
it follows that they comprehend the potential historic value of these
papers as well.17
Even if the members of the Publius team did not consider this
broader goal at the outset of the project, its possibility must have
occurred to them at an early stage, as interest in the papers expanded
beyond the New York audience for whom they were originally
intended.18 The organization of the papers and the probing of important
principles within them also suggest a broader purpose. Surely, the


The Federalists Vision of Popular Sovereignty

numerous references to the future and to posterity in the essays indicate

that the Publius team understood the importance of making a
connection to future generations.19 One final point: Publius appeal to
passion as well as reason, rather than providing evidence of the
transitory nature of his project, reflects an understanding that both are
intrinsic to human nature and, therefore, to politics.
Publius uses shared fundamental principles to paint an attractive
vision of the proposed new American republic. He knows that a major
barrier to ratification of the Constitution is a general wariness among
the American people of investing any real power in a national
government. This apprehension stems from both philosophical and
practical concerns. The philosophical issues relate to eighteenth
century perceptions of democracy.
Philosophers from Plato to
Rousseau have assumed that republics would be small. Smallness was
thought necessary for the people to participate in their government, or
at least to oversee those to whom they entrusted power. Furthermore,
smallness contributed to the homogeneity that was considered essential
for stability.
Distrust of remote government, grounded in experience, is another
issue with which Publius has to contend. Critics of the proposed
constitution were mindful of recent American colonial experience with
an intrusive British government and were understandably protective of
their newly affirmed liberty. They were concerned about conferring
such large powers . . . upon the national government; because the seat
of government must of necessity be too remote from many of the
states to allow for adequate popular oversight (84H:445). Publius
remarks that an overreaction to such concerns is the great source of the
inconveniences of the current government, which the proposed
constitution is designed to rectify (26H:131).
In responding to critics of bigness and remoteness, Publius
packages his argument in a framework of shared principles. In
Numbers 2 through 14, he demonstrates why an extensive republic
advances these principles. Bigger is better, he claims, because a large
republic offers the people within its boundaries a more peaceful and
secure life (insure domestic Tranquility and provide for the common
defense), the potential for a more competent, just, and stable



government (establish a more perfect Union and establish Justice

for ourselves and our Posterity), the opportunity for greater economic
prosperity (promote the general Welfare), and, as a result, a better
chance of preserving liberty than the alternative of either several small
republics or a confederation. The essence of Publius argument in this
first set of papers is that an extensive and properly structured republic
is the handmaiden to liberty. In constructing this argument, Publius
is no stranger to irony, though. On the one hand, his support of
bigness represents an assault on the conventional wisdom of the day.
On the other, he uses commonly held values as the basis for
demonstrating the benefits of bigness.
In the remaining seventy-one essays, Publius continues to defend
the efficacy of the Constitution by framing his position within the
context of shared goals. For example, in papers 15 through 22, he uses
popular sovereignty as the organizing principle. Publius asserts that the
government under the articles of confederation is weak and ineffectual
precisely because it lacks a direct connection with the people. In
Numbers 23 though 36, he contends that the proposed constitution will
produce a more perfect union because it reflects new advances in the
science of politics including federalism and a limited government.
Throughout the papers he defends various provisions of the proposed
constitution by demonstrating that they reflect or support popular
sovereignty, a more perfect union, justice, peace and safety, the
general welfare, liberty, and/or stability.
Although the shared principles may need no further explanation to
his contemporaries, Publius, nevertheless, discusses some of them in
detail. He pays special attention to the role envisioned for the people
in the proposed new federal system, and in doing so he gives substance
to the principle that we refer to today as popular sovereignty.
In the most general terms, popular sovereignty means that the
legitimacy of a government depends on the consent of the people.
Although Publius does not neatly lay out his theory of popular


The Federalists Vision of Popular Sovereignty

sovereignty in a particular essay or series of essays, he does treat the

subject in sufficient detail to allow the interested reader to reconstruct a
coherent rendering of that theory. However, because the theoretical
elements are scattered throughout The Federalist, it is necessary to
create a structure in order to present Publius conception of popular
sovereignty in a logical manner. Thus, while the theory presented in
this book is his, the categories used to present it are mine. I believe
that these categories illuminate rather than distort his theory, and are
useful for revealing the contributions that The Federalist makes to a
better understanding of the principle of popular sovereignty and of
consent theory generally.
The Federalist has not been examined heretofore for its
contributions to consent theory. As it turns out, such an analysis is an
important by-product of this investigation into popular sovereignty.
Because the concept of popular sovereignty is so inextricably linked to
the notion of the social compact, an inquiry into the former can hardly
ignore the latter. That the framers of the Constitution would view the
ratification process within the context of consent theory is hardly
surprising, given the importance of compacts to the early American
colonists and, later, the strong affinity that many advocates of
independence felt for John Locke. What is fascinating, however, is the
discovery that Publius offers a more robust version of the social
compact than those presented in the widely read seventeenth and
eighteenth century treatises of the European natural rights theorists.
The following analysis shows how Publius presents the
Constitution as a social compact that embraces a new and stronger form
of popular sovereignty. This analysis is directed by the four elements
of Publius consent theory that differentiate his view of popular
sovereignty from that of his predecessors: (1) the nature of the ties that
bind civil society, (2) the reality of a popular founding, (3) the
continuing nature of the social compact, and (4) the requirement for
virtue. These elements provide the basic structure for this book, with
one or more chapters devoted to each.
Chapter One sets the stage for those that follow. The discussion
focuses on the modern origins of the principle of popular sovereignty
and traces the development of this principle from the Renaissance up



until the time that Publius undertakes the Federalist essays. This
overview suggests two perspectives from which to consider the
American founding. From a historical (and theoretical) standpoint, the
American founding represents a radical shift toward the popular model
of government. However, viewed though the lens of American
experience, the founding process and the Constitution itself seem like
logical, even modest, steps in the evolution of American
republicanism. Proceeding through the ensuing chapters, we discover
how Publius discussion of the proposed constitution embraces both
points of view.
Chapter Two explores the ways in which Publius adds complexity
to the first stage of the social compact (the creation of civil society) and
the implications of that complexity. Chapter Three illustrates how
Publius presents the ratification procedure for the Constitution as the
first test of social compact theory, one that potentially leads to the first
popular founding in history. Chapter Four examines how Publius
theory alters the nature of the social compact by transforming it from a
static model to a dynamic and progressive one. Chapters Five and Six
are extensions of this chapter and explore the various constitutional
provisions that support the dynamic and progressive compact. Publius
finds an important role for virtue in the social compact, and Chapter
Seven analyzes his conception of virtue in the American Republic. The
concluding chapter provides food for thought by applying Publius
view of popular sovereignty and the social compact to the world of the
twenty-first century.

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Popular Sovereignty
An Overview

By the end of the eighteenth century, when Publius wrote the

Federalist essays, the notion of popular sovereignty was generally
understood and broadly accepted in America, but the principle was as
yet unnamed.1 The expression popular sovereignty does not appear
in The Federalist or in the seventeenth and eighteenth century treatises
of the natural rights theorists who explore the notion in detail. In this
study, the term popular sovereignty encompasses an array of
variations on the theme that the legitimacy of government depends on
the consent of the people.
This chapter provides the background necessary for analyzing
Publius treatment of the principle of popular sovereignty, exploring
the origin and development of the principle up until the time of the
Constitutional Convention of 1787. This approach serves two
objectives: (1) to furnish a frame of reference for determining how the
notion of popular sovereignty was generally understood during the
founding era; and (2) to provide a benchmark from which to evaluate
Publius contribution to the further development of the principle.
The seeds of popular sovereignty can be traced back to the time of the
ancients and probably before, but because this study is primarily
concerned with a modern application of the principle, we will pick up
the investigation at the time of the Renaissance. During the sixteenth


The Federalists Vision of Popular Sovereignty

and seventeenth centuries, as the western world entered into the

modern age, there was tremendous intellectual activity, most of which
was centered in monasteries or was associated with the church. It
should not be surprising, then, that the original grounding for popular
sovereignty was religious.
It was not until the mid-seventeenth
century that natural rights theorists such as Thomas Hobbes (1650),
Bernard [Baruch] de Spinoza (1670), Algernon Sidney (1690), and
John Locke (1690) secularized the basis for this principle.
In his forthcoming book, Popular Sovereignty, Separation of
Powers, and the Principles of Constitutional Design, Donald Lutz
traces the development of the broader notion of sovereignty through the
ages. He identifies four elements essential to the modern conception of
sovereignty: consent, unity, ultimate (earthly) power, and limits. As
we shall see, the rearrangement of the hierarchy of these elements
allows the general notion of sovereignty to evolve over time into the
more particular notion of popular sovereignty. Lutz considers Bodins
Six Bookes of a Commonweale (1576) to be the first systematic
analysis of sovereignty in western political thought and suggests that
Bodin offers an embryonic version of popular sovereignty as well.
God, the ultimate sovereign in Bodins system, bestows earthly
sovereignty in a king (most likely), the aristocracy, or the people (least
likely) and establishes the condition that the power accompanying that
sovereignty be used only for the common good. His formulation of
sovereignty is summarized in the following schematic:
god king or god aristocracy or god the people
if and only if power common good
During the same period that Bodin was engaged in his analysis,
nascent manifestations of the notion of popular sovereignty also
appeared elsewhere, in the works of the Frenchman Philippe du PlessisMornay (1579), the Spanish Jesuit Suarez (1603), and the Italian Jesuit
Bellarmine (1610). As it turns out, the Protestant Reformation and its
revival of biblical covenant tradition acted as the catalyst for the
treatises of these Catholic churchmen. Lutz credits Mornay with being
the first modern scholar to apply covenant theology to political

Popular Sovereignty: An Overview


arrangements.2 Mornays formulation of sovereignty is similar to

Bodins in that god is the source of sovereignty, but it differs from
Bodins in two important respects. In Mornays scheme: (1) god does
not choose the earthly sovereign directly but delegates this task to the
people who act as his agents; and (2) the earthly sovereign is assumed
to be a king. By including a definite role for the people, Mornay
strengthens the element of consent, which was only present in Bodins
scheme in the rare case that god appointed a popular sovereign. This
new formulation of sovereignty is represented as:
god people king
Although this formulation does not allow for a popular earthly
sovereign as such, the delegation of the selection of the sovereign to
the people, in what might be considered a temporary sovereignty,
makes clear the relationship between them and the sovereign, thus
establishing the rationale for limits. The fact that the people select the
king means that he is their agent and is bound, therefore, to act in the
peoples interests, not his own.
Both Bodins and Mornays
formulations of sovereignty include all four elements of sovereignty,
but the manner in which Mornays scheme handles consent and limits
moves it closer to the conception of popular sovereignty as we know it.
These religiously grounded versions of sovereignty were later
secularized by natural rights theorists, who based their versions of
popular sovereignty on the laws of nature rather than on gods law.
Thomas Hobbes, in his treatise Leviathan (1651), is generally
recognized as the first of these theorists to use the device of a social
compact as the basis for sovereignty.
Hobbes formulation of
sovereignty leaves god out of the equation entirely:
people king or people elected assembly


The Federalists Vision of Popular Sovereignty

Hobbes believes that consent provides a sturdier foundation for

sovereignty than divine right (the notion that kingly powers are
bestowed by god). His logic is that sovereignty based on the voluntary
actions of all men is more durable than sovereignty that is divined,
because the latter is subject to different interpretations of who and what
reveal gods will and is vulnerable to manipulation by those
contending for political power.
Unlike his predecessors, Hobbes builds his theory from the bottom
up rather than from the top down. He starts with the individual in an
imagined pre-political state of nature, where all men are free and equal
(at least more equal than unequal). This state of perfect equality and
liberty eventually wreaks havoc because there is no superior authority
to institute peace and order. Hobbes describes the life of man in the
state of nature as solitary, poore, nasty, brutish, and short.
Motivated by fear, men in this condition willingly conferre all their
power and strength upon one Man or upon one Assembly of men, that
may reduce all their Wills, by plurality of voices, unto one Will, thus
creating a common-wealth (Chapter 17).
Hobbes continues in
Chapter 18:
A Common-wealth is said to be Instituted, when a Multitude
of men do Agree, and Covenant, every one, with every one,
that to whatsoever Man, or Assembly of Men, shall be given
by the major part, the Right to Present the Person of them all,
(that is to say, to be their Representative;) every one, as well
he that Voted for it, as he that Voted against it, shall
Authorize all the Actions and Judgments, of that Man, or
Assembly of men, in the same manner, as if they were his
own, to the end, to live peaceably amongst themselves, and be
protected against other men.
Although the act that creates the commonwealth may be construed as a
singular one, that act involves two decisions: (1) a unanimous decision
(actually an agreement of each man with every other man) to abide by
(2) the majoritys decision as to who will be sovereign. Hobbes uses a
human metaphor to describe his compact. The compact represents a
body of people unified with the sovereign as the head. Like the human

Popular Sovereignty: An Overview


body, if this one loses its head, it dies, and the subjects of the
commonwealth revert back to their natural condition.
Hobbes ideal commonwealth would be a monarchy, but under his
theory it could just as easily be an aristocracy, oligarchy, or democracy.
The grounds of the compact define the limits in Hobbes formulation
of sovereignty; even in its most restrictive case, the Obligation of the
members may [be extinguished] when there is no farther protection of
the Subjects in their loyalty.3 Hobbes strengthens the notion of
popular sovereignty in three ways: (1) consent of the people becomes
the sole basis for the creation of a sovereign; (2) the possibility of the
creation of a popular sovereign is reintroduced; and (3) the people retain
some small vestige of sovereignty due to the conditions of the
Once the divine role in the establishment of sovereignty is
undermined and consent is recognized as the only legitimate founding
principle, the people ultimately become sovereign. It is the reach of
this sovereignty that characterizes the differing versions of popular
sovereignty offered by various theorists. Following Hobbes, other
theorists refine and expand the notion of popular sovereignty. Of
these, the most relevant to the American experience is John Locke, who
was widely read and greatly admired by the colonists. Lockes Two
Treatises on Government (1690) appeared on the scene about forty
years after Hobbes Leviathan. While Locke never explicitly uses the
terms sovereign or sovereignty, he does speak of the supreme
power of the people, which many theorists, including myself, consider
to be equivalent.4 Like Hobbes, Locke grounds sovereignty in the
compact. But for Locke the motivations that cause people to leave the
state of nature stem as much from a desire for economic progress as
from a desire to escape the harsh conditions of this pre-political state.5
In addition, Locke sees the reach of the people as necessarily extending
beyond the selection of an absolute ruler. Locke argues that bestowing
absolute and arbitrary power in a monarch, or any group, potentially
leaves the people in a worse condition than they faced in the state of
To overcome this difficulty, Locke alters the Hobbesian
formulation of the compact in three important respects. First, Locke


The Federalists Vision of Popular Sovereignty

expressly divides the compact into two stages: the initial stage creates
civil society by unanimous consent; then the people delegate legislative
power (not sovereignty) to some authority by majority consent (135,
149). Second, this legislative power is limited to the public good of
the society. It is a power, that hath no other end but preservation, and
therefore can never have a right to destroy, enslave, or designedly to
impoverish the subjects (135). Third, in Lockes formulation the
legislator (or legislature) is subject to the laws (137, 143). The
government thus created is one of laws, not men. Because Locke
leaves sovereignty in the hands of the people, they retain the right to
assert their supremacy and rid themselves of a government that acts
Thus Locke
arbitrarily or otherwise violates its boundaries.
strengthens the Hobbesian version of popular sovereignty by explicitly
locating sovereignty in the people, by stipulating that the government
serves at the pleasure of the majority, and by reintroducing the ancient
distinction between rule of law and rule of men.
Still, even though Lockes scheme strengthens the theoretical basis
of popular sovereignty, it produces a weak or passive form of that
sovereignty except in extraordinary circumstances. By Lockes own
admission, the exercise of popular supremacy requires the ultimate
inconvenience the overthrow of the government:
And thus the community may be said in this respect to be
always the supreme power, but not as considered under any
form of government, because this power of the people can
never take place til the government be dissolved (149).
The problem is that Locke offers no mechanism for popular control.
Even in the case of an elected legislature, the people have little
authority when legislative terms are long and/or when the legislature
retains control over the constitution.7
The Federalists and their opponents were well-versed in the
philosophical tracts of the natural rights theorists, but the notion of

Popular Sovereignty: An Overview


popular sovereignty was more than a theoretical construct to them.

The Puritans brought the biblical covenant tradition with them to the
colonies, and this tradition provided the practical roots for de facto
popular sovereignty on the American continent well before Hobbes
wrote his famous treatise.8 The state of nature was real enough to the
early settlers, who were free and equal in harsh conditions far from the
protective forces of the British government. Fortunately, these settlers
understood the necessity of social and political cohesion for their
survival, and their religious practice supplied the means the covenant
for bringing about such cohesion. Before leaving their ships, all
male members of the Pilgrim party signed what came to be known as
the Mayflower Compact of 1620, in which they agreed to Combine
our selves together into a Civil Body Politick, for our better ordering
and preservation . . .9 This document is the earliest of many colonial
examples of popular sovereignty in practice.
During much of the early settlement period, Great Britain was
preoccupied by civil war at home and showed little interest in the
colonies abroad. Under this benign neglect, colonial self-reliance and
self-rule flourished, especially in New England, nurtured by covenant
tradition and the necessity to work together to survive harsh
conditions. While the English were consumed in civil war, the people
of the Massachusetts Bay Colony seized the opportunity to assert
themselves. As early as 1646, the Massachusetts General Court
declared that the highest authoritie here is the general court, both by
our charter and by our owne positive lawes.10
Later that year the
same assembly announced: Our allegiance binds us not to the laws of
England any longer than while we live in England, for the laws of
parliament of England reach no further [than the English shores], nor
do the kings writs under the great seal [reach to America].11
assertion of sovereignty is based on the notion, which Locke does not
profess until thirty-four years later, that a vital component of consent is
a direct link between the people and their institutions of government.
The logic of the Massachusetts Courts proclamation rests on the fact
that the people in Massachusetts elect their General Court but have no
direct representation in Parliament. The Court, then, serves as their
surrogate parliament.


The Federalists Vision of Popular Sovereignty

Later, Americans relied on the principle of popular sovereignty to

justify the Declaration of Independence from Great Britain, to establish
the basis for their new state constitutions, and to defend their second
national constitution.
A brief survey of the first two types of
documents will bring us up to the period of this study.
The first paragraph of The Declaration of Independence reveals a
facet of compact theory that did not exist in earlier models.
dissolving the political bands that have connected them with another
people, the former colonies do not merely cast off the British
government, they seem to form civil society anew:
WHEN, in the course of human events, it becomes necessary
for one people to dissolve the political bands which have
connected them with another, and to assume, among the
powers of the earth, the separate and equal station to which the
laws of nature and of natures God entitle them, a decent
respect to the opinions of mankind requires that they should
declare the causes . . .
What, at first glance, appears to be an invocation of Lockes right to
abolish an abusive government is actually much more the creation or
affirmation of a new body politic, separate and distinct from Great
Britain. Reading further into the document, it also becomes apparent
that this act of separation represents the division of a sovereign people,
not a replacement of one type of sovereign a king or parliament
with another the people. Although most of the complaints listed in
The Declaration are lodged against specific actions taken by the king
and some actions taken by parliament, it is significant that appeals had
been made to the people of Great Britain to disavow these
usurpations. Separation has ultimately become necessary, it seems,
not only because of these grave acts of the government, but also
because of the absence of a remedy from their fellow citizens, who
have been deaf to the voice of justice and of consanguinity.
To an important extent, then, the assertion of popular sovereignty
by the American people is qualified by their claim that sovereignty is
divisible. That is to say that one part of the sovereign people of Great
Britain can break apart from the whole to form a new commonwealth.

Popular Sovereignty: An Overview


The Declaration stipulates that a people should not initiate a break

without good reason, however, and that a decent respect to the
opinions of mankind requires that they should declare the causes which
impel them to the separation.
As it turns out, the division of
sovereignty is carried still further in the Articles of Confederation (and,
some argue, is continued in the Constitution of 1787), creating an
ambiguity in the foundation of the union that is to affect political
events in the nation well into the next century.
Although the Declaration sets the precedent for a division of
sovereignty, the wording in the first paragraph suggests that once they
had separated themselves from the British people, the Americans
viewed themselves as a single united people, rather than an
accumulation of separate peoples. This unity is conveyed in the phrase
one people to dissolve the political bands. However, there is some
ambiguity on this point because, in the last paragraph, the former
colonies declare themselves to be FREE AND INDEPENDENT
STATES, not a single free and independent state.12
interesting aspect of the wording in the Declaration is that the
grounding of popular sovereignty is lodged in the laws of nature and
of natures God, thereby recognizing both the secular and religious
roots of the principle.
One final point bears noting with regard to the Declaration of
Independence. Even though the separation from Britain technically
represents a breach in the compact itself and, at the same time, the
formal acknowledgement of a new one, the people do not act for
themselves but through delegates: We, therefore, the representatives of
the UNITED STATES OF AMERICA, in General Congress
assembled, appealing to the Supreme Judge of the world for the
rectitude of our intentions, do, in the name, and by the authority of the
good people of these colonies . . . Therefore, as of 1776, popular
sovereignty in America is expressed indirectly. Even the act that
initiates the American social compact, the separation from Britain, is a
delegated one.
Shortly after the signing of the Declaration of Independence, the
Articles of Confederation Americas first constitution were drafted,
although they were not adopted by the Continental Congress until


The Federalists Vision of Popular Sovereignty

1777 and were not approved by the last state legislature (Rhode Island)
until 1781. In this first constitution of the United States there is no
confusion as to where sovereignty lies; it is divided among the peoples
of the various states. The government of the union is actually an
alliance of sovereign states. This arrangement is made clear by the
method used to ratify the Articles:
Whereas it hath pleased the Great Governor of the World to
incline the hearts of the legislatures we respectively represent
in Congress, to approve of, and to authorize us [the
undersigned] to ratify the said Articles of Confederation and
Perpetual Union.
Notice that it is the legislatures of the states, not the people, that confer
authority on the new government of the union. This agreement, rather
than creating a separate national government, resembles the modern day
United Nations charter, where each member has an equal vote and each
retains its sovereignty. The provision in the Articles that gives each
state one vote, regardless of its population, makes clear the priority of
state sovereignty over national sovereignty. Indeed, as we shall see
later, Publius attributes the weakness of the union in 1787 and the
general disrepute into which it had fallen to this somewhat tenuous
foundation for union.
Yet the language of the Articles also indicates that union is not to
be viewed merely as a temporary arrangement for the convenience of the
states. The last two words in the passage quoted above are perpetual
union, and this notion of permanency is repeated two more times in
this final paragraph of the Articles. The emphasis on perpetual union
seems somewhat curious in light of a constitutional foundation that
leaves sovereign authority in the states, particularly in light of the
implications of a divided sovereignty suggested by the Declaration of
Independence. These seemingly incompatible objectives underscore the
real uncertainty that must have existed at the time about how best to
establish a legitimate foundation for union.
While the tensions evident in the Articles illustrate the problems
involved in the practical application of popular sovereignty, the various
state constitutions drafted during the same period indicate some

Popular Sovereignty: An Overview


progress toward resolving some of the difficulties. In the earliest state

constitutions, the people continue to express their sovereignty through
their delegated legislatures, even for the founding of their new
governments. In effect, the old colonial legislatures form the new
governments of the states. The New Hampshire Constitution (1776) is
illustrative of such a procedure:
We the members of the Congress of New Hampshire, chosen
and appointed by the free suffrages of the people of said
colony, and authorized and empowered by them to meet
together, and use such means and pursue such measures as we
should judge best for the public good; and in particular to
establish some form of government, provided that measure
should be recommended by the Continental Congress . . .
The South Carolina Constitution of 1776 is instituted in a similar
But in the Virginia Declaration of Rights we begin to see
the recognition that perhaps the founding process should be removed
from the ordinary operation of government. In this case a special
convention is selected to draft the Declaration of Rights and the
Constitution, although the delegates are chosen by and are a subset of
the existing colonial government. A significant breakthrough occurs,
however, with the Pennsylvania Constitution. Also drafted in 1776, it
is the product of a special convention, separate and distinct from the
ordinary government:
We, the representatives of the freemen of Pennsylvania, in
general convention met, for the express purpose of
framing such a government, confessing the goodness of the
great Governor of the universe . . . in permitting the people of
this State, by common consent, and without violence,
deliberately to form for themselves such just rules as they
shall think best, for governing their future society; and being
fully convinced, that it is our indispensable duty to establish
such original principles of government, as will best promote
the general happiness of the people of this State, and their
posterity, and provide for future improvements, without
partiality for, or prejudice against any particular class, sect, or


The Federalists Vision of Popular Sovereignty

denomination of men, do, by virtue of the authority vested
in us by our constituents, ordain, declare, and establish,
the following Declaration of Rights
and Frame of
Government, to be the CONSTITUTION of this
commonwealth . . . (emphasis mine)

Although the convention process still involves a delegation of power

by the people for the founding act, it strengthens their sovereignty by
explicitly placing the constitution above the ordinary process of
government. This innovation is best illustrated schematically. The
old configuration (New Hampshire) was:
people government constitution
The new, improved model is:
people convention constitution government
In 1780 another key development occurs. The Massachusetts
Constitution recognizes the people themselves as the performers in the
founding act:
We, therefore, the people of Massachusetts, acknowledging,
with grateful hearts, the goodness of the great Legislator of the
universe, in affording us, in the course of His providence, an
opportunity, deliberately and peaceably, without fraud,
violence, or surprise, of entering into an original, explicit, and
solemn compact with each other, and of forming a new
constitution of civil government for ourselves and posterity;
and devoutly imploring
His direction in so interesting a
design, do agree upon, ordain and establish the following
declaration of rights and frame of government as the
constitution of the commonwealth of Massachusetts.
(emphasis mine)
This is the first time that the phrase we the people is used, and such
wording has more than rhetorical significance. While the Pennsylvania

Popular Sovereignty: An Overview


Constitution was drafted and adopted by special convention, the

Massachusetts Constitution was the first to be submitted directly to the
people for ratification, a procedure we now take for granted in the

The modern conception of popular sovereignty is grounded first in the
covenant theology revived during the protestant reformation. Natural
rights theorists then secularized the basis of popular sovereignty in the
social compact. The American constitutional system acknowledges
both the religious and secular roots of popular sovereignty.
During the period leading up to the Constitutional Convention of
1787, there is first an assertion, then a strengthening, of the principle of
popular sovereignty evidenced in the Declaration of Independence from
Great Britain and in the constitutional experiments taking place in the
various states. On the one hand, these developments exemplify radical
and profoundly democratic events in western political history;15 on the
other hand, they represent small, but logical steps in the evolution of
the American political tradition. As will become apparent in the
following chapters, Publius discussion of popular sovereignty
embraces both points of view.

This Page Intentionally Left Blank


Becoming A People
The First Stage of Publius Compact

Publius effective, if at times passionate, advocacy for the Constitution

stems from a genuine belief that it offers the American people a better
way better not only than what they already have, but better also than
anything else on offer either in theory or by example. This better way
embraces social compact theory, but in a distinctly American form.
Publius refers to the compact directly in six of the papers,1 and he
clearly presents the Constitution as a product of a social compact.
However, he never specifically lays out an American model of the
compact in any one place in the Federalist essays. This task is left to
the reader, and it is the project that we begin here.2
Because Publius describes a real compact rather than an imagined
one, he is burdened with practical political problems that his theoretical
soul-mates did not need to confront. For example, Publius recognizes
that human beings need positive motives as well as negative ones to be
willing to join together to form a single people. He must deal with the
intricacies of an actual, as opposed to hypothetical, expression of
consent by current and future generations. Furthermore, Publius has to
find some way to handle the added complication of a union of states,
in which each state already has in place a legitimate popular
government. He also must contend with principles inherent in the
social compact that pose a potential threat to the fledgling nation. For
instance, the right of the majority to revolt might be used to justify
acts of a temporary majority, activated by passion, which would
undermine the newly formed nation.


The Federalists Vision of Popular Sovereignty

Publius adopts various approaches to dealing with these and other

problems. Sometimes he merely explains them; at other times he
attempts to justify various provisions in light of them; at still others
he turns what appear to be political difficulties to his advantage. The
net effect of his handling of the political realities reflected in the
proposed constitution is a more robust version of the social compact
than the earlier, theoretically grounded models. This chapter explores
Publius contributions to the first stage of the compact.
The phrasing of the Preamble to the Constitution presupposes the
existence of a people for the establishment of a political constitution:
We the people of the United States . . . do ordain and establish this
Constitution for the United States of America. Publius accepts the
two-stage agreement that is implicit in the Lockean version of the
compact. He further contends that the first stage of the American social
compact was initiated, and perhaps even consummated, sometime prior
to the constitutional convention of 1787. The political climate
surrounding the ratification debate impels Publius to explore more
deeply than did his predecessors the nature of the bonds that tie a
people together. After all, a major issue of the ratification debate is
whether the union is to be structured as a single nation of one people or
as an alliance of independent peoples or whether the notion of union
is to be put aside altogether in favor of multiple confederacies.
Publius recognizes that the very existence of such a debate
indicates that the boundaries that define a civil society, rather than
being fixed as assumed in prior theories, are flexible. He identifies two
factors that are important in determining these boundaries: (1) the
strength of the affective bonds things shared and mutual affection
among those constituting a civil society and (2) the capacity of the
civil society, once constituted, to achieve the ends for which it is
created. The inclusion of the first set of factors suggests that Publius is
more attentive than the earlier natural rights theorists to the importance
of the positive bonds in the first stage of the compact. His discussion

Becoming A People


of the positive connections essential in a political community makes

explicit the presence of a humanist component in a compact otherwise
grounded in self-interest.4 This is not to say that Publius ignores the
reasons for joining together based on individual self-interest; these
motives represent the second element of the double bond.
Although one of the major issues of the ratification debate concerns
how the American people are to be aggregated as a singularity or a
plurality of peoples, Publius contends that the issue has already been
resolved. In Number 2J he explains that [i]t has until lately been a
received and uncontradicted opinion, that the prosperity of the people
of America depended on their continuing firmly united and that only
recently politicians now appear, who insist . . . that instead of looking
for safety and happiness in union, we ought to seek it in a division of
the States into distinct confederacies or sovereignties (2J:8).5
Publius then reviews in considerable detail the positive bonds that
have united the people of America. He begins by describing the
geographic contiguity and the geographic features that make
communication, trade, and mutual assistance possible. He then
considers other ties, including common language, common culture, the
same religion, similar political beliefs, and the bonds of war. In
addition to these circumstantial and social factors, Publius invokes the
guiding hand of Providence, reinforcing the notion that the union
consists of a chosen people: 6
Providence has been pleased to give this one connected
country, to one united people, a people descended from the
same ancestors, speaking the same language, professing the
same religion, attached to the same principles of government,
very similar in their manners and customs, and who, by their
joint counsels, arms, and efforts, fighting side by side


The Federalists Vision of Popular Sovereignty

throughout a long and bloody war, have nobly established
their general Liberty and Independence. (2J:9) 7

The passage quoted above appears at the beginning of the series of

papers in which Publius defends the preservation of the union by
cataloging the benefits of a large republic. He repeats the same
sentiment at the end of this series:
Hearken not to the unnatural voice which tells you that the
people of America, knit together as they are by so many
chords of affection, can no longer live together as members of
the same family, can no longer be fellow citizens of one great
respectable and flourishing empire . . . . (14M:66)
Publius further suggests that the dissolution of the union would
represent a breach in the original compact and would be accompanied
by dire consequences:
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 rending us in pieces, in order to
preserve our liberties and promote our happiness. (14M:66)
These passages convey three important ideas: (1) the first stage of
the compact has already been consummated; (2) it would be a mistake
to break this earlier compact; and (3) this first stage of the compact
enjoys the blessings of Providence. The first two points are fairly
straightforward, but the introduction of Providence has broader
implications. In other papers Publius uses the notion of a chosen
people to create the sense of an American mission that he then projects

Becoming A People


into the future. This mission seems to carry with it a responsibility to

leave parochialism behind and to adopt a larger view of the world.
Publius portrays a world consisting of heroes and villains. In his
scenario the Europeans prey on the rest of the world, while the
Americans are the potential saviors. But American greatness is
conditioned on total independence from Europe military, economic,
and intellectual. Publius, of course, argues that the best way to avoid
European domination and to advance the American mission is to
remain one united people. In Number 11H he makes clear his feelings
about European colonialism: The world may politically, as well as
geographically, be divided into four parts, each having a distinct set of
interests. Unhappily for the other three, Europe by her arms and by her
negotiations, by force and by fraud, has, in different degrees, extended
her dominion over them all (53). He goes on to describe its
Eurocentric mentality: The superiority, she [Europe] has long
maintained, has tempted her to plume herself as the Mistress of the
World, and to consider the rest of mankind as created for her benefit.
Men admired as profound philosophers have, in direct terms, attributed
to her inhabitants a physical superiority; and have gravely asserted that
all animals, and with them the human species, degenerate in America .
. . (53).
Then Publius proposes his solution to this European
arrogance, a solution that depends on the unity of the American people:
It belongs to us to vindicate the honor of the human race, and
to teach that assuming brother [meaning Europe] moderation.
Union will enable us to do it. Disunion will add another
victim to his triumphs. Let Americans disdain to be the
instruments of European greatness! Let the thirteen States,
bound together in a strict and indissoluble union, concur in
erecting one great American system, superior to the control of
all transatlantic force or influence, and able to dictate the
terms of the connection between the old and the new world!
(11H:53-4) 8
Publius also argues that maintaining a firm American identity,
separate and distinct from any connection with European nations, has


The Federalists Vision of Popular Sovereignty

practical advantages, namely the avoidance of being embroiled in

conflicts not of American making but originating on the European
The fortunes of disunited America will be even more
disastrous than those of Europe. The sources of evil in the
latter are confined to her own limits. No superior powers of
another quarter of the globe intrigue among her rival nations,
inflame their mutual animosities, and render them the
instruments of foreign ambition, jealousy, and revenge. In
America, the miseries springing from her internal jealousies,
contentions and wars, would form a part only of her lot. A
plentiful addition of evils would have their source in that
relation in which Europe stands to this quarter of the earth . .
. (41M:211-12)
Publius emphasis on the common bonds that define a unique
American identity and the promise that identity offers for the world, as
well as for the greater glory of the American people, brings a new
dimension to the social compact. The social connections among a
people united by a common mission add a positive cast and a
communal purpose to a compact that for Hobbes was motivated
primarily by fear and for Locke was a product of individual calculation.
Still, even for Publius, the positive connections represent only half of
the bond that cements the compact; fear and calculation are also
Although Publius acknowledges an important role for positive bonds
among a people, he does not shy away from the darker side of human
nature in his consideration of the social compact. Indeed, he warns of
the danger of wars instigated by foreign powers (3J, 4J) and of
potential wars among the previously friendly states (5J, 6H, 7H, 8H) if
one people becomes a plurality of separate peoples. At one point
Publius even sounds like Hobbes as he describes men in the state of

Becoming A People


nature as ambitious, vindictive, and rapacious (6H:23), although this

characterization relates to a discussion of rivalries among nations rather
than between individuals. Publius warning is that such rivalries
would most likely emerge among the American states if they were to
become disunited.
On at least five occasions Publius specifically refers to the material
motives preservation of self and/or property for forming the
compact. On two occasions he acknowledges that self-preservation is a
reason for original consent. In Number 41M he asserts:
Security against foreign danger is one of the primitive objects
of civil society. It is an avowed and essential object of the
American Union. (41M:210)
In Number 43M Publius goes so far as to suggest that the principle of
self preservation justifies a ratification scheme that allows a major part
nine out of thirteen of the signatories of the Articles to compact
among themselves to re-form civil society:
The first question is answered at once by recurring to the
absolute necessity of the case; to the great principle of selfpreservation; to the transcendent law of nature and of natures
God, which declares that the safety and happiness of society
are the objects at which all political institutions aim, and to
which all such institutions must be sacrificed. (43M:228) 10
Notice that in Publius presentation of the original motives some of the
harsh edges of the Hobbesian and Lockean formulations are tempered
by the suggestion that it is not mere life (safety), or even a
commodious life, but also the general happiness of society that
prompts men to alter their arrangements with one another. The pairing
of happiness with safety in this paper is not unique but appears
throughout The Federalist.
We shall explore more fully the
theoretical implications of this pairing in Chapter Four.
In the other papers, where Publius recurs to original motives, he
does so to emphasize that the people who form civil society in the first


The Federalists Vision of Popular Sovereignty

stage always retain their supremacy over the political institutions that
are created in the second stage. The following passage from The
Federalist might be mistaken for one from Lockes Second Treatise:
If the representatives of the people betray their constituents,
there is then no resource left but in the exertion of that
original right of self defense, which is paramount to all
positive forms of government; and which, against the
usurpations of the national rulers, may be exerted. (28H:140)
In other papers Publius reinforces the notion that the boundaries
that define a civil society are important. In 8H and 51M he pulls out
all the stops as he illustrates how original motives may lead to the
downfall of an ill-considered compact. In 8H he describes the hazards
of deciding to become a plurality of peoples instead of a single people
in the first stage of the compacting process. Disunion, he claims, is
likely to result in continual wars and plunder among the once friendly
states with the following consequences:
Safety from external danger is the most powerful director of
national conduct. Even the ardent love of liberty will, after a
time, give way to its dictates. The violent destruction of life
and property incident to war the continual effort and alarm
attendant on a state of continual danger, will compel nations
the most attached to liberty, to resort for repose and security,
to institutions, which have a tendency to destroy their civil
and political rights. To be more safe they, at length, become
willing to run the risk of being less free. (8H:34)
Publius makes a similar argument in 51M, but here he contends
that it is the want of justice that leads to the destruction of liberty:
Justice is the end of government. It is the end of civil society. It ever
has been, and ever will be pursued, until it be obtained, or until liberty
be lost in the pursuit. He goes on to explain why the size of a society
matters: In a society under the forms of which the stronger faction can
readily unite and oppress the weaker, anarchy may as truly be said to

Becoming A People


reign, as in a state of nature where the weaker individual is not secured

against the violence of the stronger: And as in the latter state even the
stronger individuals are prompted by the uncertainty of their condition,
to submit to a government which may protect the weak as well as
themselves. He concludes by predicting that even the more powerful
factions or parties [will] be gradually induced by a like motive, to wish
for a government which protects all parties, the weaker as well as the
more powerful. In this case he predicts that some power altogether
independent of the people would soon be called for by the voice of the
very factions whose misrule had proved the necessity of it(51M:269).
In this paper Publius goes on to explain that the extended republic
tends to preserve liberty, because justice and the common good are less
likely to be threatened by factious activity. In a large republic
majorities must be formed from people of varying persuasions; thus,
there is less likelihood that a permanent majority will dominate a
weaker element. In the extensive republic provided for in the proposed
constitution, the people are less likely to impose a Hobbesian solution
a will independent of society itself upon themselves.
What Publius offers here is a remedy for the inherent instability of
democratic regimes and for the tendency of such regimes to degenerate
into tyranny. However, this remedy lies in the first, not the second,
decision that forms the compact. For republicanism to be enduring,
says Publius, the compacting people, rather than being few in number
and homogeneous in nature, must be many and diverse.
All of the passages quoted thus far in this chapter either imply or
explicitly state that the people have a choice in defining the boundaries
of the civil society to which they are to belong. The last two passages
demonstrate that there are grave consequences for making the wrong
choice. Publius recognition of the fluidity of the boundaries that
demarcate civil society represents an important addition to the compact
theories of Hobbes and Locke. The creation of a civil society in these
earlier natural rights theories required merely a yes/no vote. A vote of


The Federalists Vision of Popular Sovereignty

yes meant you were in; a no vote meant you were out. In
admitting to the elasticity of the boundaries of civil society, Publius
complicates this choice. Not only do the compacting people have to
decide whether to enter into civil society, but also they must decide on
the boundaries of that society. Publius suggests that two types of
variables govern that choice. Affective elements, such as common
culture, mutual affection, and a common mission are as important as a
mutual need for security.
However, Publius also points out that the continuance of civil
society requires more than love and respect or even a common need for
protection. His point is that the configuration of civil society matters.
Here he takes us right back to fundamental principles. The decision
that initiates or alters civil society must take into account the goals of
that society. In determining whether the union should consist of one
society or a plurality, Publius tells his readers to take the long view
and to consider the things that really matter to them. In this case the
key political values he highlights are those that are stated not only in
the preamble to the proposed federal constitution, but also in most of
their state constitutions: popular control, the ability to improve the
frame of government, justice, peace, security, economic well-being,
liberty, and stability.
In his discussion of civil society, Publius approaches the intersection
of choice and accident. He concedes that the American states enjoy the
good fortune of separation from Europe by a vast ocean. But he warns
that insularity alone is not a sufficient deterrent to European meddling
in the Americas. While the combination of union and isolation creates
a bastion against foreign intrusions, this advantage quickly loses its
potency as that union breaks apart. In Number 8H Publius remarks:
If we are wise enough to preserve the Union, we may for ages
enjoy an advantage similar to that of an insulated situation.
Europe is at a great distance from us. Her colonies in our
vicinity, will be likely to continue too much disproportioned

Becoming A People


in strength, to be able to give us any dangerous annoyance . .

. But if we should be disunited . . . we should be in a short
course of time, in the predicament of the continental powers
of Europe . . . (8H:36)
Publius reinforces this point again in 41M:
America, united with a handful of troops, or without a single
soldier, exhibits a more forbidding posture to foreign
ambition, than American disunited with an hundred thousand
veterans ready for combat . . . The distance of the United
States from the powerful nations of the world, gives them the
same happy security [as Britain enjoys as an island nation] . .
. (41M:211)11
In these passages Publius seems to refute the suggestion made later by
Tocqueville that Americans were able to sustain their democracy
primarily because of its geographic isolation.12
Publius anticipates
this characterization of the United States and his response is in the
form of a yes, but answer yes, but the people need to be thoughtful
enough to organize themselves into one entity so that geography can be
turned to their advantage.
In removing social compact from the vacuum of theory and preparing it
for use in the real world, Publius adds some subtle but significant
refinements to its first stage.
First, he transforms the
Hobbesian/Lockean compact from one that is grounded on primal and
material motives into one that takes into account the social connections
and the positive communal goals that inhere in human nature. His
theory underscores the importance of the double bond, consisting of
affective ties and a mutual need for self-preservation, for reinforcing the
cement that binds civil society. While it might be argued that his
theoretical predecessors account for these affective elements implicitly
in their theories, Publius makes the exigency of these positive


The Federalists Vision of Popular Sovereignty

connections explicit. Moreover, his insinuation of a providentially

guided mission into the story gives the people a reason to unite or
affirm their unity that transcends themselves and benefits mankind
The providential mission also adds timber for the
construction of the American myth.
Finally, Publius brings to light the fluidity of the boundaries that
demarcate civil society. Such flexibility complicates the compacting
process as it expands the range of choice for the compacting peoples.
As a result, we learn that all but the simplest compacts assume some
degree of political competence (virtue) in the people. The point that
Publius emphasizes over and over again in the first fourteen essays of
The Federalist is that the configuration of that society matters, not
only for safety and good relations among the people, but also for the
success of their political institutions.


A Popular Founding
The Second Stage of Publius Compact

Publius adds important theoretical elements to the first stage of the
social compact, but it is in the second stage that he makes his most
significant contribution. Here he resuscitates the ancient notion that a
political founding is associated with the institution of a higher form of
political law. In the American case, the ratification represents the
founding event and the Constitution, the higher law. The American
founding is unique, however, because the ratification procedure enables
the people to give their constitution to themselves thus establishing
the first popularly founded nation in history.
The introduction of a popularly agreed upon constitution into the
second stage of the compact leads to a more substantive form of
popular sovereignty than the thinner versions offered by Publius
predecessors. This chapter examines the nature of Publius popular
founding and its implications for compact theory. It turns out that the
incorporation of a formal constitution into the compact dramatically
alters the relationship between the people and their government.
To provide some perspective on Publius contribution, it is
necessary to step back for a moment to review how his predecessors
regarded this aspect of the social compact. Recall that in the
Hobbesian version of the compact, once the people grant sovereignty to
a king or an assembly they become subjects and have no further role in
the organization or oversight of their government. The sovereign holds
absolute and arbitrary power, the only constraint being that s/he not
abandon the people.


The Federalists Vision of Popular Sovereignty

Lockes theory moves beyond Hobbes rather austere model. In

the second stage of the Lockean compact, the people retain their
sovereignty but delegate political power to a government, which then
acts as their agent. For Locke as well as Hobbes, the supreme political
power lies in the legislative function; it is the act of delegating this
function by the people that constitutes the second stage of the compact
for Locke. But Locke imposes specific limits on the legislative power:
First, they are to govern by promulgated established laws,
not to be varied in particular cases . . . Secondly, These laws
also ought to be designed for no other end ultimately, but the
good of the people. Thirdly, They must not raise taxes on
the property of the people without the consent of the people,
given by themselves or their deputies . . . [and] Fourthly, the
legislative neither must nor can transfer the power of making
laws to anybody else, or place it anywhere but where the
people have. (Second Treatise, 142)
The problem with Lockes scheme is that while the delegation of
authority is accompanied by theoretical limits on the power of the
government, his theory does not include adequate institutional controls
on that power. Therefore, although the broad constitutional outline
may be defined by the people, the specifics of the political laws lie
within the province of the legislative function. The hazards of Lockes
system of delegation are illustrated in the British constitution, which
does not enjoy the status of higher law because it is alterable by
ordinary legislation.
As Publius explains, Parliament [as]
transcendent and uncontrollable . . . with regard to the Constitution
has at crucial times blocked popular oversight by chang[ing] the
period of their election (53M:278). In this situation the people have
no constitutional instrument for curbing abuses of power by the
delegated government short of asserting their right to dissolve the
Locke is almost there at one point he refers to the original
constitution (153), at another to first framers of government

A Popular Founding


(156). But his conception of a constitution is fairly vague, and he

never discusses who the first framers are. The constitutional process
for him seems to be the assignment of the legislative power, period.
Locke indicates a preference for an elected legislature, which he
describes as providing a fence against rebellion (226), presumably
because elections provide a means for the people to intervene before a
situation becomes so bad that the dissolution of the government is
required. He views legislative power as fiduciary and asserts that the
community perpetually retains a supreme power (149). However, he
also admits that the supreme power of the people can never take place
until the government is dissolved (149).
The American addition of a formal constitution to the compact gives
the people the internal control that Lockes system lacks. In the
American system, the people neither grant sovereignty nor delegate
supreme legislative power but, instead, establish a political
constitution that is to direct the operation of the government. The
constitution outlines the structure of the government that is to serve the
people and establishes limits on the activities of that government.
Moreover, the people retain authority over the constitution through a
prescribed amendment procedure that operates outside the ordinary
legislative process. The American constitution represents a set of laws
that are separate from and superior to ordinary legislative law.1
Publius notion of a higher law is ancient in principle but new in
form. A written constitution, the concept of judicial review,2 a
prescribed amendment procedure, and defined limits imposed on the
government give the American constitution teeth. Writing them down
gives the laws constancy and, at the same time, makes them accessible
to the people of all generations; judicial review provides an avenue for
individual citizens to challenge the constitutionality of legislative
actions (ordinary laws);3 the amendment provision gives the people a
peaceful mechanism, beyond elections but short of dissolution, for
changing what they do not like about their government and allows
them to implement procedures to curb government abuse;4 finally, the


The Federalists Vision of Popular Sovereignty

limits imposed on the national government create an ethos of limited

government and, on a more substantive level, supply the grounds in
case law for challenges to acts of an overreaching congress.5
revitalization of the notion of higher law in the American constitution
and the mechanisms that provide for continuing popular control over
that constitution contribute to a strengthening of popular sovereignty
and to what Publius hopes will be a more stable political situation.
Publius considers the constitutional ratification process a major historic
landmark because, if successful, the resulting national government
would be the first to be the creation of a fully executed social compact.
The existing Articles of Confederation do not count, he contends,
because as a compact between independent sovereigns, founded on
ordinary acts of legislative authority, they can pretend to no higher
validity than a league or treaty between the parties (43M:228).
Because of its historic importance, Publius takes the high ground in
his discussion of the constitutional ratification process. He tells the
story of the popular founding not in one paper, nor in a contiguous
series of papers, but as a sub-text that runs throughout The Federalist.
Whenever Publius addresses this issue, the emotive element in his
rhetoric is turned up a notch, and his approach is probably calculated to
startle a people accustomed to a high degree of involvement in their
own governance, including the approval of their state constitutions
out of complacency. Publius objective is to remind them that the
undertaking in which they are engaged is not commonplace.
Although Publius specifically asks his readers to use care and
reason in considering ratification of the proposed constitution, he
understands the power of passion. In the passages that refer to the
founding, Publius appeals to the passions of his readers to their high
passions, not their low ones. His purpose, it seems, is to reinvigorate
the myth of a chosen people that was very much in evidence at the
constitutional convention and can be traced back to the earliest colonial

A Popular Founding


Publius begins his project boldly. In the first paragraph of the

first paper, he presents the ratification process as a challenge to the
American people:
The subject speaks its own importance; comprehending in its
consequences nothing less than the existence of the UNION,
the safety and welfare of the parts of which it is composed,
the fate of an empire, in many respects, the most interesting
in the world. It has been frequently remarked, that it seems
to have been reserved to the people of this country, by their
conduct and example, to decide the important question,
whether societies of men are really capable or not, of
establishing good government from reflection and choice, or
whether they are forever destined to depend, for their political
constitutions, on accident and force. (1H:4)
He frames the ratification decision as a measure of the peoples
greatness. They are to be the test case for the modern project to
determine whether the creation of a nation founded on consent is a real
possibility or just another city in speech. According to Publius, a
vote for the Constitution demonstrates that the people are ready to take
control of their political destiny; a vote against ultimately leaves their
destiny to circumstance and/or to some stronger force. Furthermore, he
warns that a wrong decision deserve[s] to be considered as the general
misfortune of mankind (1H:4). Later, he casts this decision within
the context of the continuing struggle to rescue free government from
its detractors, remarking that [h]appily for mankind, stupendous
fabrics reared on the basis of liberty, which have flourished for ages,
have in a few glorious instances refuted their gloomy sophisms. And,
I trust America will be the broad and solid foundation of other edifices
not less magnificent, which will be equally permanent monuments of
their errors (9H:38).
Publius never really lets up; he refers to the American challenge to
greater or lesser degrees throughout The Federalist. In Number 14M,
which completes the series of papers about the advantages of an


The Federalists Vision of Popular Sovereignty

extended republic, Publius reminds his readers of their recent glories

and asks them to continue on the same path:
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: .
. . 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 . . . this [constitution] 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 (14M:66-7).7
In short, the American people have the opportunity to make
history, for better or for worse. Publius observes that [t]he novelty of
the undertaking immediately strikes us (37M:187). Although he
admits that popular governments have existed before, he points out
that in every case reported by ancient history, in which government
has been established with deliberation and consent, the task of framing
it has not been committed to an assembly of men; but has been
performed by some individual citizen of preeminent wisdom and
approved integrity. He also wonders [w]hat degree of agency these
reputed Lawgivers might have [had] in their respective establishments,
or how far they might [have been] clothed with the legitimate authority
of the people . . . (38M:187-8).
Publius emphasizes two improvements to the ancient model that
have been incorporated into the American constitutional process: one,
the American constitution was drafted by an assembly of men chosen
by the people rather than by a single prominent individual; two, the
proposed constitution requires the explicit consent of the people before
it can become operational, whereas ancient constitutions were given to

A Popular Founding


the people.8 The crucial difference is that the ancient peoples played a
passive role in the foundings of their republics, while the American
people are to become active participants in the founding of theirs. And,
while Publius is not adverse to adding the authority of superstition
to the founding process since this is precisely what he does with his
references to Providence and the almighty finger he manages to
avoid the necessity of mixing [in that] portion of violence that
accompanied the ancient foundings (38M:188). By making the people
the founders, it is not necessary for any of the revered citizens to secure
the founding by voluntary renunciation of first his country, and then
of his life (188). The ratification provision in the proposed
constitution alters the Greek precedent by transforming the political
founding from an extra-political milestone into a legitimate political
event, engaged in by the very same people who will continue to be
participants in the polis.9
Publius also points out that there are no examples of a popular
founding in his own time. The important distinction so well
understood in America between a constitution established by the
people, and unalterable by government; and a law established by the
government, and alterable by government, seems to have been little
understood and less observed in any other country (53M:277). Even
Montesquieus much-beloved British constitution provides no better
model with respect to its foundation than the ancient ones. Indeed,
the British constitution, which is unwritten and alterable by
Parliament, falls well short of the mark, as Publius explains:
Wherever the supreme power of legislation has resided, has
been supposed to reside also, a full power to change the form
of government. Even in Great Britain, where the principles
of political and civil liberty have been most discussed; and
where we hear most of the rights of the constitution, it is
maintained that the authority of the parliament is transcendent
and uncontrollable, as well with regard to the constitution, as
the ordinary objects of legislative provision. They have
accordingly, in several instances, actually changed, by
legislative acts, some of the most fundamental articles of the
government. (53M:277-78)


The Federalists Vision of Popular Sovereignty

His point is simply this: a constitution that is the product of a popular

founding belongs to the people, and only the people can change it. A
clear distinction between the constitution and the legislature affords a
considerable degree of protection for the people against the caprices of
an elected government. Unlike their British counterparts, members of
the House of Representatives cannot change their terms of office,
because these terms are specified in the Constitution.
Publius carries the theme of a special mission all the way through
to the concluding essay of The Federalist. Just as he begins the papers
by challenging the American people to greatness, he ends the papers
with high praise of the novel and noble enterprise that engages them.
The establishment of a constitution, in time of profound peace, by the
voluntary consent of a whole people, is a PRODIGY, to the
completion of which I look forward with trembling anxiety (85H:454
emphasis his).
Implicit in Publius challenge to the American people is the
assumption that they are up to the task; that is, they possess sufficient
virtue and intelligence to engage in the founding process. He alludes
to this capacity (in 14M above) when he speaks of the glory of the
people of America and of their manly spirit. Nor is this a lone
example. His confidence in the people is expressed throughout The
Federalist, though not always in reference to the ratification procedure.
For example, on four occasions he speaks of the genius of the
people. On two occasions he refers to their intelligence. He also
uses such phrases as free and gallant citizens and the vigilant and
manly spirit which actuates the people of America to make this
point.12 Perhaps his strongest affirmation of faith in the people occurs
within a discussion of human nature and its implications for self-rule.
In Number 55M Publius rebukes those who contend that
representatives elected to the House cannot be trusted because the
overall size of the House is too small (65 members to begin with). He
warns these critics that they undermine their cause by implying that the

A Popular Founding


people are incapable of electing representatives who will serve the

public interest rather than their own. Publius concedes that there is a
degree of depravity in mankind which requires a certain degree of
circumspection and distrust, but he adds that:
there are other qualities in human nature, which justify a
certain portion of esteem and confidence.
government presupposes the existence of these qualities in a
higher degree than any other form. Were the pictures which
have been drawn by the political jealousy of some among us,
faithful likenesses of the human character, the inference would
be that there is not sufficient virtue among men for selfgovernment; and that nothing less than the chains of
despotism can restrain them from destroying and devouring
one another. (55M 289-90)13
By emphasizing the unique opportunity the American people have
to establish a positive example for mankind and by underscoring his
belief that they are up to the challenge, Publius instills a moral
component into the ratification decision. However, he also
acknowledges the risks that are inherent in leaving the choice to the
people. Delay in pursuit of perfection may result in a lost opportunity.
It is better, he advises, to trust the refinements to the wisdom gained
by future generations:
These judicious reflections contain a lesson of moderation to
all the sincere lovers of the union, and ought to put them
upon their guard against hazarding anarchy, civil war, a
perpetual alienation of the States from each other, and perhaps
the military despotism of a victorious demagogue, in the
pursuit of what they are not likely to obtain, but from TIME
and EXPERIENCE. (85H:453-54 emphasis his)
While Publius praises the popular founding as a noble experiment, he
also recognizes the necessity of popular consent for the institution of an


The Federalists Vision of Popular Sovereignty

efficacious government. Just as consent legitimizes the assignment of

sovereignty in the Hobbesian scheme and the delegation of political
power in the Lockean scheme, it lies at the heart of the American
Publius emphasizes the importance of consent both explicitly and
implicitly throughout The Federalist, contending that the stability and
longevity of a government require a firm foundation.14 He explains that
the federal system under the Articles of Confederation never had a
ratification by the PEOPLE. Instead, that government rested on no
better foundation than the consent of the several Legislatures, and as a
result it has been exposed to frequent and intricate questions
concerning the validity of its powers and has in some instances given
birth to the enormous doctrine of the right of legislative repeal
(22H:113). Publius insists that in order to have a government that
works [t]he fabric of the American Empire ought to rest on the solid
basis of THE CONSENT OF THE PEOPLE. The streams of national
power ought to flow immediately from that pure original fountain of
all legitimate authority (22H:113).
Importantly, Publius is quite specific about who the people are.
Unlike the Greek democracies or even the British constitutional
monarchy, where citizenship was limited to a chosen few, it is
essential to such a[n American] government, that it be derived from the
great body of society, not from an inconsiderable proportion, or a
favored class of it (39M:194-5). This is to be the most inclusive
republic in history!
In his penultimate essay, Publius explains the longer-term
implications of this broad-based popular founding in the language of
the social compact. Here it is clear that he equates consent with
popular rights:
WE THE PEOPLE of the United States, to secure the
blessings of liberty to ourselves and our posterity, do ordain
and establish this constitution for the United States of
America. Here is a better recognition of popular rights than
volumes of those aphorisms which make the principle figure

A Popular Founding


in several of our state bills of right, and which would sound

much better in a treatise of ethics than in a constitution on
government. (84H:443)
Publius makes direct references to the necessity of actual consent
in at least fifteen papers,16 and he alludes to the fact that such consent
is required for the proposed constitution to become operational in some
six more papers.17 Yet, when he actually gets down to a discussion of
how this expression of consent is to occur, it is not quite what one
might expect if one relies on the substance of the passages quoted
above. The people do not register their consent in the form of a
national referendum; nor do they issue their consent through a
nationally elected convention. Instead, the people express their consent
through the election of deputies to special state conventions, where the
special deputies decide by majority vote whether or not the state is to
ratify the Constitution. The Constitution becomes operational only
after it is ratified by nine states and then over only those states that
ratify it.
In the end, consent is issued by collections of sovereign
peoples, not by the people generally. Moreover, this second stage of
the compact requires unanimous consent of those peoples rather than
the more usual agreement by a majority. Technically, the unanimity
provision is not at odds with Lockes theory because of his proviso
that society can establish whatever decision rule it wishes to activate
the second stage of the compact.
However, the potential for
downsizing civil society in the process of instituting the second stage
of the compact is a problem both theoretically and practically.
Therefore, it seems that the ratification procedure defined in the
Constitution contains two significant departures from the theoretical
ideal for a popular founding articulated by Publius himself. First, the
method of expressing consent seems to violate the condition that
consent be given by the people as individuals. In addition, the
implementation of the second stage of the compact has the potential to
negate the first stage (thus creating a new compact) by allowing the
union to be redefined to consist of fewer than thirteen states.18 It
would seem that Publius has some explaining to do to his readers.


The Federalists Vision of Popular Sovereignty


It is possible that most of Publius contemporaries were less troubled
than a twentieth century reader might be by the supposed theoretical
improprieties listed above, particularly the first one. But it appears
that Publius sees the theoretical difficulties and attempts to craft his
discussion to satisfy both segments of his readership, present and
future, on this issue.
Among his contemporaries there was concern that the proposed
constitution would weaken the political authority of the states and
either render them subservient to the national government or subvert
their power entirely. The states, after all, had a considerable degree of
political autonomy even as colonies of Great Britain. Under the
circumstances it is difficult to imagine how any ratification scheme
would pass muster that did not in some way recognize the political
If he is to persuade his audience to ratify the
integrity of the states.
Constitution, he has no other choice but to allay these concerns
wherever possible. What little Publius has to say about the ratification
procedure is in numbers 39M, 40M, and 43M. In 39M he specifically
addresses the procedure and what it means to the states. Surely his
emphasis on certain words in the relevant passages is intended to stress
the key role of the states, as states, in the ratification process. This is
how, I believe, he intended his contemporaries, at least those concerned
about the retention of political powers in the states, to construe the
[1.] [T]his assent and ratification is to be given by the people,
not as individuals composing one entire nation; but as
composing the distinct and independent States to which they
respectively belong . . . The act therefore establishing the
constitution, will not be a national but a federal act.
(39M:196 emphasis his)
[2.] That it will be a federal and not a national act, as these
terms are understood by the objectors, the act of the people as
forming so many independent States, not as forming one

A Popular Founding


aggregate nation, is obvious from this single consideration

that it is to result neither from the decision of a majority of
the people of the Union, nor from that of the majority of the
several States that are parties to it, differing no otherwise
from their ordinary assent than in its being expressed, not by
the legislative authority, but by that of the people themselves
. . . Each State in ratifying the constitution, is considered as
a sovereign body independent of all others, and only to be
bound by its own voluntary act. In this relation then the new
Constitution will, if established, be a federal not a national
Constitution. (39M:196-7 emphasis his)
He continues, arguing that the connection that is so crucial between the
people and their government is established not in the foundation of
government, but in its operation:
[3.] The difference between a federal and national Government
as it relates to the operation of the Government is supposed
to consist in this, that in the former, the powers operate on
the political bodies composing the confederacy, in their
political capacities: In the latter, on the individual citizens,
composing the nations, in their individual capacities. On
trying the Constitution by this criterion, it falls under the
national not the federal character; though perhaps not so
completely, as has been understood. (39M:197)
Notice how he even qualifies the national operation of the government
with the phrasing at the end of the passage. And, so as to make no
mistake about the importance of the states in this process, Publius
reiterates these points in a summary in the final paragraph of the paper:
The proposed Constitution therefore is in strictness neither a
national nor a federal constitution; but a composition of both.
In its foundation, it is federal, not national . . . in the
operation of these powers, it is national, not federal . . .


The Federalists Vision of Popular Sovereignty

On another level, though, I believe that Publius also addresses his

future readers. He seems to be aware of the theoretical problems with
the ratification procedure, and he concedes that they exist even before
he brings up the specifics of the procedure. In 37M Publius prepares
his reader for what is to come. This is one of his most abstract papers,
and it is not really necessary for his overall argument. I suspect its
inclusion, especially at this particular place in the sequence, suggests
that he anticipates criticism about the theoretical disparities present in
the ratification process.
The gist of the argument in this paper is that imperfection of
human faculties and political necessity combine to form imperfect
constitutions. He observes that even in the natural sciences boundaries
between theoretically drawn categories are blurred. Like Aristotle before
him, he argues that human sciences, such as the science of
Government, are even less exact than the natural sciences. Not only
are the tasks of political science weighty the balancing of competing
goods but the subject matter is complex. This science involves the
study of human activity, where the subjects themselves are imperfect
and their language, through which the conceptions of men are
conveyed to each other, is imprecise. But, Publius explains, even if a
perfect constitution could be designed, practical considerations must be
taken into account. Certain theoretical niceties that may be possible in
an imagined state are just not possible in a real one. Therefore, the
[Constitutional] Convention must have been compelled to sacrifice
theoretical propriety to the force of extraneous considerations
(37M:185). In short, Publius acknowledges that constitutional
imperfections are inevitable and stem from two sources: an imperfect
science of politics and political necessity.
The irregularities of the ratification scheme fall under the rubric of
political necessity. If we look again at 39M, we can read Publius
description of the ratification procedure on a different level. His careful
phrasing allows us to interpret the passage in a way that closes some of
the gaps between theory and practice, although to do so we must ignore
the emphasis he places on certain words. This is the way Publius may
have intended future readers (or his contemporaries who were not

A Popular Founding


focused on states rights) to interpret his explanation. If we look a

little earlier in the same paragraph quoted above, Publius also says the
On examining the first relation, it appears on one hand, that
the Constitution is to be founded on the assent and
ratification of the people of America, given by deputies
elected for the special purpose; but on the other, that this
assent and ratification is to be given by the people, not as
individuals composing one entire nation; but as
composing the distinct and independent States to which
they respectively belong. (39M:196 emphasis mine)
The key phrase here is assent and ratification of the people of America,
given by deputies elected for the special purpose. Notice his subtle
reference to the people of America and his point that it is not the
legislatures of the states who decide on ratification but special deputies
elected by the people. In the next paragraph, where Publius examines
the decision rule for ratification to demonstrate the federal nature of the
founding, he, nonetheless, repeats that the founding decision is referred
directly to the people of the states, not to their governments:
It [ratification] must result from the unanimous assent of
the several States that are parties to it, differing no otherwise
from their ordinary assent than in its being expressed, not
by legislative authority, but by that of the people
themselves. (39M:196 emphasis mine)
In 40M he admits that the convention have departed from the tenor of
their commission, by report[ing] a plan which is to be confirmed by
the people rather than the legislature, and he notes that there has been
little objection to this plan (40M:203). In 43M Publius again refers to
the role of the people:
This article [defining the procedure for ratification] speaks for
itself. The express authority of the people alone could
give due validity to the Constitution. (43M:227)


The Federalists Vision of Popular Sovereignty

He does not even mention the role of the states here. The result, then,
is something more than a confederation or a league but less than a
consolidated government.
What Publius emphasizes in 39M for his contemporaries is the
federal character of the foundation of the national government. What he
says to his future readers, but does not emphasize, is that the people of
the various states, not their governments, serve as the first foundation
of that government. Therefore, the founding is both popular, though
indirect, and federal, though directed by the sovereigns themselves, not
their governments. At a state level, the procedure conforms to the
requirements of compact theory: a majority determines the constitution
of the whole. At a national level the procedure conforms to the federal
principle in that no state becomes a party to the compact without its
consent. This variation on a popular founding becomes the basis for
the principle of federalism (as we now understand it) a principle born
of necessity but which is widely acknowledged to be one of the most
important innovations to emerge from the Philadelphia convention.
Publius figures that his future readers will understand, as have
philosophers from Aristotle to Montesquieu, that the constitutional
design must suit the people. The problem is that his explanation of the
ratification procedure leaves the issue of sovereignty unresolved. He
leaves the interpretation open to the reader.
The other major departure from compact theory in the ratification
procedure lies in its potential for negating the first stage of the
compact the creation of a people in the process of creating the
political institutions. Recall from the earlier papers Publius plea to
maintain the union, presumably intact. However, the ratification
scheme for the proposed constitution allows the union to be reduced in
size by as many as four states: The ratification of the conventions of
nine States shall be sufficient for the establishment of this
Constitution between the States ratifying the same (as quoted in

A Popular Founding


It seems that Publius is of two minds. On the one hand, he

stresses the dangers of disbanding or subdividing the union (see
Chapter Two). On the other, he defends the possibility of voiding the
original compact not just the government and replacing it with a
new one.
Does Publius really think that the exclusion of as many as four
states will leave the union unscathed?21 Probably not. The very act of
authoring the Federalist essays suggests the opposite. Moreover, the
manner in which he defends the ratification provision suggests only
that he accepts the possibility of a slight diminution of the union, and
this is for pragmatic reasons. Publius defends the possible decrease in
the size of the union in three ways, but he never really acknowledges
that this act negates the initial, and supposedly inviolable, stage of the
compact the creation of the people.
First, Publius contends that the provision reflects an exercise in
prudence. To require the participation of all states would subject the
fate of the majority to the whims of a minority of states, and everyone
knew that there was at least one rogue state that probably would have
obstructed any agreement. In one particular, he notes, it is
admitted that the convention have departed from the tenor of their
commission. Instead of reporting a plan requiring the confirmation of
the Legislatures of all the States, they have reported a plan which is to
be confirmed by the people, and may be carried into effect by nine
states only. Although he concedes this objection, [is] the most
plausible, he also points out that it has been the least urged in the
publications which have swarmed against the convention. He then
surmises that the forbearance must be due to the absurdity of
subjecting the fate of 12 States, to the perverseness or corruption of the
thirteenth (40M:203).
Publius goes on to explain (to his future reader?) that a previous
example exists of inflexible opposition given to a measure approved
and called for by the voice of twelve states, comprising 59-60ths of the
people.22 This example remains still fresh in the memory and
indignation of every citizen who has felt for the wounded honor and
prosperity of his country (203). He reiterates this point a few papers
later, concluding that to require unanimous agreement would have


The Federalists Vision of Popular Sovereignty

marked a want of foresight in the Convention, which our own

experience would have rendered inexcusable (43M:227).23
Second, Publius defends the construction of the ratification
provision by invoking first principles, saying that the justification lies
in the absolute necessity of the case; to the great principle of selfpreservation; to the transcendent law of nature and of natures God,
which declares the safety and happiness of society are the objects at
which all political institutions aim, and to which all such institutions
must be sacrificed (43M:228).
Third, to justify further the construction of the ratification
provision, Publius argues that the previous compact (or does he mean
the second stage thereof?), the Articles of Confederation, rests on a
flawed foundation, which renders it invalid.
He contends that in
many of the States, it had received no higher sanction than a mere
legislative ratification and, therefore, can pretend to no higher
validity than a league or treaty between parties (43M:228). Here he
seems, conveniently, to forget his previous remarks concerning the
inextricable bond of the people of America, knit together as they are
by so many chords of affection . . . [and] the kindred blood which
flows in the veins of American citizens (14M:66). In truth, though,
the Constitution along with its Preamble could be considered an
entirely new compact. The procedure that installs the Constitution has
the potential to create a new civil society consisting of from nine to
all thirteen of the original states as well as new political institutions.
Given that a new compactual arrangement is a possible outcome of the
ratification process, the unanimity rule, which requires the assent of all
parties who are to be governed by the Constitution, is essential
theoretically as well and practically.
The wonder is that Publius has been challenged so seldom on his
treatment of this issue, either by his contemporaries or, later, by
historians and political theorists. Aside from Calhoun and work
relating to his, seemingly little scholarly attention has been focused on
this point. Publius and the Constitution itself are probably saved by
the fact that the diminution of the union never actually occurred, at
least at the founding stage. By November, 1789, all states except

A Popular Founding


Rhode Island had ratified the Constitution, and by May, 1790, Rhode
Island had come on board. Furthermore, the very publication of The
Federalist Papers, which were addressed to the people of New York
but widely circulated in Virginia and other states, suggests that
Publius, at least, saw the need for keeping as much of the union
together as possible. Nonetheless, the construction of the ratification
provision did strengthen the case for both nullification and secession in
the next century.24
What we learn from Publius application of social compact theory to
the American situation is that the first and second stages of the
compact are tightly intertwined in a way more suggestive of Hobbes
theory than of Lockes. That the boundaries chosen to define civil
society can affect the longevity of the institutions and that the
boundaries of the union can be altered in the process of installing its
political institutions demonstrate this. The implication is that even the
double bond of affection and self-preservation, which supposedly
supplies the glue that unifies civil society, is not so durable as one
might imagine.
In his discussion of the second stage of the compact, Publius
reveals that the social compact itself revolves around political realities.
These realities contribute to Publius refinements in the social compact.
In this compact the people actually express their consent, not just for
some vague delegation of political power but also for the founding of
their own political institutions. Publius seems to comprehend that the
peoples involvement in their own founding has a stabilizing effect and
enhances the probability of an enduring national government. He also
recognizes the symbolic value of the popular founding and stresses the
uniqueness and historic significance of the enterprise. Clearly, he
realizes that the founding event and the founding document supply the
symbols to nurture a further patriotic bond among the people. In his
words: This idea will add the inducements of philanthropy to those of
patriotism to heighten the solicitude, which all considerate and good
men must feel for the event (1H:4). Finally, Publius understands that


The Federalists Vision of Popular Sovereignty

political institutions must be designed to take into account the

particular situation of the society they are meant to serve. Put another
way, the constitution must suit the people.
Still, the actual ratification provision, which provides for a
deviation from a national ratification procedure and establishes a
precedent for states to opt out of the compact, also contains the seeds
for the dissolution of the union.


A Continuing Compact
The Rationale

If we stopped here, it would be evident that Publius had significantly

deepened our understanding of the social compact through his
commentary on the American model, but his observations on this
subject are not yet complete. In fact, Publius introduces a vital third
element to the social compact that transforms it from a one-time event
into a continuing process. In his model, the people of each succeeding
generation are guaranteed a continuing role in the social compact
through an amendment provision in the Constitution, certain
flexibilities in other provisions, and political institutions that are
wholly popular. Although Publius does not specifically refer to a
continuing compact, as such, his description of the American compact
emphasizes its dynamic and progressive nature.1
While he presents the Constitution as a means of alleviating the
very real problems of the 1780s, Publius also emphasizes its
durability. Evidence of its prospective orientation is found in a
number of provisions within the Constitution itself that anticipate
future events2 and also in Publius commentary in The Federalist. A
rough indication of the extent of Publius concern with the future can
be obtained by examining his word usage. For instance, he uses the
words future/ futurity forty-one times in twenty-nine of the papers
and the word posterity in an additional four. In each case these
words appear within the context of a prospective discussion of the
Yet Publius realizes that the future is filled with unknowns. He
knows that while some situations are predictable and can be planned for
such as the diversification and growth of civil society through the


The Federalists Vision of Popular Sovereignty

expansion of national borders others are not. Furthermore, he expects

that the science of politics will advance and that future generations,
guided by experience, will make corrections and improvements to the
Constitution. Therefore, it is important that its design allow for some
flexibility and even amendment. Still, Publius recognizes that too
much mutability in a constitution can be destabilizing. He claims that
the design of the proposed constitution strikes a delicate balance
between constancy and improvement so that public esteem for it is
preserved over time. The Constitution, therefore, is best viewed as a
work in progress whose guardianship is placed in the hands of each
succeeding generation. This view transforms the static compact of the
natural rights theorists into a dynamic and progressive undertaking.
The idea of continuity endows the compact with an added measure of
durability as it opens up participation in it to future generations.
Publius vision of a dynamic and progressive compact rests on
three foundations: (1) the rights and duties of the popular sovereign, (2)
a view of human nature that sees human institutions as imperfect but
improvable, and (3) republican principles.
In the last chapter we saw that the ratification provision posed some
rather thorny theoretical issues relating to the foundation of the
government. Once again, Publius is bedeviled by the ratification
procedure, but the problems this time, two in particular, are of a
different sort.
First, the Constitution under consideration by the
American people is offered as a replacement to an already existing
government. Compact theories, either as articulated by natural rights
theorists or as practiced in America, do not provide a peaceful means
for accomplishing a transfer of power from one set of governmental
institutions to another. Second, the usual justification for rejecting a
government the reason given in the Declaration of Independence for
the break with Britain: abuse of power is missing in this case.
Instead, the opposite situation exists; Publius claims that the existing
government lacks sufficient political authority to carry out its
functions. To his credit, he does not skirt these issues. In addressing

A Continuing Compact: The Rationale


them, Publius lays the basis for a sovereignty that is active and
continuous, rather than held in reserve as in Lockes plan.
Deliberation, Not Populism
The first problem, replacing one government with another, poses the
greatest theoretical and rhetorical challenge. Publius deals with it
on two levels. He shows that the constitutional design mitigates the
issue in the future, as we shall see in a moment. It is the near-term
problem of how to legitimate the rejection of the old and the
institution of a new government that is most troublesome. Realizing
that the transfer of power from one government to another constitutes a
revolution, regardless of how peaceful it may be, Publius treads
carefully. He does not want his arguments to be used to further
inflame the rebellious activity already taking place in some states or,
later, to justify similar actions against the young nation (if and) once it
is established under the Constitution. Therefore, Publius does not rely
exclusively on the majority principle, as Locke does, to legitimize this
transfer of power. Besides, he does not yet have the majority on his
Instead, Publius sidesteps the majority rights rationale to some
extent by stressing the federal nature of the ratification process, which
involves majority decisions at a state level, but which renders the
Constitution operative over only those states that ratify it (see Chapter
3). Still, he realizes that the long-term viability of the new
government relies on popular consent and, ultimately, on the approval
of a solid majority of citizens in the nation. Publius works through
this difficulty by making the distinction between a deliberative
majority, which carries the banner of legitimacy, and an impassioned
one, which poses the threat of anarchy or tyranny.
In the very first Federalist essay, Publius begins making the case
for deliberative consent. He informs his readers that they are called
upon to deliberate on a new Constitution for the United States of
America. He further pronounces that they are to serve as the example
as to whether societies of men are really capable or not, of establishing
good government from reflection and choice (1H:4). For his own
part, he claims to freely admit to his convictions. At the same time,


The Federalists Vision of Popular Sovereignty

he promises to lay before [the people] the reasons for which they are
founded, noting that his arguments are open to all, and may be
judged by all (1H:6).
In later essays he offers his fellow citizens his full confidence
that the good sense that has so often marked [their] decisions [in the
past], will allow them their due weight and effect in this case
(14M:66). But he also reminds them of complaints . . . by virtuous
citizens that the state governments are too unstable; that the public
good is disregarded in the conflicts of rival parties; that measures are
too often decided, not according to the rules of justice, and the rights
of the minor party; but by the superior force of an interested and
overbearing majority (10M:43). Publius makes the contrast between
deliberative and impassioned decisions explicit throughout The
Federalist. By proceeding in this manner, he reinforces the precedent
established in the Declaration of Independence, which requires a
thorough accounting of the situation and justification for the
revolutionary action to be taken. The debate on ratification is an
important part of this deliberative process. Publius objective is to
make a clear distinction between a justifiable revolution founded on
informed and reasoned consent of the people and mere rebellion
fomented by a passionate and probably factious majority.
The Justification for a Quiet Revolution
Publius accepts Lockes premise that the original right of self defense,
which is paramount to all positive forms of government . . . may be
exerted against usurpations of the national government (28H:140). He
allows that [s]afety from external danger is the most powerful director
of national conduct (8H:34). Indeed, Publius refers to safety or
public safety as a key function of government, either explicitly or
implicitly, fifty-five times in thirty-three of the Federalist Papers.
And, like Locke, he considers the right of the people to revolt to secure
their safety a possible deterrent to usurpations of power by
governmental officials. Publius notes that [t]he improbability of the
attempt may be satisfactorily inferred from this single reflection, that it
could never be made without causing an immediate revolt of the great
body of the people (60H:309).

A Continuing Compact: The Rationale


However, his interpretation of original rights goes beyond Locke's.

For Publius, safety is an important goal of government, but not the
only one. In at least sixteen of the thirty-three papers, safety is coupled
with another goal as an end of government. The most common pairing
is with happiness. This deliberate coupling of safety and happiness
occurs in six of the essays, and both words are mentioned as ends of
government in a further eight papers.6 In an additional thirteen papers
happiness appears as the only end of government, or it is coupled with
something other than safety (such as prosperity and liberty).7 One
eventually reaches the conclusion that happiness is as important a goal
as safety in the American model of civil society. Indeed, just as
Jefferson does in the Declaration of Independence, Publius elevates
happiness to the status of a natural right. It is the transcendent law of
nature and of natures God, which declares the safety and happiness of
society are the objects at which all political institutions aim, and to
which all such institutions must be sacrificed (43M: 228).
The pairing of safety and happiness is not something new in
American democratic theory. It is also found in some of the early state
constitutions, including those of Virginia (1776), Massachusetts
(1776), and Pennsylvania (1776). In fact, the concern with happiness
in America can be traced back to 1682. In the Pennsylvania Charter of
Liberties and Frame of Government, happiness appears as the only
end of government in the first item of the Charter.8
However, Publius departure from Locke lies not so much in the
extension of the ends of government beyond safety, but in the nature of
that extension. Locke, too, seems to move beyond self-preservation to
include certain quality-of-life goals in the foundation for his compact,
at least in the early part of his Second Treatise, but his quality-of-life
measures are focused primarily on the individual.
Lockes compact
emerges from a concern with property rights and the inconvenience to
the individual of not having a common judge. His is essentially an
invisible hand type of theory, where the communitys benefits are
incidental to the individuals pursuit of his own economic interest.
Moreover, Lockes emphasis on individual rights comes into even
clearer focus in his justification for forcible removal of a government
by the people. Lockes concern is with the arbitrary use of power,


The Federalists Vision of Popular Sovereignty

which leaves the individual in a worse state than the one he contracted
out of in order to form civil society.9
The difference between Publius and Locke is one of emphasis.
Lockes concern is with establishing individual rights and the
theoretical boundaries that respect those rights. Publius accepts
Lockes premise as a given and moves beyond it to concentrate on the
conditions that are required for a viable community. For Publius,
happiness is oriented at least as much toward the community as toward
the individual. This is apparent in the way he uses the term. Most of
the time he refers to happiness in a collective sense (29 of 41
happiness of the people
public happiness
political happiness
national happiness
mutual happiness


For Publius, then, happiness refers to some sort of mutual condition or

to the general welfare rather than to the felicity or well-being of
individuals within the society. The key is that it seems to be a plural
or shared happiness that does not take into account each individuals
vision of the good life.
Publius concentrates on the importance of a thriving community
and the role of government in bringing it about.
He portrays the
national government as a positive, yet limited, force in society.11 He
stresses that the activities of the national government are to be directed
to the general political interests of the nation not to every species of
personal and private concerns (84H:443). These activities include
large-scale projects and provide for infrastructure,12 national defense,
national financial stability and prosperity, and national prestige in the
international community.13 Unlike the ancient models, Publius
government is not designed to make men better, but rather to make the
community a place where individuals can thrive (8H). This uniquely
American approach to government and the common good is perhaps

A Continuing Compact: The Rationale


best described by Tocqueville as self interest rightly understood.

However, Publius goes still further. In his model the community
enterprise also has value in its own right, quite apart from any tangible
benefits that flow to the individual from a thriving community. This
community of spirit can be detected in Publius portrayal of the
American mission to demonstrate the viability of the modern project
and to save the world, at least the American continents, from European
Why is Publius expansion of the common good so important?
Simply this: it provides the basis for justifying the transfer of power
from the government of the Articles of Confederation to the new
government of the Constitution. Lockes definition of political power
stipulates that all actions by a government be only for the public
good, yet in his scheme the forcible removal of a government by the
people is justified only when a government attempts to overreach its
power and threatens individual persons and property.15 He does not
address any other form of danger to the public beyond the infringement
on private rights, but Publius does. This is not to say that Publius
ignores the Lockean rationale. Indeed, the proposals to strengthen the
national government relate in part to activities in the states that have
raised the alarm for private rights, which are echoed from one end of
the continent to the other (10M:43).
However, Publius extends the justification for abolishing a
government and replacing it with a new one to include threats to the
common good. He argues that the main reason for installing a new
American constitution is that the national government under the
Articles is too feeble to provide adequately for individual safety or
public happiness. Indeed, he observes: We may indeed with propriety
be said to have reached almost the last stage of national humiliation.
There is scarcely anything that can wound the pride, or degrade the
character of an independent nation, which we do not experience
(15H:73-74). Publius illustrates some of the ways the common good is
threatened with the following questions:
Do we owe debts to foreigners and to our own citizens
contracted in a time of imminent peril, for the preservation of


The Federalists Vision of Popular Sovereignty

our political existence? These remain without any proper or
satisfactory provision for their discharge.
Have we valuable territories and important posts in the
possession of a foreign power, which by express stipulations
ought long since to have been surrendered? These are still
retained, to the prejudice of our interests not less than of our
Are we in a condition to resent, or repel the aggression? We
have neither troops nor treasury nor government (I mean for
the Union).
Is respectability in the eyes of foreign powers a safeguard
against foreign encroachments?
The imbecility of our
Government even forbids them to treat with us:
ambassadors abroad are the mere pageants of mimic
Is a violent and unnatural decrease in the value of land a
symptom of national distress? The price of improved land in
most parts of the country is much lower than can be
accounted for by the quantity of waste land at market, and can
only be fully explained by that want for private and public
confidence, which are so alarmingly prevalent among all
ranks and which have a direct tendency to depreciate property
of every kind.
Is private credit the friend and patron of industry? That most
useful kind which relates to borrowing and lending is reduced
within the narrowest limits, and this still more from an
opinion of insecurity than from the scarcity of money. (15H:

Publius then sums up the political condition of the union with the
question: what is there of national disorder, poverty, and
insignificance that could befall a community so peculiarly blessed with
natural advantages as we are, which does not form a part of the dark
catalog of our public misfortunes? (15H:73). Throughout the early

A Continuing Compact: The Rationale


papers, Publius despairs that this instability threatens any chance that
Americans may have to fulfill their destiny as a great nation,17 and at
one point he warns that whenever the dissolution of the Union
arrives, America will have reason to exclaim, in the words of the
The Role of the Convention
Publius observes that the inefficacy of the subsisting Federal
Government established under the Articles of Confederation was
evident to the people of the union and its political leaders alike. The
obvious deficiencies of the existing government are what led to the
Philadelphia Convention in 1787. It was at this meeting, later to be
dubbed the Constitutional Convention, that the proposed constitution
was drafted. As Publius describes the situation:
This intelligent people . . . still continuing no less attached
to union, than enamored of liberty . . . observed the danger,
which immediately threatened the former and more remotely
the latter; and being persuaded that ample security for both,
could only be found in a national Government more wisely
framed, they, as with one voice, convened the late
Convention at Philadelphia, to take that important subject
under consideration. (2J:9)
Then, from the perspective of the Convention delegates:
Let us view the ground on which the Convention stood. It
may be collected from their proceedings, that they were
deeply and unanimously impressed with the crisis which had
led their country almost with one voice to make so singular
and solemn an experiment, for correcting the errors of a
system by which this crisis had been produced; that they were
no less deeply and unanimously convinced, that such reform
as they have proposed, was absolutely necessary to effect the
purposes of their appointment. It could not be unknown to
them, that the hopes and expectations of the great body of
citizens, throughout this great empire, were turned with the
keenest anxiety, to the event of their deliberations. (40M:204)


The Federalists Vision of Popular Sovereignty

Yet Publius also tells us that the convention held at Philadelphia

[was for] the sole and express purpose of revising the articles of
confederation, and reporting to Congress and the several Legislatures,
such alterations and provisions therein, as shall, when agreed to in
congress, and confirmed by the States, render the Federal Constitution
adequate to the exigencies of government and preservation of the
Union (40M:201 italics his). Thus, we find the purpose of the
convention was to repair, not to replace, the existing government.
At this point Publius attempts to justify the role of the
Convention in transforming its original mandate to amend the Articles
of Confederation into a recommendation to replace the government
altogether. He starts by stating the objectives set forth by Congress
for the Convention: (1) to establish . . . a firm national government .
. . as would be adequate to the exigencies of government and the
preservation of the Union and (2) to achieve these goals by
alterations and provisions in the articles of confederation. The
problem, Publius explains, is that these objectives are actually
incompatible, and in such a situation plain reason and legal axioms
dictate the less important should give way to the more important
part. To put it bluntly, the means should be sacrificed to the end,
rather than the end to the means. So, he reasons, it only has to be
determined whether it was of most importance to the happiness of the
people of America, that the articles of confederation should be
disregarded, and an adequate government be provided, and the Union
preserved; or that an adequate government be omitted, and the articles
of confederation preserved. Further, he contends that the choice is
obvious: the establishment of a government, adequate to the national
happiness, was the end at which these articles themselves originally
aimed, and to which they ought, as insufficient means, to have been
sacrificed (40M:201). Publius even quotes the Declaration of
Independence to support this argument, saying: They [the convention
delegates] must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid
adherence in such cases to the former, would render nominal and
nugatory, the transcendent and precious right of the people to abolish

A Continuing Compact: The Rationale


or alter [sic] their governments as to them shall seem most likely to

effect their safety and happiness (40M:204).19
Recall Lockes assertion that the power of the people can never
take place till the government be dissolved. This also seems to be the
case in 1780s America, either because the foundation of the Articles of
Confederation is so fundamentally flawed that this earlier constitution
is not alterable, as Publius alleges, or because the unanimity required
in its amendment provision makes the process virtually impossible.
Whatever the real reason is, ratification of the Constitution would, in
fact, mean that the people were dissolving an old government and
replacing it with a new one.
The Long-Term Solution: Alteration, Not Revolution
Obviously, Publius would like to avoid a similar trauma in the future.
He claims that experience with the Articles has made it possible to
draft a constitution that avoids the most serious errors of the former
government. The proposed constitution would rest on a proper
foundation consent of the people and it would offer a practicable
means of altering a government without having to abolish it first.
These features are essential in a constitution that is to be a binding and
enduring foundation for government. Publius contends that the
amendment procedure is both safe and realistic; it guards against that
extreme facility which would render the Constitution too mutable; and
that extreme difficulty which might perpetuate its discovered faults
(43M:227). Moreover, the provisions prescription for an extralegislative procedure for accomplishing constitutional change is
intended to secure a role for the people while furthering a deliberative
process (78H:403). The amendment provision, then, provides the
practical basis for the dynamic and progressive compact.
Publius is part realist and part optimist. His realism stems in some
degree from his recognition that the future is largely unknown. Some
events can be anticipated and planned for; others cannot. He is also
well aware of human imperfections. His optimism is evident in his


The Federalists Vision of Popular Sovereignty

belief in progress. Publius considers the Constitution an improvement

over past models and expects it will be improved further over time.
He entrusts these improvements to future generations. After all, whom
else can he trust? Like Machiavelli, Publius is mindful of both the
beastly and the divinely inspired capacities of the human spirit.
Therefore, he plans for the worst and hopes for the best.
This combination of realism and optimism is reflected in Publius
political philosophy. He has a modern orientation to politics to the
extent that: (1) he takes into account the imperfection of the human
species and, by extension, its instruments; (2) he sees the potential
for improving those instruments and, therefore, the human condition;22
(3) he views government as an artifice built by human beings to
achieve specific goals for the benefit of the people;23 and (4) he
recognizes that the people have neither the time nor the inclination to
spend their entire lives doing the business of government, and it is not
advantageous for society that they do so.24 Still, his vision of politics
also consists of elements that cannot really be characterized as modern
or liberal. This is the part of his model that recognizes the social
nature of man and the capacity of that nature to stimulate the better
parts of the human spirit.25
Combining these perspectives produces a view of human nature
that is difficult to classify. Publius takes into account both human
behavior in aggregate (probabilities) and the capacity for individual
excellence (possibilities). In his model, human institutions take on a
broader role than in the earlier natural rights theories. Publius, perhaps
the first organizational theorist, contends that these institutions can be
crafted to offer the possibility, if not for perfecting their creators, at
least for bringing the better parts of the human character to the fore in
the public forum.26 Publius perspective produces a model that might
be considered a step down from the ideals of the ancients, but it is also
a step up from the materialism of the natural rights theorists.
The catch is that in this model, human institutions in general, and
those created by the proposed constitution in particular, are necessarily
flawed, so they may not work as their designers intend. Such flaws
had become evident in the Articles of Confederation, but only after

A Continuing Compact: The Rationale


experience had been gained with the institutions it produced. In the

case of the Articles, Publius argues, the flaws are of such a fundamental
nature that the institutions have to be replaced.27 But he also contends
that sufficient learning has taken place from this experience to insure
that the institutional structure of the proposed constitution is more
fundamentally sound. Imperfect though it may be, only TIME and
EXPERIENCE will bring it to perfection (85:453-454). Therefore, if
the Constitution is to be both durable and perfectible, it must also be
Republican principles constitute the third foundation of the American
continuing compact. Publius takes the view that no other type of
regime would be acceptable to or, indeed, appropriate for the American
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 that honorable
determination, which animates every votary of freedom, to
rest all our political experiments on the capacity of mankind
for self-government. If the plan of the convention therefore be
found to depart from the republican character, its advocates
must abandon it as no longer defensible. (39M:194)
He explains that republicanism is something more than the outcome of
the second stage of the social compact; it is a condition of the compact
itself just as essential as safety and happiness. Publius considers
republican principles to be foundational because they belong to the set
of societal goals that activated the compacting process in America in
the first place. In prior versions of the social compact, Hobbes and
Lockes, republican principles only come into play during the second
stage of the compact and then only if a popular form of government is
As Publius interprets the American model, however,


The Federalists Vision of Popular Sovereignty

republican principles serve a dual role, constituting both ends (in that
they encompass the shared political values of society itself) and means
for achieving the ends of that society. The republican principles
reflected in the constitutional provisions, then, are both a reminder of
the shared goals of the American people and a guarantee of continued
republican government to future generations of Americans.
Publius is specific about what he means by republican
government although, like other aspects of his theory, it is necessary to
piece together the theoretical elements from discussions of practical
issues scattered throughout The Federalist. He discusses five areas in
which American republicanism differs from what was then the usual
understanding of the term. First, he makes the distinction between a
republic and a democracy. Second, he demonstrates that there are
important differences between a large and a small republic. Third,
Publius differentiates between the wholly popular republic proposed
by the Constitution and the mixed regime, which until then had served
as the republican ideal. Fourth, he makes a distinction between the
deliberative will of the people and popular opinion taken as a snapshot.
Finally, he demonstrates that the peoples role in the American republic
is a dual one in that they serve as citizens of two entities: the union
and their respective states.
The Advantages of a Republic Over a Democracy
In two papers, 10M and 14M, Publius specifically addresses the
difference between a democracy and a republic. The distinction, he
claims, is an important one because the terms are often mistakenly
interchanged. In the former the people meet and exercise government
in person . . . [a] democracy consequently will be confined to a small
spot; in the latter they assemble and administer it by their
representatives and agents . . . [A] republic [therefore] may be extended
The distinction Publius makes
over a large region (14M: 63).
between democratic and republican regimes continues to have relevance
Some twentieth century scholars have characterized The Federalist,
the framers of the Constitution, and the Constitution itself as antidemocratic (in the extreme view) and not democratic enough (in more

A Continuing Compact: The Rationale


moderate circles).29 The fact is Publius is no democrat. He makes this

clear throughout The Federalist.30 In his day the term democracy
did not have the positive connotations it has today.
throughout history democracy was equated with mob rule and
instability, in large measure due to the temporary and turbulent
examples of ancient Greek democracies (the real regimes, not the ideal
ones posited by philosophers).31 Moreover, this view was reinforced for
Publius contemporaries by unsettling conditions that existed in some
of the states following the War of Independence, including the revolt
of a part of the State of North Carolina the late menacing
disturbances in Pennsylvania and the actual insurrections and rebellions
in Massachusetts (6H:27).
In the classical view, democracy is a temporary condition. Like
other types of regimes (monarchy and aristocracy), democracy is
considered degenerative. The special problem with democracy is that it
is but one step removed from anarchy or tyranny, so it tends to
deteriorate rapidly. Publius discusses two forms of tyranny identified
with democracy, with the first often leading to the second. He
observes that there is a form of democratic tyranny that results when a
factious majority places its interests above public good and private
rights. In the short term, this situation, which produces oppression of
the minority, makes a mockery of justice (10M). In the longer term, it
destroys the democracy itself. Publius observes that when conditions
are such that the stronger faction can readily unite and oppress the
weaker, anarchy may as truly be said to reign, as in a state of nature.
Then even the stronger individuals are prompted by the uncertainty of
their condition to submit to a government which may protect the weak
as well as themselves. This newly installed government is most
likely to consist of a will independent of society itself, that is, a
person not subject to popular scrutiny a potential tyrant (51M:269).
Publius also points out that tyranny can be the outcome of the normal
democratic process, as, for example, when some devious politicians
pay obsequious court to the people, commencing Demagogues and
ending Tyrants (1H:6).32 Because tyranny is always so close at hand,
democracies in history have tended to be short-lived.
Although Publius mistrusts democracies, he praises republics,
especially the American version. In his scheme representation, which


The Federalists Vision of Popular Sovereignty

is the primary feature that distinguishes republics from democracies,

has the capacity to refine and enlarge the public views, by passing
them through the medium of a chosen body of citizens whose wisdom
may best discern the true interest of their country and whose patriotism
and love of justice, will be least likely to sacrifice it to temporary or
partial considerations (10M:47). However, he laments the fact that
small republics are often fraught with the same problems as
democracies. When elected officials are too closely aligned to their
small, relatively homogeneous constituencies, they are likely to reflect
factious tempers or local prejudices which lead to the pursuit of
private interests rather than the common good (47).
The Advantages of a Large Republic
In Number 10M Publius stands conventional wisdom on its head as he
explains why large republics offer some significant advantages over
smaller ones. He considers the American republic, provided for in the
Constitution, to be especially laudable because it remedies the effects
of the age-old republican diseases of faction and instability,
substituting, instead, a stable and just republican regime. Size and
diversity are key to this transformation. Size is a factor because,
although the small republic provides a rough filter to separate private
interests from public goods, the large republic further refines that filter
in two ways; it supplies both: (1) better men to represent the people
and (2) a finer filter. Largeness means more people, and, Publius
reasons, as long as the proportion of capable men remains constant and
the size of the legislative body stays within certain bounds, the large
republic will present a greater option, and consequently a greater
probability of a fit choice (10M:47). He also contends that larger
districts mean it will be more difficult for unworthy candidates to
practice with success the vicious arts, by which elections are too often
carried. Instead, the people in the larger electoral districts will be
more likely to center on men who possess the most attractive merit,
and the most diffusive and established characters (47).33
Largeness and diversity generally go together, and it is important
that the districts are large enough so that there is diversity of interests

A Continuing Compact: The Rationale


within districts as well as across districts.

This leads to a
circumstance principally which renders factious combinations less to be
dreaded (47). Publius reasons that in a diverse republic it is less
probable that a majority of the whole will have a common motive to
invade the rights of other citizens; or if such a common motive exists
it will be more difficult for all who feel it to discover their own
strength [because they are far apart], and to act in unison with each
other (48). Instead, the large, diverse republic forces majorities to be
built through the deliberative process. He figures that the consideration
of a variety of perspectives and the coalition building process required
to obtain a majority are more likely to result in policies that are
supportive of the general interest of the country than the interests of a
particular segment in it.
Publius considers the large, diverse republic an improvement over
a democracy or a small republic precisely because it creates some
distance between popular passions and private interests and the
activities of government. His praise of this distancing is a factor that
present day critics latch onto in their reproach of Publius and the
constitutional system he defends. However, such criticisms may not
follow Publius logic far enough. His detractors do not seem to take
into account the wholly popular nature of the government that
includes a popular founding, the distinction he makes between the
impulsive opinions of the people and their deliberative will, and the
opportunities for popular expression in a decentralized federal system.
A Wholly Popular Republic
Although Publius is no fan of populism, he praises the new
republicanism offered by the Constitution, which gives the people a
much broader role in their governance than was the case in any previous
republic, either real or imaginary:34
[E]ven in modern Europe, to which we owe the great principle
of representation, no example is seen of a government wholly
popular, and founded at the same time wholly on that
principle [as would be the case under the proposed
constitution in America]. If Europe has the merit of
discovering [representation] this great mechanical power in


The Federalists Vision of Popular Sovereignty

government, by the simple agency of which, the will of the
largest political body may be concentrated, and its force
directed to any object, which the public good requires;
America can claim the merit of making the discovery the
basis of unmixed and extensive republics. (14M:64)

As he points out, the American model not only rests on a popular

founding which contributes to a substantive strengthening of popular
sovereignty but the government itself is wholly popular, meaning
all elements are ultimately controlled by the people. Until this time the
mixed regime was considered the archetype of republican government
in theory and in fact. In the ideal, the mixed regime contained a
democratic (or republican) element, coupled with an aristocratic element
and/or a monarchical one. This mixed arrangement was posited as an
achievable ideal by Aristotle; it served as the basis of the Roman
empire; and it was praised by later theorists from Machiavelli to
However, Publius observes that there are few historical examples
of so-called republicanism even approaching this ideal. He explains
that an examination of regimes claiming to be republics reveals that the
democratic (or republican) element is often missing entirely, and he
concludes that if one seeks meaning in the application of the term by
political writers, to the constitutions of different States, no satisfactory
one would ever be found (39M:194). For example, Holland, in
which no particle of the supreme authority is derived from the people,
has passed almost universally under the denomination of a republic.
The same has been bestowed on Venice, where absolute power over the
great body of the people, is exercised in the most absolute manner, by
a small body of hereditary nobles (194). Moreover, in his discussion
of the British model, Publius hints that he does not consider the mixed
regime to be republican enough.
He observes that even the
government of England, which has one republican branch only . . . has
been placed on the list of republics (194).
Yet the British
government, which serves as Montesquieus living ideal, closely
approximates the theoretical exemplar of the mixed regime.
Publius realizes that the mixed regime does not really fit the
American situation, where society is much less rigidly stratified than in
For one thing, in America, property ownership was

A Continuing Compact: The Rationale


widespread. And while Publius admits to the presence of a landed

interest in the states, he also points out that the possession of different
types of property results in a divergence of interests, for example, a
landed interest that is distinct from a manufacturing interest, both of
which are distinct from a moneyed interest, and so forth (10M:45).
Furthermore, he notes that considerations other than property create
differences among men, including different opinions concerning
religion, concerning Government and many other points (44).
Reinforcing the notion that class, as such, is not the predominant
influence on American politics, he observes: It is notorious, that there
are often as great rivalships between different branches of the mechanic
or manufacturing arts, as there are between any of the departments of
labor and industry . . . (36H:173).35 Besides, Publius recognizes that
the mixed regime would be unacceptable to a people who were
accustomed to self-rule and who had recently fought a war to free
themselves from a king and parliament over whom they had no
control.36 In the American case, the people represent the only possible
source of power for all elements of the government.
The second part of The Federalist (Numbers 37-85) is devoted to
a defense of the republican character of the proposed government. In
these papers Publius fills in the details, explaining precisely what he
means by a wholly popular republic. In 37M and 38M Publius
addresses the popular founding. While we have already explored this
topic at length in Chapter Three, two points bear repeating here. One: a
popularly founded national government would be a historical novelty,
but one that Publius views as essential for the efficacy of that
government. Two: the ratification provision describes a process that is
both popular (though indirect) and federal (though activated through the
sovereign peoples of the states).
In 39M Publius explores the republican character of the
government itself, this time defining a wholly popular republic more
precisely as one which 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. Then Publius establishes the conditions essential to
such a government, which are that it be derived from the great body
of the society, not form an inconsiderable proportion, or favored class


The Federalists Vision of Popular Sovereignty

of it. In the American republic, the people is construed broadly

and inclusively not narrowly; otherwise a handful of tyrannical
nobles, exercising their oppressions by a delegation of their powers,
might aspire to the rank of republicans, and claim for their government
the honorable title of republic (39M:194-95 emphasis his).
Still, Publius specifies where some deviation from a direct tie to
the people is permissible. It is sufficient, he explains, for such a
government, that the persons administering it be appointed, either
directly or indirectly, by the people; and that they hold their
appointments by either of the tenures just specified [for a limited
period or during good behavior]. If the republican label could only be
attached to governments where all offices were attained by direct
election and restricted by limited terms, every government in the
United States, as well as every popular government that has been or can
be well organized or well executed, would be degraded from the
republican character, disqualifying all states in the union as well.
Besides, he explains, most respectable and received opinions agree
that members of the judiciary department are to retain their offices by
the firm tenure of good behavior (39M:195).
Notice that Publius very cleverly tailors his definition of
republican to fit the governmental structures already established by
the various states. Likewise, in the papers where Publius defends the
republican character of each of the branches of government (Numbers
52-83), comparisons to the state constitutions abound. Indeed, he is
not shy about pointing out cases where the national government is
By using
more republican in character than the state governments.
this strategy, Publius hopes to neutralize much of the criticism aimed
at the new constitution.
The Deliberate Sense of the Community
Publius does not rest here, but he informs his reader that the American
brand of republicanism has the capacity to distinguish mere public
opinion from the deliberative will of the people. According to his
account, the deliberative will of the people is a product of right reason,
and throughout the papers he differentiates popular passions and private

A Continuing Compact: The Rationale


interest from right reason and the public good.

He begins The
Federalist with an admonishment to the people of New York to
deliberate on the ratification of the proposed constitution with a cool
head: Happy will it be if our choice [to ratify or not] should be
directed by a judicious estimate of our true interests, unperplexed and
unbiased by considerations not connected with the public good
(1H:4). In later essays he refers to the deliberative will or
deliberative sense of the community. Publius makes clear that [t]he
republican principle demands . . . that the deliberate sense of the
community should govern (71H:369-70). He also points out that the
short-term opinions of the people, even in a republic, do not always
coincide with their long-term desires or interests:
As the cool and deliberate sense of the community ought in
all governments, and actually will in all free governments
ultimately prevail over the views of its rulers; so there are
particular moments in public affairs, when the people
stimulated by some irregular passion, or some illicit
advantage, or misled by the artful misrepresentations of
interested men, may call for measures which they themselves
will afterwards be the most ready to lament and condemn.
How exactly is this cool and deliberate sense of the community to be
found? Publius discusses four features of the constitutional design that
facilitate its discovery: 1) a large, diverse republic, 2) a deliberative
branch of the legislature, 3) the presidential veto, and 4) and an
independent judiciary.
Earlier in this chapter, we examined Publius argument that a
representative system in a large, diverse republic produces several
dividends, not the least of which is the potential for a deliberative
popular assembly. He reasons that there is more political talent
available to choose from in a large republic than in a small one, and
that the inclination of the people to seek out the best creates a dynamic
that supports deliberative decision-making. He further suggests that
the link between the people and their government does not stop at the
ballot box, but that the election process is only the beginning of a
relation between the House of Representatives and their constituents


The Federalists Vision of Popular Sovereignty

(57M:297). The fact that they have been distinguished by the

preference of their fellow citizens inspires a sense of duty in the
representatives and over time they earn the trust of their constituents.
Thus, [d]uty, gratitude, interest, ambition itself, are the chords by
which they will be bound to fidelity and sympathy with the great mass
of the people (57M:297). The relationship that develops enables the
representatives to act, in part at least, as trustees and educators of the
people. Their authority is not unbounded but it is significant so long
as they can justify their positions to their constituents who, at two-year
intervals, have the option to keep them in office or throw them out.
Publius concedes that the bonds between particular representatives
and their constituents may fail to develop or may be insufficient to
control the caprice and wickedness of man. But, he asks, are they
not all that government will admit and human prudence can devise?
Are they not the genuine and characteristic means by which Republican
government provides for the liberty and happiness of the people?
Because the House is the legislative body closest to the people, it
is the most vulnerable to popular passions. The Senate provides the
second line of defense in preserving the deliberative sense of the
community. The capacity of this body to serve as a buffer to such
passions stems from its smaller membership and the longer term of its
members. Publius reasons that in a small body each person is more
visible than in a larger one and therefore held to a higher standard of
accountability (63M:324). The longer term extends the period of
accountability. As a result, Senators are expected to take a longer-term
view of issues. As Publius puts it:
In these critical moments, how salutary will be the
interference of some temperate and respectable body of
citizens, in order to check the misguided career, and to
suspend the blow mediated by the people against themselves,
until reason, justice and truth, can regain their authority over
the public mind? (63M:325-6)
Here, we get a sense of how Publius envisions the political institutions
facilitating the discovery of the deliberative sense of the people. At

A Continuing Compact: The Rationale


first popular opinion may be guided by passion and misguided by

ignorance, but as the people acquire adequate information and are given
time to consider an issue fully, they tend to make the appropriate
judgment. Publius, like many of his Whig opponents, believes that
the people eventually will make the right decisions. However, he adds
delay to the decision-making process to provide the time needed to
cool popular passions and to educate the public before the final
decisions are made.39 Further, he observes that the Senate provides
the American people with what the Athenian people lacked, a
provident safeguard against the tyranny of their own passions
The presidency offers the third opportunity for the deliberative
sense of the community to reign over short-term infatuations of the
people and/or ill-considered or overreaching acts of the Congress. As
Publius explains it, presidential power to exercise a qualified veto rests
on the supposition that the legislature will not be infallible:
That the love of power may sometimes betray it into a
disposition to encroach upon the rights of the other members
of the government; that a spirit of faction may sometimes
pervert its deliberations; that impressions of the moment may
sometimes hurry it into measures which itself on maturer
reflection would condemn. 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. (73H:380)
Finally, when the congress and president together enact legislation
that violates the deliberative will of the people as reflected in the
Constitution, the people can challenge such legislation in court. That
is why Publius argues that judicial independence from the other
branches is so crucial. He defends the life-time tenure of judicial
appointments as promoting the necessary independence.40 He further
argues that judicial review is an essential means of protecting the
deliberative will of the people from usurpations of power by the
representatives of the people and from the temporary folly of the people
themselves. Publius observes that implicit in a limited constitution is


The Federalists Vision of Popular Sovereignty

the mandate that the legislature not serve as the constitutional judges
of their own powers because it is not . . . to be supposed that the
constitution could intend to enable the representatives of the people to
substitute their will to that of their constituents. The courts, he
contends, were designed to be an intermediate body between the
people and the legislature in order, among other things, to keep the
latter within the limits assigned to their authority (78H:403).
Furthermore, Publius maintains that the judicial role in preserving the
deliberate will of the people is important for the protection of private
This independence of the judges is equally requisite to guard
the constitution and the rights of individuals from the effects
of those ill humors which the arts of designing men, or the
influence of particular conjunctures, sometimes disseminate
among the people themselves, and which though they
speedily give place to better information and more deliberate
reflection, have a tendency in the meantime to occasion
dangerous innovations in the government, and serious
oppressions of the minor party in the community. (78H:404)
Publius presents the doctrine of judicial review as a narrow power. He
emphasizes that the court acts not as a super legislature but rather as a
guardian of the higher political laws, until and unless the people
choose to change them through the proper constitutional procedure
(78H:405). In this sense the court acts on behalf of the people by
holding legislative authority within its constitutional bounds. It is not
a question of a superiority of the judicial to the legislative power,
explains Publius. It only supposes that the power of the people is
superior to both (78H:403).
Furthermore, Publius denies
unequivocally that in evaluating whether a piece of legislation exceeds
the constitutional authority the judiciary would be disposed to
exercise [their] WILL instead of [their constitutional] JUDGMENT
(78H:404). The courts role is not so much to find but to preserve the
deliberative sense of the community as expressed in the Constitution.

A Continuing Compact: The Rationale


Popular Expression in a Federal System

The final feature of American republicanism is the federal principle,
as Publius refers to it. This principle recognizes two spheres of
government, each having its own distinct set of powers as well as some
powers that overlap. The people preside over both. Federalism is an
important element in American republicanism because the decentralized
aspects of the system provide avenues for popular expression that
extend well beyond those defined in the Constitution of the national
Federalism is both an ambiguous and complex concept that is
reflected in many subtle ways throughout the Constitution. Publius
explains one aspect of federalism when he refers to the national
governments jurisdiction [as] limited to certain enumerated objects,
which concern all the members of the republic. This leaves the state
governments free to extend their care to all those other objects, which
can be separately provided for . . . (14M:65),41 including the
administration of justice between citizens of the same state, the
supervision of agriculture and of other concerns of a similar nature . . .
He goes on to say that those things . . . which are proper to be
provided for by local legislation, can never be desirable cares of a
general jurisdiction (17H:84).42
Publius explains that the division of political power frees up
national politicians so that they might more effectively concentrate on
matters of general interest, such as [c]ommerce, finance, negotiations,
and war, that must be dealt with on a national level (17H:84). He also
observes that the division of political responsibilities between the
states and the national government is more than a political necessity; it
is a practical requirement. Indeed, he remarks that this division is so
useful that if the Constitution had abolished the state governments,
the general government would be compelled by the principle of selfpreservation, to reinstate them in their proper jurisdiction . . .
Publius points out that as the plan of the Convention aims only
at partial Union or consolidation, the State Governments would clearly
retain all the rights of sovereignty which they before had and which
were not by that act exclusively delegated to the United States


The Federalists Vision of Popular Sovereignty

(32H:156). His point is that the Constitution provides for both a

centralized national government and a decentralized system of state
Publius argument suggests that the proposed
constitution does not really infringe on the republican operation of state
governments. Quite the opposite, it supports local republicanism in the
long term through the provision that guarantees the continuing
republican nature of these state governments.44 The considerable
leeway given the states in the conduct of their affairs, along with a
guarantee of republican government in the states, means that the
opportunities for popular expression and participation extend well
beyond the specific provisions outlined in the national constitution.
Publius concept of a dynamic compact is built on three bases. The
first is the principle of popular sovereignty and the ultimate right of the
people to control the institutions that govern them. The second stems
from a view of human nature that recognizes the imperfection of human
beings and, by extension, their instruments, but that also appreciates
the human capacity for progress. By considering these bases together,
it becomes evident that Publius regards change, properly structured, as
a positive feature of a political system rather than anathema to stability.
The constitution must be flexible and amendable if it is to be both
durable and improvable. For him, a constitution is not merely a
product of a single founding but part of a continuing compact and,
therefore, belongs to the care of the people of all generations.
The third grounding on which the dynamic compact rests consists
of republican principles which, on one hand, are derived from popular
sovereignty and, on the other, limit it. Republican principles serve as
a self-imposed constraint on the sovereign in the sense that they
delimit the type of government that the sovereign can institute in
pursuance of the goals of civil society. At the same time, the
provisions in the Constitution that support republican principles serve
as a guarantee of the continued involvement of the people in the
operation of their government. The fact that these provisions are part

A Continuing Compact: The Rationale


of the higher political laws means that the people, present and future,
cannot be deprived of any of these republican guarantees by mere
legislative acts. Therefore, the republican nature of the government is
protected in a strong way into the future.

This Page Intentionally Left Blank


A Role for Future Generations

An Amendable and Flexible Constitution

Publius presents the Constitution as a praiseworthy product of an

assembly whose members understood the necessity of sacrificing
private opinions and partial interests to the public good (37M:186).
But he also admits to its imperfections. After all, a faultless plan was
not to be expected (37M:182) because [t]he erection of a new
government, whatever care or wisdom may distinguish the work,
cannot fail to originate questions of intricacy and nicety . . .
The fact that he can be so open about the possible shortcomings of
the Constitution is due to his portrayal of it as something other than a
fait accompli. Instead, he presents the Constitution as a living
document a work in progress. The Constitution, after all, is an
[T]he different parts of the United States are distinguished
from each other, by a variety of circumstances, which produce
. . . a variety of interests . . . The real wonder is, that so
many difficulties should have been surmounted; and
surmounted with a unanimity [of state delegations] almost as
unprecedented as it must have been unexpected. (37M:185)
The bottom line is that compacts which are to embrace thirteen
distinct states, in a common bond of amity and union, must as


The Federalists Vision of Popular Sovereignty

necessarily be a compromise of as many dissimilar interests and

inclinations (85H:451).
Still, the proposed constitution reflects the substantial progress
that has been made in the science of politics in modern times.1
Therefore, while the proposed constitution is imperfect, it is more
perfect than most and certainly any the revolution has produced
(85H:451). Furthermore, it is designed to accommodate whatever
further advances in the science of politics that future generations wish
to incorporate into it.
While Publius believes that the Constitution provides a solid
foundation for the young nation, he also views it as an unfinished
work. He points out that the framers of the Constitution had the
foresight to provide the people with an adequate means for
incorporating improvements into this set of higher political laws:
That useful alterations will be suggested by experience, could not but
be foreseen. It was requisite therefore that a mode for introducing them
should be provided (43M:227). The mode for instituting these
useful alterations is described in Article V of the Constitution:
The congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution,
or, on the Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all
Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by
Congress; provided that no Amendment which may be made
prior to the Year One thousand eight hundred and eight shall in
any Manner affect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal suffrage in the Senate.

A Role for Future Generations


Publius does not discuss the specifics of the amendment provision

at length in The Federalist, but what he does say on these matters is
important. First, he lays out the reasons that an amendment procedure
is necessary. In various essays Publius discusses the science of
politics and the improvements incorporated into the constitutional
design as a result of the advances in that science.2
However, in other
passages he points out the limitations of this human science and, like
Aristotle, reflects on how much more difficult it is to obtain precision
in political science than in the physical sciences.3
According to
Publius, in this new science of politics, experience is the teacher, the
oracle of truth (20M:101), the parent of wisdom (72H:375). The
key role that Publius grants to experience for illuminating truth is
reflected by his ninety-one usages of the word in fifty-two of the
Experience matters in the American model described by Publius
not only the experience of his generation but that of future generations
as well. As noted earlier, the proposed constitution is not presented
as a finished work but as a single solemn experiment, for the
correcting of the errors of a system [under the Articles of
Confederation] by which this crisis had been produced (40M:204).5
This frame of government is the product of knowledge gained from
past experience, and the assumption is that it will be continually
improved by the knowledge gained from future experience.
example, when Publius refers to the constitutional arrangements that
may be necessary to incorporate the northwestern frontier, he remarks
that the details must be left to those whom further discoveries and
experience will render more equal to the task (14M:65). Publius
addresses the issue more generally in 37M, which examines the
practical limits of the science of Government. He notes that the
novelty of the undertaking means that [the] most that the
Convention could do in such a situation, was to avoid the errors
suggested by the past experience of other countries, as well as of our
own; and to provide a convenient mode of rectifying their own errors,
as future experience may unfold them(37M: 182).6 And in his
concluding paper, Publius cites David Hume to support his contention
that [t]the judgments of many must unite in this work [of amending


The Federalists Vision of Popular Sovereignty

errors ]: 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 (85H: 453 emphasis his).
Notice the implicit assumption of progress in Publius discussion
of the proposed constitution. He expects that experience will point out
errors, which future generations will correct, and that the Constitution
will get better or more perfect over time. Thus, the involvement of
future generations in the compact not only insures the continued active
participation of the popular sovereign, but also is necessary for finetuning the Constitution and adapting it to future needs.
The notion of an amendment procedure does not originate with
this constitution. The 1776 Pennsylvania Constitution had one, and
so did the 1682 Pennsylvania Frame of Government before it. The
Articles of Confederation also contained such a provision, but it was
never used. Although the original purpose of the Philadelphia
Convention was to propose amendments to the Articles to strengthen
the national government, Publius claimed that the Articles were beyond
amending because of their flawed foundation.8
Publius considers the amendment provision in the proposed
constitution an improvement over the provision in the Articles in that
it accomplishes three important goals: (1) the procedure reinforces the
sovereignty of the people over their governmental institutions; (2) the
provision reflects the hybrid character of the proposed government in
that it contains both federal and national elements, and (3) it achieves
the crucial balance between an unalterable constitution and one that is
too mutable.
The Sovereigns Role in Amending the Constitution
Interestingly, it is not until the later essays (78H and 85H) that Publius
addresses the aspects of the amendment provision that reinforce the
sovereignty of the people. These discussions occur within the context
of Publius defense of the judicial branch and its role in distinguishing
between the deliberative will of the people and the momentary passions
of the majority. The distinction, he points out, is actually easy to

A Role for Future Generations


make. Publius allows that it is a fundamental principle of republican

government, which admits the right of the people to alter or abolish the
established constitution whenever they find it inconsistent with their
yet it is not to be inferred from this principle, that the
representatives of the people, whenever a momentary
inclination happens to lay hold of a majority of their
constituents incompatible with the provisions in the existing
constitution, would on that account be justifiable in violation
of those provisions; or that the court would be under a greater
obligation to connive at infractions in this shape, than when
they had proceeded wholly from the cabals of the
representative body. (78H:405)
The amendment provision gives the people time to act in a deliberative
rather than an impassioned manner. Moreover, it clearly places the
constitutional laws out of reach of the ordinary legislative process.
Alteration of the Constitution requires a solemn and authoritative act
specifically defined in the Constitution, even when Congress believes
it is acting at the behest of the people:
Until the people have by some solemn and authoritative act
annulled or changed the established form [of the Constitution]
it is binding upon themselves collectively, as well as
individually; and no presumption, or even knowledge of their
sentiments can warrant their representatives in a departure
from it, prior to such an act. (78H:405)
The message Publius conveys here is that constitutional
arrangement combined with the amendment process protects the people
from themselves, or at least from their own rash acts, while it preserves
their right to alter their government.
He also reveals how the
amendment process favors the will of the people (acting through their
state governments) over the potential opposing will of congress. In his
final essay, he reminds his reader that the amendment process can be
initiated at the state level:


The Federalists Vision of Popular Sovereignty

By the fifth article of the plan the congress will be obliged,
on the application of the legislatures of two-thirds of the
states to call a convention for proposing amendments, which
shall be valid to all intents and purposes, as part of the
constitution, when ratified by the legislatures of three-fourths
of the states, or by the conventions in three-fourths thereof.
Nothing in this particular is left to the discretion of that
body. (85H:453 emphasis his)

Publius also notes that the procedure discourages amendments that

favor local interests but is accommodating to measures that are
conducive to the general liberty or security of the people (85H:453).
Amendment as a Reflection of the Federal System
The foregoing discussion suggests that the safeguards in the
amendment procedure stem from the requirement to involve both the
national and state governments in the process. The dual role of both
spheres of government serves to slow the process down so that the
deliberative will of the people can emerge. It also protects the people
from usurpation of powers by the national government. This process
represents an example of federalism (as we define it today) in action.
Throughout The Federalist Publius points out that the Constitution
forms a different kind of governmental structure in that it is part federal
and part national.
In his discussion of the amendment procedure, Publius is quite
specific as to how the involvement of both state and national
governments affects the decision-making process with respect to
In requiring more than a majority, and particularly, in
computing the proportion by States, not by citizens, it
departs from the national and advances towards the federal
character: In rending the concurrence of less than the whole
number of States sufficient, it loses again the federal, and
partakes of the national character. (39M:198 emphasis his)

A Role for Future Generations


Moreover, the process for originating amendments allows the

nation to benefit from a wide range of experience both at a state and
national level. Publius tells us that the advantage of this system is that
it equally enables the general and state governments to originate the
amendment of errors as they may be pointed out by the experience on
one side or the other (43M:227). The people, therefore, can enter into
the process through either their state or national representatives. While
the people are not directly involved in the initiation of the amendment
process, the fact that there are two possible routes into the process
means that the people can throw their weight to the government that is
most likely to proceed according to their will.
Amending the Constitution: Not Too Easy, Not Too Difficult
Publius considers the amendment provision crucial for sustaining and
improving the government of the union; nevertheless, he is cognizant
of the dangers of making the process too easy. While not directed to
the amendment provision per se, several passages in The Federalist
address the mischievous effects of a [too] mutable government
(62M:322). Publius claims that the crisis which led to the convention
in Philadelphia was caused, in part at least, by too much repealing,
explaining, and amending of [the ordinary] laws (322). He claims
that continual change in the laws damages the reputation of the nation
abroad, where it is held in no respect by her friends . . . and is the
derision of her enemies (322). In addition, Publius contends that
political instability plays into the hands of the speculators at home at
the expense of the general populace and hinders general economic
prosperity. He asks what farmer or manufacturer will lay himself out
for the encouragement given to any particular cultivation or
establishment, when he can have no assurance that his preparatory
labors and advances will not render him a victim to an inconstant
government? Then, responding, he notes that no great improvement
or laudable enterprise, can go forward, which requires the auspices of a
steady system of national policy . . . But the most deplorable effect of
all, he contends, is that diminution of attachment and reverence
which steals into the hearts of the people, towards a political system
which betrays so many marks of infirmity, and disappoints so many of
their flattering hopes (323).


The Federalists Vision of Popular Sovereignty

Too much mutability is especially dangerous at the constitutional

level. In Number 49M Publius addresses this point in response to
Jeffersons suggestion that the people should have a role in
constitutional disputes between the branches of the government.
Publius response is that a constitutional road to the decision of the
people ought to be marked out, and kept open, for certain great and
extraordinary occasions. But recurrence to the people on a routine
basis would carry an implication of some defect in the government,
[and] frequent appeals would in a great measure deprive the government
of that veneration, which time bestows on everything, and without
which perhaps the wisest and freest governments would not possess the
requisite stability (49M:259-60).
Moreover, the opposite situation, where the political laws are too
rigid, also results in the loss of veneration for a constitution by public
officials and citizens. If the constitutional laws run . . . counter to
the necessities of society and cannot be sufficiently amended, then
these laws will be bypassed or ignored. Publius warns that:
Wise politicians will be cautious about fettering the
government with restrictions that cannot be observed; because
they know that every breach of the fundamental laws, though
dictated by necessity, impairs that sacred reverence, which
ought to be maintained in the breasts of rulers towards the
constitution of a country, and forms a precedent for other
breaches, where the same plea of necessity does not exist at
all, or is less urgent and palpable. (25H:130)
He points out that in the situation under the Articles, Congress has
already exceeded its constitutional authority. By assuming the
administration of the western territories: they have begun to render it
productive; . . . they have proceeded to form new States: to erect
temporary Governments; to appoint officers for them; and to prescribe
the conditions on which such States shall be admitted into the
confederacy. He does not wish to throw censure on the measures
which have been pursued by Congress because the public interest
and the necessity of the case, imposed upon them the task of

A Role for Future Generations


overleaping their constitutional limits (38M:192). However, Publius

recognizes the risks involved. He observes that the most minute
provisions become important when they tend to obviate the necessity
or the pretext for gradual and unobserved usurpations of power
Taking Publius argument to its logical conclusion suggests that
the consequence of an inadequate constitution or of one that is not
practically amendable is the diminution of its authority and its status
as higher law. Just as continual legal tinkering with constitutional
provisions through an amendment process that is too easy diminishes a
constitutions sanctity, so also is a constitution undermined by the
necessity to overstep its authority because of a design that is too rigid.
It becomes crucial, therefore, to strike the proper balance between a
constitution that can be altered to take advantage of advancements in
the science of politics and to accommodate future political
developments, and one that, on the other hand, is not so mutable that
its sanctity as higher law is jeopardized. Publius maintains that this
balance has been achieved in the amendment provision. He claims that
[t]he mode [of amendment] preferred by the Convention seems to be
stamped with every mark of propriety. It guards equally against that
extreme facility which would render the Constitution too mutable; and
that extreme difficulty which might perpetuate its discovered faults
This formal amendment procedure supplies a means of
incorporating the wisdom and circumstances of future generations into
the constitutional design. In doing so it adds a dynamic and what
Publius hopes will be a progressive dimension to the social compact.
The Constitution is presented in outline form. As such it is easily
accessible to the people, whom it serves. Publius points out that it is
also a limited constitution in that the powers of the national
government are confined to the regulate[ion of] the general political
interests of the nation and are not extended to every species of
personal and private concerns (83H:443). The general political
interests, as Publius calls them, include the provision of national


The Federalists Vision of Popular Sovereignty

defense and internal peace, promoting harmony among the states,

superintending the economy, and encouraging commerce (84H:442).
Taken as a whole, Publius argument suggests that the skeletal form
and limited nature of the Constitution work together to provide future
governments with the flexibility necessary to carry out their
responsibilities, especially with regard to national defense, while, at the
same time, safeguarding the sovereignty of the people by limiting the
application of that flexibility to certain objects.9
The flexibilities to which Publius refers are of several types.
Although he does not formally classify them, these flexible provisions
fall into four categories: (1) concurrent powers between the state and
national governments, (2) constitutional formulae that prescribe how
certain types of changes are to occur, (3) provisions within the
Constitution that give Congress discretion in the application of
delegated powers, and (4) outright grants of organizational power to
Before delving into the particular types of flexibilities, it is
important to consider the differences between the formal amendment
process and the flexible arrangements generally. First, both allow for
changes in the way the government operates, but the former can alter its
basic structure, while the latter are applied only to the normal
operations of government. The second difference relates to the manner
in which changes are implemented. The amendment process requires a
special procedure to be followed that involves the participation of the
state governments, the national government, and, sometimes, special
conventions. In contrast, the flexible arrangements allow change to
occur in the ordinary course of governance. A third difference concerns
the extent of participation required by the sovereign for implementing
the change. The role of the people is clearly defined for implementing
change under the amendment provision and it is an indirect role: the
people act initially through either their state or national representatives
to propose an amendment, and they participate through either their state
representatives or through specially elected state conventions at the
ratification stage of the process. However, the level of popular
participation varies for the flexible arrangements from almost total
involvement in determining the allocation of concurrent powers
between state and national governments to a more remote level of
control in cases where Congress is given specific organizational power

A Role for Future Generations


by the Constitution. The role of the people is, therefore, sometimes

more and sometimes less in alterations implemented under the flexible
arrangements than for those put into operation through the amendment
The Flexible Allocation of Concurrent Powers
Flexibility in shifting certain government functions between the state
and national governments is a by-product of the federal system. What
becomes a very important power for the people was probably not
anticipated by the Constitutions framers and possibly only occurred to
Publius as he prepared the Federalist essays. The federal compromise
worked out at the convention was relatively clear with respect to the
structural elements of the national government, save the design of the
court system, but it was vague regarding the details of how certain
powers were to be distributed between the state and national
governments. A set of overlapping powers exists for both state and
local governments. Taxation is an example. Publius observes that
[t]he necessity of concurrent jurisdiction in certain cases results from
the division of the sovereign power (32H:158).
The good news that emerges from the confusion attached to these
concurrent powers is that the people gain additional leverage over both
sets of governments. As Publius explains: In a confederacy the
people, without exaggeration, may be said to be entirely the masters of
their own fate. Power being almost always the rival of power; the
General Government will at times stand ready to check the usurpations
of the state governments; and these will have the same disposition
towards the General Government. Then, [t]he people, by throwing
themselves into either scale, will infallibly make it preponderate. If
their rights are invaded by either, they can make use of the other, as the
instrument of redress (28H:141).
In another paper Publius concludes a speculative discussion about
where the advantage lies as a result of this ambiguity, saying that the
decision of how to balance the powers must be left to the prudence
and firmness of the people; who, as they will hold the scales in their
own hands, it is to be hoped, will always take care to preserve the
constitutional equilibrium between the General and the State
Governments (31H:155). Later, in a discussion of republican


The Federalists Vision of Popular Sovereignty

principles, Publius again reminds his reader that [t]he Federal and
State Governments are in fact but different agents and trustees of the
people (46M:240). Moreover, he argues that the relative competency
of the two governments will hold some sway over how the people
decide to allocate the concurrent powers:
If therefore, as has been elsewhere remarked, the people
should in future become more partial to the federal than to the
State governments, the change can only result, from such
manifest and irresistible proofs of a better administration, as
will overcome all their antecedent propensities [toward the
state governments]. And in that case, the people ought not
surely to be precluded from giving most of their confidence
where they may discover it to be most due. (46M:241)
The double agency, which accrues to the people through the
compound republic, provides them with an important outlet for
expression that would not exist in a conventional uni-sovereign
arrangement, irrespective of whether that sovereignty resided at a state
or national level. The ability to move the balance of power around not
only provides an additional safeguard against tyranny, but the
competitive situation it creates also supplies an incentive for each of
the governments to strive for excellence.11
Publius does not explain
exactly how the balancing of power between the two governments
occurs. Presumably, such shifts occur gradually as a result of electoral
decisions. Because the changing balance of power results from an
accumulation of decisions rather than a single act, the shift in the
allocation of power that results can be construed as a deliberative
process rather than a rash act.
Prescribed Constitutional Formulae
Flexible arrangements are also evident in constitutional formulae that
anticipate certain types of change. Such formulae constitute the second
kind of flexible arrangement and prescribe how these changes will be
incorporated into the system. Because they are part of the fundamental
laws, the formulae are not amendable by legislative action. The only
way these provisions can be changed is through the formal amendment

A Role for Future Generations


process; therefore, the people retain a high degree of control in this type
of arrangement. The formulae are designed to encourage growth while,
at the same time, preserving order in the young nation. They address
those events in the future that are most predictable and, potentially, the
most contentious. These formulae install the people of the founding
generation as mediators in anticipation of future contention.
example, Publius as well as most others of his generation expect and,
indeed, hope that the population of the nation will grow and its
territorial boundaries will expand:
It is now no longer a point of speculation and hope, that the
Western territory is a mine of vast wealth of the United
States, and although it is not of such a nature as to extricate
them from the present distresses, or for some time to come,
to yield any regular supplies for the public expenses, yet
must it hereafter be able under proper management both to
effect a gradual discharge of the domestic debt, and to furnish
for a certain period, liberal tributes to the Federal Treasury.
(38M: 192)
The constitutional formulae, which define the rules under which
national growth is to take place, are formulated by the people, but
not the same people who are likely to have a stake in and strong
feelings about the actual expansionary activity.
If stability is to be
maintained during this expansionary era, it is essential that growth be
orderly and cause as little disruption as possible to the ordinary
political processes. For example, in the area of tax collection,
constitutional formula regulate the allocation of the burden across the
expanding nation:
Let it be recollected, that the proportion of these taxes [for the
operation of the national government] is not to be left to the
discretion of the National Legislature; but is to be determined
by the numbers of each State as described in the second
section of the first article [of the Constitution]. An actual
census or enumeration of the people must furnish the rule; a


The Federalists Vision of Popular Sovereignty

circumstance which effectually shuts the door to partiality or
oppression. The abuse of this power of taxation seems to
have been provided against with guarded circumspection. In
addition to the precaution just mentioned, there is a provision
that all duties, imposts and excises, shall be UNIFORM
throughout the United States. (36H:175)

The formulae also accommodate growth by establishing the

procedures for adding new states. And Publius points out that these
procedures also provide safeguards for the people in existing states:
[N]o new State, shall be formed or erected within the
jurisdiction of any other State; nor any State be formed by the
junction of two or more States, or parts of States, without the
consent of Legislatures of the States concerned, as well as of
the Congress. (U. S. Constitution as quoted in 43M:223)
Publius explains that this particular precaution against the erection of
new states, by the partition of a State without its consent, quiets the
jealousy of the larger States; as that of the smaller is quieted by a like
precaution against a junction of States without its consent (43M:224).
In his fifty-fifth paper, Publius addresses the issue of the proper
size of the legislative body. This discussion is directed at the
apprehension that the size of the House of Representatives is too small.
Publius addresses this concern by referring to the census provision and
the constitutional formula which allows for the number to be
augmented to one [representative] for every thirty thousand
inhabitants, and he projects that [a]t the expiration of twenty-five
years, according to the computed rate of increase, the number of
representatives will amount to two hundred; and of fifty years to four
hundred (55:287-88). In 58M he again refers to the census provision
in a discussion as to whether the House actually will be augmented
from time to time, as the progress of population may demand. He
notes that the census provision stipulates that:

A Role for Future Generations


Within every successive term of ten years, a census of

inhabitants is to be repeated. The unequivocal objects of
these regulations are, first to readjust from time to time the
apportionment of the representatives to the number of
inhabitants; under the single exception that each state shall
have one representative at least; Secondly, to augment the
number of representatives at the same periods; under the sole
limitation, that the whole number shall not exceed one for
every thirty thousand inhabitants. (58M:300)
Publius goes on to explain that the incentives for carrying out this
constitutional mandate are two-fold. Possible resistance from the small
states in the Senate will be met by the strength of the larger states in
the House, coupled with the constitutional mandate for carrying out
such actions. In addition, he argues, new states, which are likely to
experience high levels of population growth, will add their forces to the
side of reapportionment and supplementation.
The Flexible Application of Delegated Powers
Certain provisions leave more discretion to Congress than those
containing formulae. Through discretionary decisions made by
Congress, the people have both more and less control over the
implementation of operating changes in the government than is the case
for the constitutional formulae. On the one hand, the people are
involved in a much more expedient, though indirect, means of altering
the manner in which the government operates. On the other hand, such
flexibility gives Congress more leeway to operate outside the bounds
of the popular will, at least temporarily. Publius argues that such
discretion is necessary because not all contingencies can be anticipated:
Constitutions of civil Government are not to be framed upon a
calculation of existing exigencies; but upon a combination of these,
with the probable exigencies of ages, according to the natural and tried
course of human affairs. He emphasizes that [t]here ought to be a
CAPACITY to provide for future contingencies (34H:164).
The capacity for future governments to have some leeway is crucial
for the future security of the nation. He explains the rationale for such


The Federalists Vision of Popular Sovereignty

flexibility as he defends not further limiting the objects of taxation by

the national government. He even justifies the possible imposition of
poll taxes (for which he confesses his disapprobation). His argument
is as follows:
There are certain emergencies of nations, in which expedients
that in the ordinary state of things ought to be forborne,
become essential to the public weal. And the government
from the possibility of such emergencies ought ever to have
the option of making use of them. The real scarcity of
objects in this country, which may be considered as
productive sources of revenue, is a reason peculiar to itself,
for not abridging the discretion of the national councils in
this respect. (36H:177)
Publius tells us that the authorities essential to the care of the
common defense are these to raise armies to build and equip fleets
to prescribe rules for the government of both to direct their
operations to provide for their support and that:
These powers ought to exist without limitation: Because it
is impossible to foresee or define the extent and variety of
national exigencies, or the correspondent extent and variety
of the means which may be necessary to satisfy them. The
circumstances that endanger the safety of nations are infinite;
and for this reason no constitutional shackles can wisely be
imposed on the power to which the care of it is committed.
(23H:119 emphasis his)
He follows up in a later paper with a rhetorical question: would
it be wise, or would it not rather be the extreme of folly . . . to leave
the Government entrusted with the care of the National defense in a
state of absolute incapacity to provide for the protection of the
community, against future invasions of the public peace, by foreign
war, or domestic convulsions? (34H:164).
Moreover, Publius
explains that a certain amount of flexibility is also needed to deal with
other types of revolutions, namely of the industrial sort:

A Role for Future Generations


As soon as domestic manufacturers are begun by the hands

not called for by agriculture, the imported manufactures will
decrease as the numbers of people increase. In a more remote
stage, the imports may consist in a considerable part of raw
materials which will be wrought into articles for exportation,
and will therefore require rather the encouragement of
bounties, than to be loaded with discouraging duties. A
system of Government, meant for duration, ought to
contemplate these revolutions, and be able to accommodate
itself to them. (41M: 214)
It is crucial to the understanding of Publius argument to recognize that
these discretionary flexibilities exist within the confines of a limited
constitution. The idea that the means ought to be proportioned to the
ends is a recurring theme in The Federalist,12 and at one point
Publius goes so far as to say that the powers that relate to the common
defense ought to exist without limitation (23H:119). However, he
also stipulates repeatedly that the Constitution is a limited one and that
the government has no power to operate outside the confines of those
limits.13 As a result, the discretionary flexibilities of Congress are
contained within the delegated powers and are under the electoral
supervision of the people.
Direct Grant of Organizational Power to Congress
In addition to the flexibilities built into the delegated powers, the
Constitution specifically grants Congress the power to fill in the
organizational details of the national judicial system. Publius does not
explain why the Constitution gives this power to Congress rather than
to a special convention to operate outside the legislative process. One
surmises that Congress may have seemed an obvious choice, since
traditionally much of the judicial power had been located in the
legislative function (and perhaps because the constitutionally prescribed
limits on the judicial power that are already in place also limit the
scope of congressional activity). Publius does explain, however, that
the grant of such a power to some body was a necessity due to the lack
of any experience with a national judiciary. He relates, in unfolding


The Federalists Vision of Popular Sovereignty

the defects of the existing confederation, the utility and necessity of a

federal judicature have been clearly pointed out.
And, while the
propriety of the institution in the abstract is not disputed, . . .
questions have been raised being relative to the manner of constituting
it (78H: 401). Publius cites this lack of experience with a national
judiciary along with the newness of the federal system and uncertainty
with how the compound governmental arrangement will actually work
as reasons for postponing the definition of certain arrangements until
some time in the future. He explains:
The erection of a new government, whatever care or wisdom
may distinguish the work, cannot fail to originate questions
of intricacy and nicety; and these may in a particular manner
be expected to flow from the establishment of a constitution
founded upon the total or partial incorporation of a number of
distinct sovereignties. Tis time only that can mature and
perfect so compound a system, can liquidate the meaning of
the parts, and can adjust them to each other in a harmonious
and consistent WHOLE. (82H:424)
Publius notes that the state constitutions, which served as models
for structuring of the legislative and executive departments, are not
particularly helpful in this case. For example, in defending the
omission of the right to a jury trial for civil cases, Publius points out
that no general rule could have been fixed upon by the convention
which would have corresponded with the circumstances of all the
states. Therefore, he and the convention before him capitulate leaving
the matter as it has been left, to legislative regulation (83H:433-34).
Even though Publius has a view of how the national judiciary might
operate and how it might be organized, he defers to this grant of
power given to Congress three times in the six essays in which he
discusses the court.15
Quoting Article III, Section 1, of the
The JUDICIAL POWER of the United States shall be vested
in one supreme court and in such inferior courts as congress
shall ordain and establish. (82H:424 emphasis his)

A Role for Future Generations


Publius explains that the Constitution divides the jurisdiction of

the supreme court into original and appellate, but gives no definition of
that of the subordinate courts. The only guidelines constitutionally
prescribed for them are that they shall be inferior to the supreme court
and that they shall not exceed the specified limits of the judiciary
(82H: 426). He seems to rely on the congressional power to fine tune
the judicial system whenever concerns are raised about specific points,
such as the inclusion of causes of equity,16 the possibility of appellate
jurisdiction extending to matters of fact,17 and the omission of jury
trial for civil cases.18 His general response in these matters is in the
nature of the following:
If some partial inconveniences should appear to be connected
with the incorporation of any of them [judicial powers] in the
plan, it ought to be recollected that the national legislature
will have ample authority to make such exceptions and to
prescribe such regulations as will be calculated to obviate or
remove these inconveniences. (80H:415 emphasis his)
Experience, then, is to be the guide and congress is to be the
instrument for filling in the sketch of the ultimate structure of the
Curiously, the issue that seems to be subdued in Publius
discussion of the court is the potential violation of separation of
powers leading to an infringement on the rights of the people that
this organizational power of Congress implies. The reason that this
was not an issue seems to be that opponents of the Constitution were
more concerned about judicial overreach than legislative abuse of
power. The separate judiciary was a new concept and no one was quite
sure what effect the discretionary powers of this institution would have
on the other popular institutions of government. Publius attention
was, therefore, focused on responding to concerns of possible judicial
abuse.19 The organizational grant of power to congress is presented as
a popular check on the authority of the court and is, perhaps, seen by
foes of a separate judiciary as a vital one.


The Federalists Vision of Popular Sovereignty

For Publius the Constitution becomes the instrument of the
dynamic and progressive social compact. It is a document to be
revered, but it is not an artifact to be merely glassed in and admired.
He portrays the Constitution as a child of each generation of Americans
who, in their turn, must take the responsibility to nurture it. The
constitutional design incorporates an amendment provision for those
great and extraordinary occasions where substantive changes are
warranted, and it is structured to allow for certain flexibilities that are
required for a growing nation and a durable system of government.


In Support of the Continuing


Publius depicts the government established by the new constitution as

republican to the core. Not only are all branches of that government
dependent on the will of the people to varying degrees, but the
government itself is a creation of the people.
Chapter Four
investigated Publius view of republicanism from a theoretical
standpoint. This chapter focuses on the substantive elements of that
The constitutional provisions that guarantee the people a role in
the operation of government are germane to a discussion of the
continuing compact because they represent a long-term constitutional
commitment to popular sovereignty at its most elemental level. The
issue that Publius addresses in most of the second part of The
Federalist is: do these provisions really put the people in ultimate
control of their government or do they, as some critics of the
Constitution allege, merely provide a republican faade for aristocratic
or oligarchic rule?
Recall from Chapter Four that a wholly popular government is a key
characteristic of American republicanism. Publius first introduces the
concept of wholly popular in 14M, where he defines it only vaguely
to mean a popularly founded and unmixed regime. In later papers he
explains each of the elements contained in this definition more fully.


The Federalists Vision of Popular Sovereignty

We have already examined Publius description of the popular founding

in Chapter Three. Two points from that discussion bear repeating here.
One, Publius views the involvement of the people in the origination of
their government as a noble and necessary antecedent for a successful
national government. The ratification provision in the Constitution
places the people in charge of their constitution, not only in theory but
also in reality. Two, the inclusion of an amendment provision is
designed to keep the people in charge by giving them a practical
method of altering the Constitution that is distinct from the ordinary
legislative process.
The popular founding combined with a
constitutionally defined amendment procedure contribute a depth to
American republicanism that Publius claims has never before been
achieved in a republic or democracy. This popular foundation forms
the basis of Publius wholly popular concept of republicanism.
However, he knows that he must not only defend the republican
character of the founding but also demonstrate that the government is
popular in its operation.
In 39M Publius defines what he means by an unmixed regime. It
is a government which derives all its powers directly or indirectly
from the great body of the people (39M:194). In this wholly
popular republic the people alone are sovereign; they do not share their
authority with any person a king or any group of distinguished
persons aristocrats or oligarchs.
Publius continues with his
definition, explaining what he means by deriv[ing] its powers directly
or indirectly from the great body of the people:
The House of Representatives, like that of one branch at least
of all State Legislatures, is elected immediately by the great
body of the people.
The Senate, like the present Congress, and the Senate of
Maryland, derives its appointment indirectly from the people.
The President is indirectly derived from the choice of the
people, according to the example in most of the States.

In Support of the Continuing Compact


Even the judges, with all other officers of the Union, will, as
in the several States, be the choice, though a remote choice,
of the people themselves. (39M:195)
In addition, Publius contends that in the American republic to be
established by the new constitution [t]he duration of the appointments
is equally comfortable to the republican standard, and to the model of
State Constitutions in that:
The House of Representatives is periodically elective as in all
the States: and for the period of two years as in the State of
South Carolina.
The Senate is elective for the period of six years; which is but
one year more than the period of the Senate of Maryland; and
but two more than that of the Senates of New York and
The President is to continue in office for the period of four
years; as in New York and Delaware, the chief magistrate is
elected for three years, and in South Carolina for two years.
In the other States the election is annual. In several of the
states however, no constitutional provision is made for the
impeachment of the chief magistrate. And in Delaware and
Virginia, he is not impeachable till out of office. The
President of the United States is impeachable at any time
during his continuance in office.
The tenure by which the Judges are to hold their places, is, as
it unquestionably ought to be, that of good behavior.
The issue of whether the proposed government is republican
enough is so important that Publius carefully structures his response to
the Constitutions critics. His primary strategy for defending the new
system is to demonstrate its similarity to existing state constitutions
and even to the Articles of Confederation. The truth, he argues, is
that the great principles of the Constitution proposed by the


The Federalists Vision of Popular Sovereignty

Convention, may be considered less as absolutely new, than as the

expansion of principles which are found in the articles of
Confederation (40M:203). And, while at times Publius praises the
innovative features contained in the Constitution, for the most part he
emphasizes what is familiar rather than what is new to his readers.
The passages quoted above are indicative of how he liberally sprinkles
his arguments with comparisons to the state constitutions. The
message he is trying to convey is that the proposed national
constitution is based on the American experience and represents an
amalgamation of elements already operational in the state constitutions.
In separate sets of essays, Publius addresses how republican
principles are reflected in the overall structure of the government and in
each of the branches. Before turning our attention to these particulars,
it will be helpful first to take a closer look at his notion of wholly
popular. Specifically, how does federalism impact on the new
American republic, and how broadly based is suffrage in this wholly
popular regime?
Federalism in a Wholly Popular Government
The first issue relates to the involvement of the states in the operation
of the national government and how this affects the realization of the
wholly popular ideal.
After Publius explains what he means by
vesting all the powers of the government in the great body of the
people, he makes a brief allusion to the constitutional guarantee of the
continuance of republican governments in the states (39M:196). This
commitment to perpetual republicanism in the states turns out to be
important if the wholly popular republic is to be assured in the
future. The guarantee clause appears in Article IV, Section 4, of the
The United States shall guarantee to every State in this Union
a Republican Form of Government . . .
Responding to the charge that this provision allows the national
government to intrude too deeply into the sovereignty of the states,
Publius explains:

In Support of the Continuing Compact


[T]he authority extends no further than to a guaranty of a

republican form of government, which supposes a preexisting
government of the form which is to be guaranteed. As long
therefore as the existing republican forms are continued by the
States, they are guaranteed by the Federal Constitution.
Whenever the states may choose to substitute other republican
forms, they have a right to do so, and to claim the federal
guaranty for the latter. The only restriction imposed on them
is, that they shall not exchange republican for anti-republican
Constitutions; a restriction which it is presumed will hardly
be considered as a grievance. (43M:225)
His basic argument is that the states were republican at the time
the national constitution was framed and the guarantee insures the
continuance of republicanism at the state level for future generations.
Yet Publius carries the argument still further. He explains that the
constitutional guarantee also is necessary if the promise of a wholly
popular national government is to be extended into the future because
certain parts of the State Constitutions . . . are so interwoven with the
Federal Constitution, that a violent blow cannot be given to the one
without communicating the wound to the other (43M:225).1
The intermingling of the state constitutions with the national one
means that the republican character of certain provisions of the national
constitution depends upon a republican form of government at the state
level. For example, take the election of Senators. The Constitution
originally specified that the Senate of the United States shall be
composed of two Senators from each State chosen by the Legislature
thereof . . . Clearly, if any of the states were not republican in
character, the indirect selection process would not meet Publius own
criteria of wholly popular. The constitutional provision that
describes the election of House members also assumes that the state
governments are republican in character. The House of Representatives
shall be . . . chosen by the people of the several States, and the
Electors in the State shall have the Qualifications requisite for the
Electors of the most numerous Branch of the State Legislature (United
States Constitution, Article I, Section 2).


The Federalists Vision of Popular Sovereignty

Suffrage in the Wholly Popular Republic

A definition of the extent of suffrage is crucial for determining the
vitality of Publius wholly popular notion of republicanism. In his
general discussion of republican principles, Publius neglects to specify
how broadly or narrowly the great body of the people is to be
construed. He does address this issue, however, in his defense of the
republican character of the House of Representatives (Numbers 52
through 61).
In the first paper of the series that deals specifically with the
House, Publius explains that suffrage is and must be defined in the
Constitution because [t]o have left it [the definition of suffrage] open
for the occasional regulation of the Congress, would have been
improper . . . (52M: 273). Here he speaks of the fundamentality of
suffrage, saying:
The definition of the right of suffrage is very justly regarded
as a fundamental article of republican government. It was
incumbent on the Convention therefore to define and establish
this right, in the Constitution. (52M:273)
Then Publius observes that suffrage is constitutionally defined to
conform . . . to a standard already established in the state
constitutions. The implication is that those constitutions are republican
in form.
At the same time, Publius points out that suffrage is
extended broadly in that it includes the same people as those who elect
the most numerous branch of the State Legislatures (52M:273).
Indeed, those persons qualified to elect the House of Representatives
Not the rich more than the poor; not the learned more than the
ignorant; not the haughty heirs of distinguished names, more
than the humble sons of obscurity and unpropitious fortune.
The electors are to be the great body of the people of the
United States. They are to be the same who exercise the right
in every State of electing the correspondent branch of the
Legislature of the State. (57M: 295)

In Support of the Continuing Compact


Twentieth century critics of Publius are quick to point out that the
constitutional definition (through the state definitions) of suffrage then
was quite narrow by our standards, and they are correct. What they fail
to consider, however, is the substantial broadening of voting rights this
represents by eighteenth century standards. Suffrage in the United
States varied between 35% of white males in Georgia to 90% in
Pennsylvania and New Hampshire averaging between 65% and 75%
in the union as a whole. While this statistic admittedly excludes more
than half the population, it reflects a much higher level of inclusion
than in any republic or democracy in history. For example, during the
same period in England, which at the time set the historical standard
for popular participation, 12% of adult males were eligible to vote, and
this figure is about three times higher than in democratic Athens the
next best.2
Moreover, Publius moves beyond suffrage the right to chose
ones representatives also to discuss who among the people might
have the opportunity to serve in elected national office. He observes
that the qualifications stated in the Constitution for members of the
House of Representatives are few: A Representative of the United
States must be of the age of twenty-five years; must have been seven
years a citizen of the United States, must at the time of his election, be
an inhabitant of the State he is to represent, and during the time of his
service must be in no office under the United States. This means that
. . . the door of this part of the Federal Government, is open
to merit of every description, whether native or adoptive,
whether young or old, and without regard to poverty or
wealth, or to any particular profession or religious faith.
His analysis leads one to conclude that the notion of wholly
popular can also be extended to include broad-based opportunity to
serve in national office.4 In Number 62M Publius points out that the
qualifications for the office of Senator are few as well. The only
differences between the qualifications for a senator and representative
relate to age (thirty years rather than twenty-five) and length of
residency in the United States (nine years rather than seven).5


The Federalists Vision of Popular Sovereignty


In addressing the republican nature of each of the departments of
government, Publius makes the case that the overall design of the
proposed government contributes to its republican operation. The idea
is that the dispersal and checking of powers within the government
keeps tyranny at bay and the people in control. As Publius puts it,
the partition of power is achieved by so contriving the interior
structure of the government, as that its several constituent parts may,
by their mutual relations, be the means of keeping each other in their
proper places (51M:266). He explains that while separation of
powers means that each department should have a will of its own,
this does not mean that all powers of government are totally separate.
He also explains that the mechanisms supporting this principle serve as
auxiliary precautions, which bolster the control of the government by
the people (51M:266). Publius describes three conditions, met for the
most part by the Constitution, that give substantive meaning to
separation of powers:
[1] . . . the members of each [department] should have as
little agency as possible in the appointment of the members
of the others. Were this principle rigorously adhered to it
would require that all appointments for the supreme
executive, legislative, and judiciary magistracies, should be
drawn from the same fountain of authority, the people,
through channels, having no communication whatever with
one another. (51M:266)
But no sooner does Publius start naming conditions than he makes an
exception. For instance, he contends that some deviations to this
principle must be admitted in the case of judicial appointments. The
reason is that judges need expertise in the law and the general electorate
does not have the knowledge to evaluate judicial credentials. The other
two conditions are:

In Support of the Continuing Compact


[2] . . . the members of each department should be as little

dependent as possible on those of the others, for the
emoluments annexed to their offices.
[3] 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. (51M:267))
It is the third condition, according to Publius, that provides the great
Human nature is taken into account in creating a
departmental structure where [a]mbition must be made to counteract
ambition. The interest of the man must be connected with the
constitutional rights of the place . . . (267). Restating this proposition
in the contemporary vernacular, Publius advocates tying a mans selfworth to his job performance and his reputation to his power. This
linkage creates the incentive for elected officials to maintain the power
of their offices and to guard against the encroachment of that power
from other departments.
In this paper Publius departs from the deliberative ideal to argue
the merits of competition within the government. Notice, however,
what this argument is not about. Publius does not offer a competitive
model of government similar to that presented today in Dahls (1955)
empirical theory or in Chubb and Moes (1990) more recent, applied
model. Publius views competition on a macro-level, where the
distribution of power among the departments is in contention, not at a
micro-level, where private interests (policy viewpoints) are sorted out
in a competitive political arena. Competition emerges in Publius
scheme because the Constitution links the reputation of the officeholder to the prestige of his office. Clearly, the diminution of his own
or his departments authority would not enhance the reputation of an
elected official.
This policy of supplying by opposite and rival interests, the
defect of better motives is reinforced by a system of balances and
checks. The balances include features that separate the departments


The Federalists Vision of Popular Sovereignty

while integrating their functions. Lutz (1988) uses the metaphor of

clockworks to explain the balances. The balances in a clock operate
separately but in harmony to perform a single function. Such balances
in the Constitution include different modes of election and different
terms of office for each branch, as well as the staggered terms for the
Senate. Different modes of election result in a constituency that is
configured slightly differently for each branch of government. Different
terms keep the government in a continuous process of formation.
Because the government never turns over completely, at any one time it
always consists of both new and old elements. Bicameralism also
works as a balance as its intent is
to divide the legislature into different branches; and to render
them by different modes of election, and different principles
of action, as little connected with each other as the nature of
their common functions, and their common dependence on
the society, will admit. (51M:266)
Yet a bicameral legislature also works as a check. A check is an
element of the design that relies on shared powers and allows one
department of government to counteract or stall the actions of another.
Another check is the presidential veto, as Publius explains:
As the weight of the legislative authority requires that it
should be thus divided, the weakness of the executive may
require, on the other hand, that it should be fortified. (267)
Publius further observes that checks extend beyond the
constitutional mechanisms that define the relationship among the
departments of the national government. He points out that the very
nature of the federal system establishes a sort of rivalry for power
between the national and state governments:
In the compound republic of America, the power surrendered
by the people, is first divided between two distinct
governments, and then the portion allotted to each,
subdivided among distinct and separate departments. Hence a

In Support of the Continuing Compact


double security arises to the rights of the people. The

different governments will control each other; at the same
time that each will be controlled by itself. (51M:268)7
The American republic, then, is safeguarded in three ways: by the
people themselves, by auxiliary precautions supplied by internal checks
and balances provided for in the Constitution, and by the federal
system itself.
One final point is relevant to this topic. Number 51M is often
interpreted to portray the American system of government as one that
relies solely on mechanistic controls. However, while mechanisms are
important, they are only part of the story. What seems to be too
frequently overlooked in this paper is Publius assertion that: A
dependence on the people is no doubt the primary control on the
government (267 emphasis mine). There is no question that Publius
supports a mechanistic approach to keep the powers of government in
check. However, he presents these mechanisms as auxiliary
precautions (267). In other words, Publius views the mechanistic
controls as secondary to popular controls. Publius does not expect that
the mechanisms designed to check and balance power will be very
useful to a people ill-equipped for self-rule.
The House of Representatives is elected directly by the people;
therefore, the source of power for this branch is not in question.
However, critics of the Constitution raise two general concerns about
the structure of this institution: (1) the terms are too long for the
representatives to be responsive to the people; and (2) the representative
body is too small to properly represent the full range of interests.


The Federalists Vision of Popular Sovereignty

Are Two-Year Terms Too Long?

The position of critics on the first issue can be summed up by the
aphorism where annual elections end, tyranny begins. They contend
that the two-year term established by the Constitution for members of
the House militates against popular control of this institution
(53M:277). In his response Publius not only addresses this concern
but also speaks of the utility of the two-year term. As to safeguarding
popular control, he concedes:
As it is essential to liberty that the government in general,
should have a common interest with the people; so it is
particularly essential that the branch of it under consideration,
should have an immediate dependence on, and intimate
sympathy with the people.
Frequent elections are
unquestionably the only policy by which this dependence and
sympathy can be effectually secured. (52M:274)
However, Publius questions the criteria that the critics use to
define frequent, asking, what particular degree of frequency may be
absolutely necessary for the purpose? (52M: 274). He suggests that a
general-purpose rule for determining the term of office for all elected
assemblies might be ill-suited to the American situation. For one
thing, he notes that the House will possess a part only of the supreme
legislative authority which is vested completely in the British
Parliament, and which with a few exceptions was exercised by the
colonial Assemblies [in America] . . . Publius reinforces his point by
stating a well known maxim in reverse: the smaller the power, the
more safely may its [the terms] duration be protracted (52M:276).
Publius further observes that the federal system provides an added
measure of security for the people in the union: the Federal Legislature
will not only be restrained by its dependence on the people as other
legislative bodies are; but . . . it will be . . . watched and controlled by
the several collateral [state] Legislatures, which other legislative bodies
are not (52M:276).
In addition, Publius finds support for his position in the state
constitutions, where the terms for the popular house range from six

In Support of the Continuing Compact


months (in Connecticut and Rhode Island) to two years (in South
Carolina). He observes that it would not be easy to show that
Connecticut or Rhode Island is better governed . . . than South
Carolina (53M: 277). Finally, Publius looks to the Constitution
itself, which is established by the people and unalterable by the
government (53M:277). The two-year term is set by the Constitution
and cannot be changed except by a special procedure that requires the
support of a super-majority of both the Congress and the states. He
observes that the aphorism referred to above is more applicable to the
British case where the authority of the parliament [not the people] is
transcendent and where the parliament in several instances, actually
changed, by legislative acts some of the most fundamental articles of
the government (53M: 278).
Publius continues his defense of the two-year term, arguing that
biennial elections are not only safe, but also useful, and even necessary.
He argues that the two-year term enables representatives to obtain the
extent of practical knowledge, requisite to the due performance of the
service. He observes that the term of representatives tends to be shorter
in the states because the legislators need know only the laws of a single
state. In contrast, some knowledge of the affairs, and even of the laws
of all the states, ought to be possessed by the members [of the House]
from each of the states, thereby requiring a longer term of office
(53M:279). Publius also tackles this issue from a slightly different
perspective, claiming that a term so short that new members are always
on the steep portion of the learning curve would put newly elected and
one-term members of the House and their constituents at a sizable
disadvantage. In his words: the greater the proportion of new members
[in the House], and the less the information of the bulk of the
members, the more apt will they be to fall into the snares that may be
laid for them [presumably by members who have served multiple
terms]. One infers from this statement that Publius believes the twoyear term, which allows time for the acquisition of the requisite
knowledge, also facilitates a more equitable distribution of power
among the members (53M:280).


The Federalists Vision of Popular Sovereignty

Is the House Too Small to Represent the People?

The second general concern of critics is the small size of the popular
assembly. Initially, the House of Representatives is to consist of
sixty-five members (55M:287). Publius addresses four complaints that
relate to this issue: (1) that so small a number of representatives will
be an unsafe depository of the public interests; (2) that the members
will not possess a proper knowledge of the local circumstances of their
numerous constituents; (3) that this small number will become more
and more disproportionate as the population increases and obstacles
will prevent a correspondent increase of the representatives to
accommodate the growing population; and (4) that the representatives
will be taken from that class of citizens which will sympathize least
with the feelings of the mass of the people (55M:286).
The small size of the original House is a temporary condition, says
Publius. He reminds the critics that the Constitution provides for a
census each decade, the first of which is to take place in three years
time. Based on the census the number [of representatives] may be
augmented to one for every thirty thousand inhabitants. On the basis
of his projections of population growth, Publius then surmises that
[i]t will not be thought an extravagant conjecture, that the first census,
will . . . raise the number of representatives to at least one hundred,
that after twenty-five years the number of representatives will amount
to two hundred, and that it will climb in fifty years to four hundred
Thus, the question becomes whether the smallness of the number,
as a temporary regulation, [is likely to] be dangerous to the public
liberty. Publius responds that the virtue of the American people will
safeguard their liberty; he speaks of the present genius of the people of
America, the spirit, which actuates the state legislatures, and the
principles which are incorporated with the political character of every
class of citizens (55M:288). It is because of this virtue that Publius
concludes: I am unable to conceive that the people of America in their
present temper, or under any circumstances which can speedily happen,
will choose, and every second year repeat the choice of sixty-five or a

In Support of the Continuing Compact


hundred men, who would be disposed to form and pursue a scheme of

tyranny or treachery (55M:288).
He also demonstrates that the Constitution provides several
safeguards that shield the House from overtures by the Senate or
President to betray the public trust. Most important among these is
that the different elements of government standing on as different
foundations as republican principles will well admit, and at the same
time accountable to the society over which they are placed, ought alone
to quiet this apprehension (55M:289). Another safeguard against
undue influence from other branches is that the members of Congress
are rendered ineligible to any civil offices that may be created or of
which the emoluments may be increased, during the term of their
election (55M:289).
All of these safeguards are important, but in the end, Publius
reminds us, republican government assumes and requires a certain
degree of public virtue in the guardians of the people and in the
people who select them. He charges his critics with an overly
pessimistic view of human nature which, if accurate, the inference
would be that there is not sufficient virtue among men for self
government. In the end the viability of republican government
depends on a sufficiency of public virtue among elected officials and
their electors and a modicum of public trust.9
Second, Publius responds to the critics claim that with only
sixty-five members the House of Representatives will be too small to
possess a due knowledge of the interests of its constituents. On this
issue he reminds his opponents that the national government is a
limited one: the objects of federal legislation . . . which seem most
to require local knowledge, are commerce, taxation, and the militia.
With respect to commerce and taxation, he claims that the knowledge
of the laws and local situation of each individual state can be
sufficiently conveyed to the national council by a few representatives.
As to the militia, the practices are likely to be uniform within a state.
Besides, Publius argues that those persons elected to the House of
Representatives are most likely to have been members of the state
legislatures, where all the local information and interests of the state are
assembled, and from whence they may easily be conveyed by a very


The Federalists Vision of Popular Sovereignty

few hands into the legislature of the United States (56M:291-92). In

concluding, he notes that the extensive knowledge that representatives
must acquire relates to the different laws and customs across states, not
within them.
Third, opponents of the Constitution raise the concern that the
representative body will not be augmented as the population of the
union increases. In response Publius points out that the provisions in
the national constitution for such augmentation are superior to that in
many of the state constitutions (58M:300). Besides, he observes,
experience is on his side of the issue: in those state constitutions where
augmentation is specified, a gradual increase of representatives . . . has
at least kept pace with that of the constituents (300). Furthermore, at
the national level the momentum favors the enlargement of the House
because the process will be driven by the large states, which are
represented according to their numbers in only one house of the
legislature and will seek to maintain or increase their influence there
New states that are likely to advance in population with
peculiar rapidity will also be interested in frequent reapportionments
(301-2). In sum, Publius reasons it is unlikely that the size of the
House will stagnate at its original number for long.
Fourth, Publius responds to the charge that the House of
Representatives is not really wholly popular because it will be taken
from that class of citizen which will have the least sympathy with the
mass of the people . . . (56M:295).
Publius concedes that a
constitution should be framed to encourage men of outstanding merit
to be selected for high office:
The aim of every political Constitution is or ought to be first
to obtain for rulers, men who possess most wisdom to
discern and most virtue to pursue the common good of
society. (57M:295)
However, he also makes clear that such a constitution would be remiss
if it allowed these meritorious public officials to escape popular

In Support of the Continuing Compact


. . . in the next place [the aim is], to take the most effectual
precautions for keeping them virtuous, whilst they continue
to hold their public trust. The elective mode of obtaining
rulers is the characteristic policy of republican government.
The means relied on in the form of government for preventing
their degeneracy are numerous and various. The most
effectual one is such a limitation of the term of appointments,
as will maintain a proper responsibility to the people. (57M:
The bottom line is that, as electors, the people not a certain class of
people but all the people are ultimately in charge of their
Who are the electors of the Federal Representatives? Not the
rich more than the poor; not the learned more than the
ignorant; not the haughty heirs of distinguished names, more
than the humble sons of obscurity and unpropitious fortune.
The electors are to be the great body of the people of the
United States. They are to be the same who exercise the right
in every State of electing the correspondent branch of the
Legislature of the State. (57M: 295)
Publius devotes ten papers (52-61) to defending the republican
character of the House of Representatives. That he considers it the
most republican of the departments of government is reflected in his
reference to the House as the representative body.11 He argues that
the two-year term has the advantage of being sufficiently short to allow
for popular control but sufficiently long to allow representatives to gain
sufficient knowledge to be up to the task of representing the people
adequately. He acknowledges that the size of the body is small, but
only temporarily so. He contends that even in the short term the body
is sufficiently large to be responsive to constituents needs, and that the
people can be trusted with supplying the body with fit characters. But
Publius also touches on the importance of defining suffrage in the
Constitution, and he points out that voting rights are extended much
more broadly in the states than in Britain.12 This extended suffrage,
he claims, is a further demonstration that the House is, indeed, a
republican body.


The Federalists Vision of Popular Sovereignty


The Senate, explains Publius, is one of two institutions that derives
its appointment indirectly from the people (39M:195). Originally,
Senators were chosen by the state legislatures, which were chosen by
the people.13 Publius admits that the selection of this body deviates
from the republican principle in that the people do not have a
proportional share in the government. However, he reminds his
readers that this modification of the republican principle results not
from a desire by convention delegates to create an aristocratic body in
the government, but from a compromise between the opposite
pretensions of the large and the small states. The Senate, he explains,
is an accommodation to the small states as well as a manifestation of
the federal element of the compound republic which partake[s] both
of the national and federal character. Publius suggests that that this
compromise may turn out to be a blessing in disguise a departure
from republicanism in the ideal that may prove to be more convenient
in practice than it appears to many in contemplation (62M:319-20).
Publius reveals two advantages that result from this federal
arrangement. The first is that the Senate reflects the constitutional
recognition of the portion of sovereignty remaining in the individual
states, and an instrument for preserving that residuary sovereignty.
The second is that the Senate becomes an impediment . . . against
improper acts of legislation. As a second branch it doubles the
security to the people, by requiring the concurrence of two distinct
bodies in schemes of usurpation or perfidy, where the ambition or
corruption of one, would otherwise be sufficient (62M:320-21).
Moreover, Publius argues that the smaller size of the Senate and the
longer term of its members serve the long-term interests of the people.
Its small size makes the individual members more visible, and,
therefore, more accountable to the people than otherwise might be the
case (63M:324). The longer term contributes to the quality of
government by providing sufficient time for Senators to acquire
knowledge of the means by which [the objects of government] can
best be attained, by promoting stability at home and in relations with

In Support of the Continuing Compact


foreign nations (62M:322), and by serving as an incentive to attend to

long-term projects in a responsible manner (63M:325).
The president is also chosen indirectly by the people: by select bodies
of electors to be deputed by the people for that express purpose
(64J:331). Although the office of the presidency was attacked most
vociferously by opponents to the Constitution and, according to
Publius, with less candor [and] criticized with less judgment
(67H:348), the method of election, despite its complexity, did not
seem to be an object of concern. As Publius relates: The mode of
appointment of the chief magistrate of the United States is almost the
only part of the system, of any consequence, which has escaped
without severe censure, or which has received the slightest mark of
approbation from its opponents (68H:352). Nevertheless, Publius
takes the opportunity to praise a procedure that he admits may be not
perfect but it is at least excellent (352). The electoral process, he
explains, is guided by two criteria: the involvement of the people and
the selection of a person of character.
While the Constitution does not provide for the direct popular
election of this national office, Publius explains that, in principle, the
sense of the people should operate in the choice of the person to whom
so important a trust was to be confided. He adds:
This end will be answered by committing the right of
making it, not to any preestablished body, but to men,
chosen by the people for the special purpose, and at the
particular conjuncture. (68H:352)
Moreover, the process is designed so that a sitting president is to have
no electoral advantage if he seeks reelection. The concern is that an
incumbent president might be tempted to sacrifice his duty [to the
people] . . . for those whose favor was necessary to the duration of his
official consequence (68H:253). In accordance with the principle of
separation of powers, the Executive should be independent for his
continuance in the office on all, but the people themselves (68H:353).
This principle is carried out by repeating the original procedure for each
election. In other words, a new electoral body is selected by the people
for each presidential election.


The Federalists Vision of Popular Sovereignty

The second criterion is that the person selected as president be of

suitable character. As Publius puts it, the president must be a person
who can command the esteem and confidence of the whole union.
Therefore, it is especially important that the station [be] filled by
characters preeminent for ability and virtue (68H:354). That is why
the actual selection of the president is to be made by an intermediate
body of electors:
It was equally desirable, that the immediate election should
be made by men most capable of analyzing the qualities
adapted to the station and acting under circumstances
favorable to deliberation and to a judicious combination of all
the reasons and inducements, which were proper to govern
their choice. A small number of persons, selected by their
fellow citizens from the general mass, will be most likely to
possess the information and discernment requisite to so
complicated an investigation. (68H:352)
To provide security against mischief, the presidential election
procedure includes three safeguards. The first is that multiple electors,
rather than a single one, are selected in each state. Publius explains
The choice of several to form an intermediate body of
electors, will be much less apt to convulse the community,
with any extraordinary or violent movements, than the choice
of one who was himself to be the final object of the public
wishes. (68H:352)
Second, each states electors are to meet and make their choice
. . . as the electors chosen in each state, are to assemble and
vote in the state, in which they are chosen, this detached and
divided situation will expose them much less to the heats and
ferments, which might be communicated from them to the
people, than if they were all to be convened at one time, in
one place. (68H:352-53)

In Support of the Continuing Compact


The separate deliberation presumably keeps the electors on task while

insulating them from the passions and interests of their fellows in other
states, which might eventually trickle up from or down to the people
The third safeguard is that current office-holders are prohibited
from serving as electors:
They [the convention] have excluded from eligibility to this
trust, all those who from situation might be suspected of too
great devotion to the president in office. No senator,
representative, or other person holding a place of trust or
profit under the United States, can be of the number of the
electors. (68H:353)
The reasoning here is that those holding office might be tainted by a
relationship with a sitting president who is seeking another term or that
they might form an alliance with a potential president. The exclusion
of these office-holders is supposed to keep the electoral body free from
any sinister bias (68H:353).
Why the President is Unlike a King
Although the method of election of the president was not an issue
during the ratification debates, the notion of a unitary executive was
represented as something akin to a monarchy by opponents of the
Constitution (67H:348-9). Publius takes this criticism seriously,
although he casts it as deliberate imposture and deception. Indeed,
69H might be appropriately subtitled, Why the President is Unlike a
King. In this essay Publius endeavors to demonstrate that the office
of president is more like that of the governor of New York (also a
unitary executive) than the King of Great Britain. In making this
comparison he looks at the method of selection, the provision for
impeachment, and the attenuated powers that the Constitution gives the
Publius observes that at the most fundamental level the presidency
is an elected office rather than an inherited right. The president is
elected for a four-year term and is re-eligible as often as the People of
the United States shall think him worthy of their confidence (356). In
this respect, says Publius, the president is similar to the executive of


The Federalists Vision of Popular Sovereignty

New York, who is elected for a three-year term without any limits on
the number of terms he may serve (356). Likewise, both the president
and the governor of New York are subject to impeachment, unlike the
King of Great Britain whose person is considered sacred and
inviolable (356).
With regard to powers, the president is given a qualified veto
similar to that of the governor of Massachusetts but falling well short
of the absolute negative of the British sovereign (357). In a later
paper Publius supports the qualified veto as one means of preserving
the deliberative sense of the community against the sudden breeze of
passion and every transient impulse which the people may receive
from the arts of men, who flatter their prejudices to betray their
interests (71H:369-70). Recall from Chapter Four that finding the
deliberative will of the people, as opposed to responding to the passion
and possibly injustice of the moment, is a key element in the
American brand of republicanism described by Publius.
As to presidential authority, Publius observes that the only
uncircumscribed power given the president is to grant reprieves and
pardons for offenses against the United States, except in cases of
impeachment (357 emphasis his). Here Publius argues that because of
the impeachment condition, the power possessed by the president is
less even than that of the New York governor. Moreover, he observes
that the other executive powers are all qualified in one way or another,
requiring concurrent action by either the entire congress or the Senate.
For example, as Commander in Chief, presidential authority would be
nominally the same with that of the King of Great Britain, but in
substance much inferior because, while the power of the British King
extends to the declaring of war and to the raising and regulating of
fleets and armies, these associated powers are given to Congress in the
U. S. Constitution (357-8). Furthermore, the British King is the sole
possessor of the power of making treaties, whereas the President shares
this power with the Senate (361). The King has the sole power of
appointments, but, in addition, he can create offices . . . confer titles
of nobility and dispose of an immense number of church
preferments. In contrast, the presidential appointment power is shared

In Support of the Continuing Compact


with the Senate, and the officers appointed by the president are limited
by the Constitution and by acts of the legislature (360). The
conclusion that Publius would have his reader draw is that the office of
the president is most dissimilar to that of a king. In the remaining
essays on the presidency, he discusses how this office is designed to
provide the energy and administrative efficiency required for a well-run
Publius biggest problem in convincing his readers that the
republic created by the Constitution is genuinely popular lies in the
judicial branch. As we discussed in Chapter Five, critics of the
Constitution feared political overreach by a national judiciary that was
independent of the legislature. In addition, a selection process for
judicial appointees that is several steps removed from the people and
the appointment of judges for a term of good behavior seemed to
stretch the credulity of the notion of wholly popular to the limits.
The peoples role in the selection of judges is so indirect that even
Publius refers to it as a remote choice (39M:195). Publius defense
of the presidential appointment of these officials with the advice and
consent of the Senate is as follows:
Some deviations therefore from the principle [of separation of
powers] must be admitted. In the constitution of the
judiciary department in particular, it might be inexpedient to
insist rigorously on the principle; first, because peculiar
qualifications being essential in the members, the primary
consideration ought to be to select that mode of choice,
which best secures these qualifications. (51M: 266)
He argues that the President can generally be trusted to select judges
with the requisite legal competence because the sole and undivided
attention of one man will naturally beget a livelier sense of duty and a
more exact regard to [his own] reputation (76H:391). Moreover, he
contends that the Senate would be an excellent check upon a spirit of
favoritism in the President and would tend greatly to preventing the
appointment of unfit characters (76H:392).


The Federalists Vision of Popular Sovereignty

The reason that lifetime appointment of judges is so important,

says Publius, is that it leads to judicial independence from the other
branches because the permanent tenure by which the appointments are
held in that department, must soon destroy all sense of dependence on
the authority conferring them (51M:266).15 This independence is
consistent with the principle of separation of powers and is necessary
because it reduces the likelihood of collusion between two or more
branches of government at the expense of the people. Furthermore, the
independent judiciary provides a barrier against the abuse of power by
the legislative branch by keeping the [legislature] within their limits
(78H:402-3). But Publius also points out that a judicial appointment
for good behavior means just that.
Lifetime appointments are
rescindable for good cause. The Constitution contains an impeachment
provision that provides for the removal of judges:
The precautions for their responsibility are comprised in the
article respecting impeachments. They are liable to be
impeached for malconduct by the house of representatives,
and tried by the senate, and if convicted may be dismissed
from office and disqualified for holding any other. (79H:
Although Publius views the independence of the judicial branch as
essential to preserving a republican operation because of its potential
for mitigating abuses of power from the other branches critics of a
separate judiciary are fearful of abuses originating in the judicial branch.
Their concerns fall into three general categories: (1) those related to
federalism, that is, a fear that the national judiciary would usurp the
powers of the state judicial systems; (2) those related to the appellate
power of the national judiciary; for example, a fear that decisions of the
Supreme Court would effectively negate the right of trial by jury; and
(3) the usurpation of legislative power by the judiciary. Responding to
the first issue, Publius argues that the powers of the judicial branch,
like that of the legislative, are confined to certain areas:

In Support of the Continuing Compact


The plan of the convention declares that the power of congress

. . . shall extend to certain enumerated cases . . . In a like
manner, the judicial authority of the federal judicatures, is
declared by the constitution to comprehend certain cases
particularly specified. The expression of those cases marks
the precise limits beyond which the federal courts cannot
extend their jurisdiction. (83H:429)
The second concern relates to the potential loss of a fundamental
right of republican government. The right to a jury trial by ones peers
is a principle that has been embedded in the democratic form of
government from the time of the ancient Greeks. Moreover, American
colonists claimed entitlement to this right as one of the essential
rights of Englishmen. The curtailment of this right by British
authorities was cited in the Declaration of Independence as one of the
reasons for the break from Great Britain. Although a jury trial in
criminal cases is guaranteed in the proposed constitution, some critics
contend that this right can be overridden by the national judiciary as
configured. The concern stems from the inclusion of fact as well as law
in the appellate authority granted to the Supreme Court. Critics claim
that the power to judge appeals on the facts of the case enables the
higher court to nullify jury decisions in the process of appeal. This
concern is taken seriously by Publius. His response seems to skirt
the issue, though. He begins by pointing out the differences in the
meaning of appellate in the various state constitutions. He follows
this argument with one to the effect that the state courts enjoy a similar
power, saying, it [is] not even possible to separate them [jurisdictions
of fact and law]. During this defense he indicates how he anticipates
the system working: If therefore the reexamination of a fact, once
determined by a jury, should in any case be admitted under the
proposed constitution, it may be so regulated as to be done by a second
jury, either by remanding the cause to the court below for a second trial
of the fact, or by directing an issue immediately out of the supreme
court. Publius fallback position relies on the constitutional grant
given to congress with respect to the courts. On this point he contends
that [t]he legislature of the United States would certainly have full
power to provide that in appeals to the supreme court there should be


The Federalists Vision of Popular Sovereignty

no reexamination of the facts where they had been tried in the original
causes by juries (81H:422-23).
The third issue relates to the rights of the courts to pronounce
legislative acts void, because [they are determined to be] contrary to the
constitution. This power, say critics, implies a superiority of the
judiciary to the legislative power and enables the court to substitute its
pleasure to that of the legislative body (78H:403-04). In response
Publius presents his well-known articulation of the doctrine of judicial
review. The essence of his argument is that judicial review operates as
an adjunct to popular sovereignty rather than as a threat to popular
rights. Publius logic proceeds as follows: the judiciary . . . will
always be the least dangerous to the political rights of the constitution
because it has no influence over either the sword or the purse.
Furthermore, the independence of the courts of justice is peculiarly
essential in a limited constitution (78H:401-02). Such independence
is necessary to keep [the legislature] within the limits assigned to their
authority. Then he speaks to the judicial power generally:
The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is in fact, and must
be, regarded by the judges as a fundamental law. It therefore
belongs to them to ascertain its meaning as well as the
meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance
between the two, that which has the superior obligation and
validity ought of course be preferred; or in other words, the
constitution ought to be preferred to the statute, the intention
of the people to the intention of their agents. (78H:403)
He continues, arguing that the courts role with regard to its judgment
on constitutional law is a natural extension of its ordinary function:
This exercise of judicial discretion in determining between
two contradictory laws, is exemplified in a familiar instance.
It not uncommonly happens, that there are two statutes

In Support of the Continuing Compact


existing at one time, clashing in whole or in part with each

other, and neither of them containing any repealing clause or
expression. In such a case, it is the province of the courts to
liquidate and fix their meaning: so far as they can by any fair
construction be reconciled to each other; reason and law
conspire to dictate that this should be done. Where this is
impracticable, it becomes a matter of necessity to give effect
to one, in exclusion of the other. (78H:403-04)
The point, contends Publius, is not that judicial power is superior to
legislative power but that the power of the people is superior to both.
Constitutional change does not lie in the province of the
representatives of the people, whenever a momentary inclination
happens to lay hold of a majority of their constituents incompatible
with the provisions in the existing constitution (78H:403-05).
Instead, there is a special procedure for altering constitutional law:
Until the people have by some solemn and authoritative act
annulled or changed the established form [of the Constitution
by an amendment,] . . . no presumption, or even knowledge
of their [the peoples] sentiments can warrant their
representatives in a departure from it, prior to such an act.
In Number 81H Publius returns to the issue, answering the charge that
the power of construing the laws, according to the spirit of the
constitution, will enable that court to mold them into whatever shape it
may think proper. Publius response is:
. . . there is not a syllable in the plan under consideration,
which directly empowers the national courts to construe the
laws according to the spirit of the constitution, or which
gives them any greater latitude in this respect, than may be
claimed by the courts of every state. (81H:416)
And, he reiterates that the constitution ought to be the standard of
construction for the laws, and that whenever there is an evident


The Federalists Vision of Popular Sovereignty

opposition, the laws ought to give place to the constitution

(81H:417). In essence, Publius presents the doctrine of judicial review
as a prudent check on the legislative branch and a necessary
accompaniment to a limited constitution. His conception of judicial
review, however, does not seem to be a broad one. He emphasizes,
through the use of capital letters, that the role of the court is to exercise
its legal JUDGMENT, not its WILL, in these weighty matters
(78H:404). The will of the people is what counts, and the peoples
will is exercised through the Constitution itself or through the
designated amendment process.
Publius uses most of the second half of The Federalist to demonstrate
that republicanism would be alive and well under the proposed
constitution. His position is that Constitutional provisions that
support a functioning republic are both numerous and effective
starting with those that provide for a uniquely, wholly popular
American system of government. Not only is the whole of the
government popular in form, but the right to vote and the opportunity
to serve in elective office are extended to a far greater portion of the
population than even in Great Britain (the republican exemplar of the
Although the responsibility for maintaining republican
institutions ultimately rests with the people, the constitutional design
facilitates popular control by diffusing power among the departments of
government and dividing it between two governments. In addition,
governmental powers are checked and balanced internally to curb abuses
by elected officials and to encourage a deliberative decision-making
Because the constitutional outline of the Court is so sketchy,
Publius defense of the republican character of this institution is
somewhat tentative. He articulates the doctrine of judicial review in
paper Number 78 a doctrine that, he asserts, is implied in a limited
constitution (81H:417). He argues that this power is used by the Court
on behalf of the people to counteract attempts by the legislature to

In Support of the Continuing Compact


overstep its constitutional authority. Publius emphasizes that this

power is confined to constitutional judgments and is not to reflect the
extra-constitutional will of either the Court or the people. With regard
to other potential abuses of judicial power, Publius relies on the
constitutionally delegated power given to Congress for the necessary
corrective actions.

This Page Intentionally Left Blank


Virtue in the American Republic

The trouble with republics, to paraphrase Montesquieu, is that they

require a certain amount of virtue in the people. But what of this
American Republic? Do the people have virtue enough? Or have the
framers of its constitution found a way to bypass virtue? These
questions guide our inquiry in this chapter.
All popular models of government have assumed that a certain level of
political wisdom and virtue resides in the people. On the surface, at
least, it appears that the American republic has found a way around this
requirement. Hobbes and Locke, the intellectual forerunners of
American political theory, have much to say about natural rights and
the original equality of all human beings, but little to say about virtue.
Even though Publius departs from his predecessors and mentions the
issue of virtue, he admits that the American people as well as the
other inhabitants of the globe, are yet remote from the happy empire of
perfect wisdom and perfect virtue (6H:27). He speaks of the foibles of
the human character: the tendency of human beings to employ reason to
rationalize the pursuit of their passions, the inevitability of factions in
human political enterprise, the resulting contests among private
interests and between private gain and public good, and the tendency of
the strong to infringe upon the rights of the weak (10M). He
characterizes men as being ambitious, vindictive and rapacious
(6H:23) and laments the confusion and intemperance of the


The Federalists Vision of Popular Sovereignty

multitude. To illustrate how he feels about leaving the people any

people in charge, he observes: had every Athenian citizen been a
Socrates; every Athenian assembly would still have been a mob
Publius not only perceives a shortfall of virtue in the people but
also in their leaders. In describing how majority rule in a small
republic can trample on the rules of justice, Publius warns, It is vain
to say, that enlightened statesmen will be able to adjust these clashing
interests, and render them all subservient to the public good.
Enlightened statesmen will not always be at the helm (10M:45). In a
later essay he observes that [i]f men were angels, no government
would be necessary. If angels were to govern men, neither external nor
internal controls on government would be necessary (51M:267).
At the same time that Publius catalogs the deficiencies of the
human character, he also praises the advances in the science of politics
. . . which were either not known at all, or imperfectly known to the
ancients (9H:38). Such advances include:
The regular distribution of power into distinct departments
the introduction of legislative balances and checks the
institution of courts composed of judges, holding their offices
during good behavior the representation of the people in the
legislature by deputies of their own election these are wholly
new discoveries, or have made their principal progress
towards perfection in modern times . . . add[ed to these] the
ENLARGEMENT of the ORBIT within which such systems
are to revolve either in respect to the dimensions of a single
State, or to the consolidation of several smaller States into
one great confederacy. (9H:39)
He explains that these measures are means, and powerful means, by
which the excellences of republican government may be retained and its
imperfections lessened or avoided (9H:39). He then repeats this same
argument in his summary of the next essay, saying: In the extent and
proper structure of the Union, therefore, we behold a Republican

Virtue in the American Republic


remedy for the diseases most incident to republican Government

Publius again emphasizes the importance of the interior structure
of government in 51M. First, he addresses separation of powers,
noting it is evident that each department should have a will of its
own (266). Second, he speaks of checks and balances, which he
describes as this policy of supplying by opposite and rival interests,
the defect of better motives (267). Third, he discusses the advantages
of the compound republic from which a double security arises to the
rights of the people (268). Fourth, he praises the extended republic,
saying: It is not less certain than it is important, notwithstanding the
contrary opinions which have been entertained, that the larger the
society, provided it lie within a practicable sphere, the more duly
capable it will be of self government. And happily for the republican
cause, the practicable sphere may be carried to a very great extent, by a
judicious modification and mixture of the federal principle (269).
It is interesting that much of what Publius has to say about the
imperfections of human nature and the benefits of a well-designed
constitution appears in Numbers 10M and 51M the two most widely
read and frequently the only two of the eighty-five Federalist essays
read by students of American government. No wonder contemporary
descriptions of the American system of government stress its reliance
on mechanisms and the anti-democratic attitudes of its framers.
However, if one reads beyond these two essays or even reads them
carefully one finds that this negative view of human nature is only
part of the story. For instance, in Number 10M Publius itemization
of mortal diseases under which popular governments have everywhere
perished and his allusion to the absence of enlightened statesmen
appear in reference to democracies or small republics,2 not large
republics. A central issue of this paper is reflected in the question that
he raises about three-fourths of the way through as to whether small or
extensive Republics are more favorable to the election of proper
guardians of the public weal . . . (47). Consider what this question


The Federalists Vision of Popular Sovereignty

implies: It is not that Publius views constitutional design as a

replacement for proper guardians of the public weal but rather as a
means to facilitate the election of such guardians. The underlying
assumption is that the union requires and possesses a sufficient stock
of men of virtue to supply the republican assemblies. There is another
important assumption too that is, the people have the capacity to
choose such men to represent them.
Publius never suggests that a large republic and a properly
designed constitution replace the requirement for virtue. Instead, he
reasons that a properly structured government raises the odds that virtue
will come to the fore in the public forum. In the case of a large
republic, the capacity of the people to choose well is enhanced because
they are offered a sufficiently large talent pool from which to select
their representatives and the people . . . will be more likely to center
on men who possess the most attractive merit, and the most diffusive
and established characters (47). This is not to say that Publius puts
all of his stock in virtue. The other advantage of the greater number
of citizens and extent of territory is that it creates a circumstance
principally which renders factious combinations less to be dreaded
(48). Nonetheless, in his concluding paragraphs of the essay, Publius
again stresses the importance of virtue (in elected officials) and praises
the extended republic as an instrument that allows the substitution of
Representatives whose enlightened views and virtuous sentiments
render them superior to local prejudices, and to schemes of injustice
In Number 51M Publius also presumes the presence of some level
of virtue in the people, although this assumption is lodged well below
the surface of his main argument, which lays out the constitutional
checks against abuse of power by public officials.
Publius observation about the dissimilarity between men and angels
and the need for controls on the government, he remarks, almost
offhandedly, that a dependence on the people is no doubt the primary
control on the government (267). This statement is key, however, as
it is an acknowledgement that the fate of the republic ultimately rests
on some capacity of the people for self-government and on a certain

Virtue in the American Republic


level of virtue (competency) in the people. Publius reinforces this

point with what he says next. In reference to the structures and
mechanisms discussed earlier in this chapter, he remarks, experience
has taught mankind the necessity of auxiliary precautions. It is the
way Publius characterizes these structures that is important to the point
that I am pursuing. He refers to them, not as primary, but rather as
auxiliary meaning helping; assisting; giving aid or support;
subsidiary . . .3
Publius considers the various elements in the
constitutional design such as, separation of powers, checks, balances,
a bicameral legislature, and a federal structure as important but
secondary precautions. These features are useful only as long as the
people themselves are fundamentally sound. In short, Publius expects
the internal structures of the Constitution to enhance public virtue, not
replace it. Therefore, one can look at his argument in 51M and
conclude that Publius views a constitution as an instrument that both
reflects the people for whom it is designed and shapes their actions.
So far, it seems, we have had to pry Publius views of virtue out
of his essays, but he addresses the subject more forthrightly in three
later papers. In two of these he declares to his critics, almost in
exasperation, that republican government assumes the presence of a
positive side of human nature. First, in 55M:
As there is a degree of depravity in mankind which requires a
certain degree of circumspection and distrust: so there are
other qualities in human nature, which justify a certain
portion of esteem and confidence. Republican government
presupposes the existence of these qualities in a higher degree
than any other form. Were the pictures which have been
drawn by the political jealousy of some among us, faithful
likenesses of the human character, the inference would be that
there is not sufficient virtue among men for self-government;
and that nothing less than the chains of despotism can
restrain them from destroying and devouring one another.
(55M: 289-90)
Then, in 76H, he repeats this sentiment, although it is clear from the
context that here he refers to the virtue of the leaders rather than of the
ordinary citizens of the republic:


The Federalists Vision of Popular Sovereignty

The institution of delegated power implies that there is a
portion of virtue and honor among mankind, which may be a
reasonable foundation of confidence. And experience justifies
the theory: It has been found to exist in the most corrupt
periods of the most corrupt governments . . . (76H:393)

Publius makes this statement as he urges the critics of the

presidential appointment power to take a realistic rather than an overly
pessimistic view of human nature. The flavor of his argument is: A
man disposed to view human nature as it is, without either flattering
its virtues or exaggerating its vices, will see sufficient ground of
confidence in the probity of the senate, to rest satisfied not only that it
will be impracticable to the executive to corrupt or seduce a majority of
its members . . . (393).
In 57M Publius is explicit about the relationship between the
Constitution and virtue. Here he makes clear that virtue is not just
something that is assumed, it is something to be courted and nurtured,
and the Constitution has a key role to play:
The aim of every political Constitution is or ought to be first
to obtain for rulers, men who possess most wisdom to
discern, and most virtue to pursue the common good of the
society; and in the next place, to take the most effectual
precautions for keeping them virtuous, whilst they continue
to hold their public trust. (57M:295)
In the remainder of this paragraph he reinforces the point made earlier
that the people are ultimately responsible for the virtue of their
The elective mode of obtaining rulers is the characteristic
policy of republican government. The means relied on in this
form of government for preventing their degeneracy are
numerous and various. The most effectual one is such a
limitation of the term of appointments, as will maintain a
proper responsibility to the people. (57M:295)

Virtue in the American Republic


From the discussion thus far, it is apparent that virtue does,

indeed, have a role in Publius interpretation of the American
republican model. However, there seems to be a tiering of that virtue,
with one level expected for leaders and another level expected for the
ordinary citizen.
Publius is a modern political scientist and a compact theorist. As such
he recognizes the political equality of all men. Yet, while he grants
the political equality that exists among all human beings, he does not
believe that such equality extends to all human capacities.
example, in his discussion of the causes of factions, Publius observes
that [t]he diversity in the faculties of men from which the rights of
property originate, is not less an insuperable obstacle to a uniformity
of interests (10M:44). Later in the same essay, he remarks that
[t]heoretic politicians, who have patronized this species of
Government [democracy], have erroneously supposed, that by reducing
mankind to a perfect equality in their political rights, they would, at
the same time be perfectly equalized and assimilated in their
possessions, their opinions, and their passions (10M:46).
Throughout The Federalist Publius makes clear that some citizens
are better suited to hold elective office than others.4 In 10M he also
observes that the people will tend to look to such men for leadership,
noting that in the large republic the people . . . will be more likely to
center on men who possess the most attractive merit, and the most
diffusive and established characters (47).
Publius scheme also
assumes that public officials will be drawn from the intellectual elite in
society. At times his language is elitist, but because he makes clear
that the rulers are selected from the general populace by the people
and are subject to reelection, his elitism falls well short of the Platonic
variety. Still, Publius argues that certain traits are desirable in a
statesman and that a man whose situation leads to extensive inquiry
and information is probably the most competent type of representative
for all elements of society (35H:171).


The Federalists Vision of Popular Sovereignty

An interesting twist in Publius argument is suggested by the

assumption he makes that it is the people themselves who demand a
high standard in their representatives. This point is further illustrated in
his response to those who contend that the house of representatives is
not sufficiently numerous for the reception of all the different classes of
citizens; in order to combine the interests and feelings of every part of
the community. Publius holds that such a concern is a specious one
because men do not tend to select mirror images of themselves, but
rather those men who are best able to represent their interests, as their
representatives. Giving an example, he maintains that [m]echanics
and manufacturers will always be inclined with few exceptions to give
their voices to merchants in preference to persons of their own
professions or trades [because] . . . [t]hey know that the merchant is
their natural patron and friend; and they are aware that however great
the confidence they may justly feel in their own good sense, their
interest can be more effectually promoted by the merchant than
It is not as if Publius makes an argument for a
permanent ruling class. Neither heredity alone nor family ties provide
the necessary credentials for political office, but rather ones habits in
life. It seems that the work mechanics do does not really prepare
them to be statesmen; and they are sensible that their habits in life
have not been such as to give them those acquired endowments,
without which in a deliberative assembly the greatest natural abilities
are for the most part useless. In contrast, the superior acquirements
of the merchants render them more equal to the contest with any spirit
which might happen to infuse itself into the public councils unfriendly
to the manufacturing and trading interests (35H:170).
This ability to operate effectively in the deliberative assemblies is
also an attribute of the learned professions, who have the added
advantage of being part of no distinct interest in society and are,
therefore, considered to be objective.
When it comes to landed
interests Publius claims that the size of a mans holdings is less
important than other attributes. He suggests that the votes among this
sector of the population will fall upon those in whom they have most

Virtue in the American Republic


confidence; whether these happen to be men of large fortunes or of

moderate property or of no property at all (35H:170-71).
The discussion above reveals three critical points relating to Publius
view of political virtue: (1) certain citizens are better equipped to
handle political leadership than others, and professional training
contributes to such suitability; (2) the general citizenry recognizes the
differences in political capabilities and tends to seek out those most
capable to represent them; and (3) the Constitution reinforces the
popular desire for a republican meritocracy as it facilitates the election
of those with the most political promise.
Next we explore the
specifics of the virtue that Publius expects of the political leadership.
Number 57M speaks directly to the subject of virtue in political
leaders and provides a logical starting point for this investigation. In
it Publius makes clear that the aim of . . . the Constitution is . . . to
obtain for rulers, men who possess the most wisdom to discern and the
most virtue to pursue the common good. In other words, political
leaders are expected to be morally upright and politically wise.5
Probing further, however, we find that Publius is somewhat vague
about the moral dimensions of political virtue, although his
discussions suggest that a virtuous character is both recognizable and
Fit Characters
Recognizing fit characters is not always easy, however, and more than
once Publius speaks of how the people can be fooled by demagoguery
or by men of sinister designs who obtain their votes, then betray
them.6 The Constitution offers some assistance. In the case of the
House, which originally was the only branch of government selected
directly by the people, Publius reasons that the large republic supports
the election of fit characters in two ways. First, there are likely to be
more of them in a large republic; second, he assumes that the larger
electoral districts will enable the people to center on men who possess
the most attractive merit, and the most diffusive and established
characters (10M:47). The Constitution offers further assistance for the
election of fit characters in the other branches. The more advanced


The Federalists Vision of Popular Sovereignty

age required of senators (thirty) and a longer period of citizenship

(nine years) increases the likelihood that these persons will have the
stability of character required for someone who is to serve a six-year
term (62M:319). In addition, senators are elected by the legislatures of
their respective states, and only men of known character are likely to be
considered (27H:136). The president, too, is elected by an intermediate
body selected by the people. In this case the rather complex
constitutional election procedure was designed to enhance the
probability of seeing the station filled by characters preeminent for
ability and virtue (68H:354).
As to maintaining the character of the elected officials, Publius
reasons that biennial elections and the constituency tie are the key
factors in reinforcing the virtuous inclinations of members of the House
(35H:172). That combination of duty, gratitude, interest, and
ambition itself supply the cords by which [the representatives] will
be bound to fidelity and sympathy with the great mass of the people
(57M:297). For senators and the president, Publius suggests it is the
combination of their visibility and a concern with their reputation
along with the electoral process that helps keep them honest. In the
case of senators, the number is so small, that a sensible degree of the
praise and blame of public measures may be the portion of each
individual. As a result, the pride and consequence of its members
may be sensibly incorporated with the reputation and prosperity of the
community (63M:324).
For the president, it is the sole and
undivided responsibility of one man [that] will naturally beget a
livelier sense of duty and a more exact regard to reputation (76H:391).
Political Wisdom
Publius has more to say about political wisdom than he does about
character. His view of political wisdom might be considered
Aristotelian in nature; it consists of a combination of certain skills,
generally acquired in or related to ones profession, and politically
related experience, which provides specialized knowledge and
judgment. Such wisdom does not come easily and is acquired over
time through training and experience. The training starts even before a

Virtue in the American Republic


person enters politics. Publius contends that certain citizens possess

the habits in life that render them more able to operate in deliberative
assemblies. But these habits are acquired, usually through professional
training, and are not inborn (35H:170). Moreover, Publius does not
expect even those citizens who are most suited to the political life to
proceed directly into national politics from their private occupations.
He assumes that representatives of each state . . . will probably in all
cases have been members, and may even at the very time be members
of the state legislature (56M:292). Even after this apprenticeship,
potential statesmen still lack knowledge that is essential to political
wisdom. Publius argues that only part of the specialized knowledge
required for national office may be acquired by means of information
which lie within the compass of men in private as well as public
stations; the other part can only be attained . . . in the station which
requires the use of it [that is, in national public office] (53M:278).
Publius argument suggests that multiple terms in national office
are desirable. In supporting the two-year term for the House of
Representatives, he argues that [n]o man can be a competent legislator
who does not add to an upright intention and a sound judgment, a
certain degree of knowledge of the subjects on which he is to legislate .
. . and part [of this knowledge] can only be attained by experience in
office (53M:278). The logical extension of this argument suggests that
one two-year term is necessary, but that two or more terms are even
better. In fact, he says as much as he reflects on the relatively high
turnover rates in the representative bodies of the states and indicates
why it would be a mistake to imitate such practices in the national
First, high turnover concentrates the power of the
legislature into the hands of the few:
The greater the proportion of new members, and the less the
information of the bulk of the members, the more apt will
they be to fall into the snares that may be laid for them [by
the few who are repeatedly elected]. (53M:2)


The Federalists Vision of Popular Sovereignty

Second, high turnover leads to uncertainty and instability:

Every new election in the states, is found to change one half
of the representatives. From this change of men must proceed
a change of opinion; and from a change of opinions, a change
of measures. But a continual change even of good measures is
inconsistent with every rule of prudence, and every prospect
of success. (62M:322)8
Experience in politics, both at a state and national level, contributes to
the store of knowledge that is necessary for political wisdom, but a
limited constitution also facilitates the development of political
expertise. The fact that the national government is confined to certain,
albeit important, areas of operation enables public officials to become
experts of sorts in those matters most vital to the nation as a whole.9
In an earlier chapter we discussed Publius view of representatives
as both trustees and delegates.
This trusteeship makes sense
specifically because of the assumptions he makes about the virtue of
public officials. It is the combination of character and an accumulation
of political expertise that drives the building of the trustee relationship
between the representative and his constituents over time. This
relationship is beneficial to both the citizen and the operation of the
House because it extends the process of representation beyond the
electoral event and allows continuous communication and political
education to become embedded into the representation process.
Publius seems to expect a trusteeship of a different sort between
the people and the senate and the people and the presidency. The longer
terms and indirect election of these officials places the people at a
greater distance from their activities, but these factors also allow these
officials to focus on longer-term projects and the deliberative will of
Also, while the election of senators and the president
the people.
may be farther removed from the people, their smaller numbers increase
the visibility of these officials and enhance popular oversight of them.

Virtue in the American Republic


In Publius theory a certain type of virtue is also required of citizens.
This virtue consists of what we normally term civic virtue, but Publius
also extends the meaning of virtue to include activities in the private
lives of citizens.
Civic Virtue: The Public Sort
Most of what Publius has to say about the public virtues required of
citizens has already been discussed in previous chapters or earlier in
this one. In reviewing and consolidating what has been said before,
what becomes most striking is the discovery that Publius actually has
high expectations of the American citizenry. Granted, the requirement
for virtue seems to be greater at the start-up of the nation than in its
maintenance, and much of the popular oversight was originally
mediated by intervening bodies. Still, the Constitution holds the
implicit assumption that the American people will step to the plate
with the requisite character and wisdom whenever required to do so.
The early choices faced by the people were weighty ones, and it
was assumed that the founding generation would be attentive to and
knowledgeable about fundamental political principles. For example, in
his discussion of the first stage of the social compact, Publius indicates
that the American people are a chosen people guided by Providence
and destined to greatness, but only if they stay together (2J). This
kind of responsibility certainly implies a high degree of virtue. Publius
makes essentially the same argument regarding the ratification
procedure, which he claims is a test of the capability of human beings
to choose their own government.11
Added to this moral component of public virtue is a certain
requirement for public intelligence.
As a compact theorist, Publius
maintains that the people themselves are involved at this early stage in
the institution of their political laws by right, but he adds that it is
their genius, their intelligence, and their vigilant and manly
spirit that make the wholly popular republic proposed by the
Constitution possible.12 It is also interesting how Publius recasts the
issue of virtue and republicanism in his initial defense of the republican
nature of the Constitution. He reverses the usual cause and effect


The Federalists Vision of Popular Sovereignty

relationship in his assertion that no other form [of government than

the republican variety] would be reconcilable with the genius of the
people of America (39M:194).13
The ordering of the premises
indicates that it is the genius of the people that mandates a republic,
not the reverse.
While the demands on the people seem to be heaviest at the time
of the founding, a certain amount of virtue is still required to maintain
the republic. The citizens are expected to be the guardians of their
Constitution and the overseers of their elected officials. Moreover,
Publius suggests that the people establish the standards of political
conduct for their public officials. The importance of the publics role
in the setting of standards follows from the rather skimpy list of
qualifications for the national offices outlined in the Constitution and
is reinforced by Publius repeated assertion that the people will tend to
select men of merit when given adequate opportunity to do so.
this point, however, Publius might be faulted for overstating his case
because originally the people had a direct role only in the selection of
the House of Representatives.
The competence required of the people that is assumed in Publius
model does not apply so much to actual day-to-day governance as it
does to oversight. Publius recognizes that ordinary citizens do not
possess the credentials, the expertise, the time, or the desire to tend to
the detailed affairs of the national government themselves. This is
where political leadership from those with expertise and wisdom is
expected and required. It is not so much that the people give over
political decision-making to these leaders, but rather that the leaders
educate and inform them on the parameters of the debate so that some
kind of national consensus can be reached on national issues.
Certainly, the people are expected to superintend the basic principles
that define the manner in which the government operates and to oversee
the actions of those who are charged with the actual governance.
This final authority invested in the people, combined with the
expectation of political wisdom by their leaders, creates a situation that
has the capacity to produce excellence in the republic. Publius
indicates that the Constitution has struck the proper balance between

Virtue in the American Republic


the virtue required of the people and the virtue required of their
officials. However, even with all the auxiliary precautions provided
for in the Constitution, Publius theory also indicates the possibility of
a less glowing scenario. If the people become lazy or less politically
competent, the politically wise may not be courted for positions of
leadership. The result would be a gradual erosion of the republic.
Given that such degeneration could occur even under the original
Constitution, where the people were directly involved in the election of
only one branch of government, it seems logical to conclude that if the
virtue of the people slackens, the degenerative process would be
hastened by increasing direct popular involvement in the electoral
process.15 Thus, Publius theory implies that as popular involvement
increases so, too, does the requirement for public virtue.
Civic Virtue: The Private Sort
The second type of virtue that Publius assumes and requires of the
people in this American republic reaches into the activities of their
private lives.
The people are assumed and expected to have
industrious habits in their work if the republic is to be viable.16 In
this case Publius vision of virtue takes on a decidedly modern cast, as
it signals the belief that the good life can exist, to some extent at least,
outside public service. Like Aristotle, Publius recognizes the value of
diversity to society. But he moves beyond Aristotle toward the new
breed of political economists as he discusses benefits to the common
good from the pursuit of private gain17 and, in the process, upgrades
the status of non-political endeavors in the polis. Publius first alludes
to the modern virtue of industry in a discussion of the potential
threat of standing armies:
The industrious habits of the people of the present day,
absorbed in the pursuits of gain, and devoted to the
improvements of agriculture and commerce are incompatible
with the condition of a nation of soldiers which was the true
condition of [the ancient] republics. The means of revenue,
which have been so greatly multiplied by the increase of gold
and silver, and of the arts of industry, and the science of
finance, which is the offspring of modern times, concurring


The Federalists Vision of Popular Sovereignty

with the habits of nations, have produced an entire revolution
in the system of war . . . (8H:35)

Although at times Publius adopts some of the language of political

economists, he does not go so far as to advocate that self-interest be the
guiding assumption of the science of politics. While Publius theory
holds private pursuits in higher esteem than do the ancient models, he
does not believe that private interests should be pursued in the public
forum. For him, the public benefits of private gain come from the
enlargement of the tax base, not from the competitive clash of private
interests in the assemblies of government.
Publius view is
encapsulated in the following passage:
The prosperity of commerce is now perceived and
acknowledged, by all enlightened statesmen, to be the most
useful as well as the most productive source of national
wealth; and has accordingly become a primary object of their
political cares. (12H:55)
Industriousness in the pursuit of private gain is important because it
provides money, which is with propriety considered as the vital
principle of the body politic; as that which sustains its life and motion,
and enables it to perform its most essential functions (30H:138).
The industrious habits that already exist in the people are also
encouraged by the Constitution, which contains a provision to
promote the progress of science and useful arts, by securing for a
limited time, to authors and inventors, the exclusive right, to their
respective writings and discoveries (43M:222). This is surely a
situation, observes Publius, where public good fully coincides in both
cases, with the claims of individuals (222).
Publius theory of American republicanism, while modern and
scientific, does not ignore the requirement for virtue. He does,

Virtue in the American Republic


however, distinguish between the virtue required of the citizens and

that required of those who are to operate the government.
Aristotle, Publius maintains that political leaders should posses a
special type of virtue and that the amount of virtue required in the
people is directly proportional to the extent of their involvement in the
government. What is modern in his theory is his approach to
perfecting the political arena. He does not seek to make better men;
rather, he focuses on improving their institutions. At some point,
however, the ancient and modern notions coincide. While Publius
holds a realistic rather than idealistic view of human nature, he uses his
science of politics to court and nurture the best parts of that nature as
he seeks to mitigate the results of its less admirable aspects.
Publius standards are high for the political virtue of leaders. In
the ideal, public officials should possess a combination of character and
wisdom that makes them vigilant in their pursuit of justice and the
common good. Although he recognizes that the ideal is just that, he
believes that the constitutional arrangements will produce enough
virtue even in the worst of times. If not, the people are the ultimate
Publius expectations for virtue in the people are also somewhat
lofty. However, demands on the people to exercise a high degree of
virtue tend to be episodic rather than continuous, and the virtues
required are of the more general sort rather than those pertaining
directly to political officials. Greater levels of virtue are required of the
people, for example, during the founding period or when their elected
officials either attempt to usurp their powers or neglect their
responsibilities. Under ordinary circumstances, however, basic good
judgment and a reasonable knowledge of and interest in general
political principles is sufficient for the people to be suitable guardians
of the Constitution and competent electors and overseers of their public
While Publius does not expect ordinary citizens to spend a great
deal of time engaged in the business of the nation, he does assume and
expect something of them as private citizens that is, industrious
habits in their private pursuits. He considers the private virtue of
industry an important one in a modern republic, because private


The Federalists Vision of Popular Sovereignty

enterprise creates the national wealth required to fulfill the promise of

the republic. In the American case, in particular, public and private
virtues are necessary not only to attain good government, but also to
achieve the greatness for which the American people are destined.

Popular Sovereignty: Then and Now

In The Federalist, Publius clearly articulates the founders theory of

popular sovereignty and, with it, a more comprehensive and complex
vision of the social compact than any theorist in history. However,
the value of this text transcends its historical and even its theoretical
contributions. Publius insights into the practical issues associated
with popular rule continue to be relevant today.
He speaks to the emerging democratic nations of the twenty-first
century about the importance of social cohesion and reliable borders,
about the role of leadership in a democratic regime, about mechanisms
for protecting against abuse of power, about federal systems, about the
demands placed on people themselves, and, most importantly, about
the necessity of framing a constitution that suits the people it is to
Closer to home, Publius also has something to say. The question
of how the American people should be engaged in their government
underlies much of the contemporary political discourse. For example,
questions relating to the nature and extent of popular control drive the
debate on campaign finance reform, are central to the dispute about
what constitutes judicial activism, and go to the heart of the on-going
discourse about the proper role of the national government. Publius
speaks with a voice from the past that offers an original in both
senses of the word perspective on these and other issues.



The Federalists Vision of Popular Sovereignty


Publius was right to draw attention to the first stage of the social
compact. The boundaries that delineate civil society do matter. A
society that cannot maintain its civility has little hope of nurturing
stable democratic institutions. It now may seem obvious that some
social and/or political connections within a society are essential for
national harmony and stability. However, the importance of these
factors had been largely overlooked until well into the twentieth
century, probably because most of the worlds population lived under
some form of autocratic rule until recently. These dictatorships, by
definition, provided a simple solution for peace and stability a will
independent of the people and left the people out of the political
process altogether. Under such regimes the peoples role was to obey
the laws or bear the consequences.
As former autocratic regimes pursued democratic reforms, the
importance of social ties or at least a common political perspective has
become apparent. Witness the demise of Yugoslavia, a country that
had been touted as the most likely candidate for social democracy by
political scientists in the 1970s. However, the death of Josip Broz
Tito, dictator from 1945 through 1980, produced a leadership vacuum.
By the end of the decade, historic rivalries gave rise to ethnic conflicts,
and this nation that had once seemed especially suited to a transition to
democratic rule degenerated into something akin to the nasty and
brutish pre-political state described by Hobbes. The dissolution of the
former Soviet Union provides further evidence of the important role of
social bonds. In this case the breaking apart occurred relatively
peacefully, and it, therefore, provides a striking example of how a
people or peoples can define or redefine the civil boundaries
that work best for them. Unlike the founding generation of Americans,
the Soviet peoples chose disunion rather than union. Apparently, the
political bonds forced upon the Soviet peoples by the communist
regime were not strong enough to bind them into a lasting society.
There are, of course, other recent examples that demonstrate the
peoples role in choosing just how broadly or narrowly they want to
define civil society. The division of Czechoslovakia into two republics
represents a narrowing of the definition.

Implications: Popular Sovereignty Then and Now


Afghanistan may represent the opposite case a society that

defines itself in broader terms. At this time it is not altogether clear
whether the attempt to reunify Afghanistan after the defeat of the
Taliban will be supported by the people. However, such uncertainty
also points toward a crucial role for leadership. Publius regards
competent leaders, focused on the national interest, to be essential in
the early stages of a democratic regime. He does not pretend that
political leaders can produce social or political bonds where none
previously existed, but he does demonstrate, by his own example, how
leaders can reinforce whatever connections a group of people do share
and why it might be important to do so. Publius also offers other
lessons to a potential Afghan democracy. He speaks of the advantages
of a federal system of governance in a large, diverse republic. In a bilevel system, religious and/or ethnic differences can be reflected in local
laws while the national government provides for the defense and
economic security of everyone.
Moreover, the numerous public
forums of a federal system can serve an important educative function,
affording people with little prior experience ample opportunity to
practice democracy. Further, Publius discusses constitutional devices
that can be useful for stemming abuse of power: checks, balances,
separation of power, limited government, and so forth. At the same
time, however, he emphasizes that the continuance of democratic
institutions is ultimately the responsibility of the people. What is
worrisome in the Afghan situation is that the people have so little
experience with such institutions. This brings us to the advice first
stated by Aristotle but reiterated by Publius: the constitutional design
must take into account the particular people it is to serve.
At first glance, it might seem that Publius has more to say to emerging
democracies in the Third World than to Americans today. Not only is
the United States much larger in size and population than it was in his
day, but this once weak and struggling nation has become the sole
super-power of the world.
In fact, Publius has much to say to
Americans today. Furthermore, Americans have a predisposition to
listen; reaching back to original principles is a well-established habit,


The Federalists Vision of Popular Sovereignty

first encouraged by early state constitutions. Throughout their history,

Americans have sought guidance, and oftentimes justification, for their
political choices from the wisdom of the founders. Indeed, original
political principles supply the affective ties that unite Americans today.
We rediscovered this only recently.
During the last quarter century, a number of different voices in the
United States have questioned the viability of American society. The
issue was how to deal with a nation that was much more diverse than
the founders ever could have imagined. No longer was American
society basically white, European, and Christian. The bonds of
common culture, religion, and language were no longer relevant. Two
points of view emerged concerning this diversity. Some Americans
felt that the diversity of society should be nurtured and celebrated.
Others feared that group distinctions prevented the melding of cultures
that was a necessary prerequisite for defining a common good. The
question underlying both points of view was: did the people of
America have enough in common to sustain a common bond?
That was before September 11, 2001. In the aftermath of the
terrorist attacks on the World Trade Center and the Pentagon, the
people of America seem to have rediscovered what they share.
Significantly, it is not just a common enemy. Instead, it appears,
Americans have been re-awakened to their common political vision and
to the importance of preserving it.
Political principles matter.
Americans share a belief in the Constitution and the values it embraces
popular sovereignty, justice, security, liberty, continuity, and
progress. It seems that a two-hundred-year struggle to perfect the
union, while still falling short of the ultimate goal, nevertheless, has
sustained a political vision that is strong enough to bind a people who
possess diverse ethnic, religious, and cultural backgrounds into one
Probing deeper, however, we find some incongruity. While
original principles are still meaningful to Americans today, the
application of some of these principles has changed over time. For
example, Publius offers a strong notion of popular sovereignty for his
time, but in many respects, it is a different version than the one in
practice in America today. His vision of popular sovereignty was
molded by principles inherent in the compact itself, by the federal

Implications: Popular Sovereignty Then and Now


nature of the American constitutional system, and by a strong

preference for a deliberative democracy over the populist form.
Examining Publius original vision of how he expected the people
to be engaged in their government makes interesting history, but it
makes practical sense, also. To some extent, current issues are merely
repackaged versions of the same problems that have plagued
democracies through the ages. Publius clear explanation of how and
why he expected popular sovereignty to function in the American
political system provides a different lens but one rooted in American
history through which to view present-day issues. His consultancy
does not necessarily provide solutions to todays problems and may
even raise new questions. However, it is quite possible that his
perspective will broaden ours and, therefore, lead to better solutions to
our problems.
Popular Sovereignty, the Constitution, and the Court
As a compact theorist, Publius logically stresses the importance of
popular involvement in the fundamental decisions relating to the
compact itself including those pertaining to the ratification and
alteration of the Constitution. Publius regards the inclusion of a
practicable amendment procedure both a necessary tool for the
preservation and improvement of the Constitution and an important
means of maintaining popular control over it. The possibility of
amendment is one way in which participation in the American compact
is extended into the future, as it places the Constitution in the care of
the people of all generations.
Publius is also a realist. Although the Constitution contains a
specified procedure for amendment, he explains that it is not designed
as a rigid set of rules. Some flexibility is needed to enable the
legislative and executive departments of future governments to function
when confronted by situations unanticipated by the original framers. In
addition, some degree of interpretation is intrinsic in the judicial
process itself. Nevertheless, Publius draws a distinction between
flexibility and alteration. Some flexibilities arise from the concurrent
powers inherent in the federal structure of the government. Other
flexibilities are implicit in the powers delegated by the Constitution.


The Federalists Vision of Popular Sovereignty

However, changes in fundamental principles, in operational principles,

or in basic structure are reserved for the amendment process.
From the beginning, Americans were wary of placing too much
authority in the courts. Of all public officials, judges are most remote
from the people and, therefore, least accountable to them. The concerns
raised in Publius time were the same ones we hear today that judges
would legislate from the bench, substituting their views for those of
the legislature, the branch closest to the people. Thus, while Publius
was a strong advocate for judicial review, he was careful to define this
power narrowly. This being said, it is important to note that these
early discussions about the judiciary were all hypothetical. Americans
had no experience with a separate judiciary in a federal system of
government. This is why Article III of the Constitution, which defines
the judicial branch, is so sketchy, and why the Constitution explicitly
grants Congress the power to further refine the national judiciary.
The Constitution of today bears little resemblance to the original
document or even the 1792 version that includes the first ten
amendments (commonly referred to as the Bill of Rights), even though
only seventeen amendments have been added since then. How is such
change possible? Constitutional law, like any other, embodies all of
the judicial decisions pertaining to it. Such decisions are required to
clarify any law, even legislation that consists of thousands of pages.
Thus it is not unexpected that a constitution that is brief and, at times,
ambiguous should require judicial clarification. This is not the issue,
however. The issue is: where, if at all, does judicial interpretation
cross the line to become alteration? Simply put: to what extent has the
Court clarified the Constitution and to what extent has it amended it?
The answer to this question depends on whom one asks. Most
constitutional scholars agree that during its two-hundred-plus year
history, the U.S. Supreme Court has been transformed from the
weakest branch to a co-equal and respected branch of the federal
government. Likewise, most agree that this transformation has
occurred primarily during the last century. The argument lies in
whether and how the Court has overstepped its role of interpreter of the
laws to become, itself, a policy-maker.

Implications: Popular Sovereignty Then and Now


A brief foray into history reveals that the Courts growth in power
has paralleled that of the national government. What made it easy for
the Court to gain influence at first was that it did so by intervening
into state matters, not by threatening the other branches of the national
government. Therefore, the constitutional check that Publius foresaw
that would pit the ambition of one branch of the national government
against the ambition of another did not occur until the Court had
already become a formidable power.1 The Civil War Amendments
(thirteen, fourteen, and fifteen) put in place to free the slaves and
guarantee them equal rights set the stage for the expansion of judicial
authority. The Fourteenth Amendment, which the Court applied much
more broadly than originally anticipated, was the primary vehicle for
the extension of its power. The due process clause of this amendment
proved to be a bonanza for the national judiciary. It reads: nor shall
any State deprive any person of life, liberty, or property, without due
process of law . . . This clause opened the door for increasing
involvement by the national judiciary into cases relating to state laws.
The doctrine of substantive due process first emerged in the late
nineteenth century. Employed by the Court in conjunction with the
due process clause of the Fourteenth Amendment, the doctrine was
used to void much of the progressive legislation passed by the states
that had sought to abolish child labor and establish better conditions in
the workplace.2 Substantive due process takes the concept of due
process an important step further than previous courts had been willing
to go. Due process has generally related to legal procedures that protect
citizens against arbitrariness and insure their fair treatment under the
law. For example, a government can deprive an individual of life
(capital punishment), liberty (imprisonment), or property (fine for an
offense), but only after following certain legal procedures (i.e. bringing
formal charges, allowing for a defense, providing a jury trial, etc.). By
introducing a substantive reading of this clause, the Court is able to
look beyond procedural fairness to examine the content of legislation.
Under this doctrine the Court can then argue that certain liberties are so
fundamental that they cannot be denied by a state unless the state can
prove a compelling interest for doing so. This substantive reading of
due process ultimately means that the states are potentially


The Federalists Vision of Popular Sovereignty

answerable to the Supreme Court for all sorts of laws that were not
previously under its jurisdiction.
More recently, the Roe v. Wade decision used the due process
clause of the Fourteenth Amendment in much the same way.3 In this
case the Court voided a Texas law that prohibited all abortions except
to save the life of the mother on the grounds that it violated the
constitutional right to privacy, founded in the Fourteenth
Amendments concept of personal liberty. The decision also set forth
the circumstances under which states could and could not intervene in a
womans decision to have an abortion. Dissenting justices claimed that
the majority neither established a link between abortion and a privacy
right nor weighed the interest of the state. Although the dissenting
arguments were basically in the strict constructionist vein, a number of
other scholars who generally favor broader constitutional interpretation
had concerns with the decision as well. Three factors subjected the Roe
opinion to controversy: (1) the lack of textual or other grounding in the
Constitution for this application of the right to privacy, (2) the
fundamental nature of the issue itself, and (3) the reliance on medical
opinion in the decision.
Archibald Cox (1976, 113) refers to the decision as a set of
hospital rules. He agrees in part with the Courts dissenters, saying
that the Court failed to establish the legitimacy of the decision and
warns that the substitution of medical judgments for sound legal
reasoning may set a dangerous precedent. Paul Freund (1983) describes
the decision as a prescription of a kind of legislative code. His
concern is that the decision by the Court not only reads too much like
legislation but that it preempts a legislative solution. Ruth BaderGinsberg (1985) finds fault with the decisions grounding in the right
to privacy; she would have preferred an equal protection justification.
In a later article (1992), she discusses quite candidly how the Court
can reinforce or signal a green light for a social change. While she
speaks of the positive role of the Court in social policy, she also urges
a temperate brand of [judicial] decision-making. She laments that the
decision in Roe halted a political process that was moving in a reform
direction and thereby . . . prolonged divisiveness and deferred stable
settlement of the issue.

Implications: Popular Sovereignty Then and Now


This brings us to the crux of the issue, which is: when is the
Court the appropriate forum for deciding questions of values or
liberties where the Constitution provides no clear textual guidance?
Justice Holmes in his Lochner (1905) dissent observes: I think that
the word liberty, in the 14th Amendment, is perverted when it is held
to prevent the natural outcome of a dominant opinion, unless it can be
said that a rational and fair man necessarily would admit that the
statute proposed would infringe fundamental principles as they have
been understood by the traditions of our people and our law.5 In both
types of cases discussed above, critics charge that the majority on the
Court rendered a judgment based more on its own political philosophy
than on legal or constitutional principles. In both cases the charge has
Recent research suggests that judicial intrusion might not matter
because the Court tends to follow the people anyway that is, the
Courts rulings tend to coincide with the opinions of a majority of the
American people.6 However, such a conclusion suggests that product
trumps process. Publius tells us just the opposite that the Court is a
check on the legislative process, not a substitute for it. In a federal
system based on popular sovereignty, political decisions are supposed
to be made in the institutions closest to the people. The bicameral
legislative forums in the American constitutional system provide
opportunities for the venting and cooling of passions, venues for
learning and reevaluation, and time for finding common ground.
Moreover, there is always another day for those dissatisfied with
legislation. The rough and tumble of the democratic process is much
less evident in the courts, and because the judicial process puts so
much stock in precedent, judicial decisions tend to be viewed as more
Publius was right in forecasting that the judiciary would play an
indispensable role in a constitutional system of government. He did
not anticipate, however, that the Court would have a major role in
altering and adding to the Constitution. The growing role of the Court
during its two-hundred-plus year history brings to mind some
important questions: Has the Court read changes into the Constitution
that would have been more appropriately handled through ordinary
legislation? Has the Constitution become too much an object of awe,
and has this led to a reluctance to introduce formal amendments to it?
Would the Constitution become less revered if it were amended more


The Federalists Vision of Popular Sovereignty

often? Or has the amendment procedure become just too difficult, and
should it be simplified? Publius viewed the Constitution as belonging
to the people and stressed the importance of their role in its oversight.
Have the American people moved away from Publius vision for better
or for worse?
Popular Sovereignty in a Federal System of Government
The design of the Constitution takes into account the special situation
in America and establishes a central national government while leaving
in place a decentralized system of state governments. The American
people, Publius tells us, are sovereign over both. He views popular
sovereignty within the context of this federal system and emphasizes
that the national government has important though limited powers to
provide peace and an economic climate in which the people and states
can thrive. Everything else is left to the states.
Why does this dichotomy matter? It matters because Publius did
not expect the new constitution to change appreciably the political
habits of ordinary citizens. At the time, participatory politics in
America revolved around state and local governments, where the
political decisions that affected their daily lives were made. Publius
did not anticipate that most citizens would have the interest,
knowledge, or time to be heavily involved in national politics, except
in extraordinary circumstances. Nevertheless, the people would have
various degrees of control over the national government through the
electoral system.
At the national level, citizens primary contact with government
would be through directly elected representatives in their district.
Publius tells us that these representatives would reflect the high
standards of the people because they would, no doubt, select them on
the basis of their experience, integrity, and qualifications.
anticipated that an on-going relationship would develop between the
representatives and the citizens they serve and that this relationship
would ensure a reciprocal exchange of information with the people
weighing in on the issues most important to them and the
representatives explaining their views and votes. Moreover, Publius
hoped that this relationship would not only supply citizens with the

Implications: Popular Sovereignty Then and Now


contact they needed with the national government but also remind the
representatives of their duties as public servants.
Publius further explains why the connections between the people
and Senate and the people and the President are less direct. A product
of the great compromise between the large and small states, the Senate
emerged as the body designated to represent the states in the federal
government. Therefore, its members were originally elected by the
state legislatures, each state being accorded two Senators.
President, while not elected directly by the people, would be chosen by
electors specifically selected for this task in each state.
intervention was designed to insure the selection of fit characters for
the presidency, the logic being that electors would be better able to
scrutinize the reputation of possible candidates than the public at large.
The Constitution gives state legislatures the power to determine the
method for choosing electors. Thus, if the legislature itself selected the
electors, the election of the President would be three steps removed
from the people.
Over the past two hundred years, as the population has increased
and suffrage has been broadened, so too have the opportunities for
popular participation in the electoral process. As might be expected,
the least change has occurred in the House of Representatives, where
members have always been elected directly by the people. Moreover,
Richard Fennos (1978) research confirms the existence of the
relationship between House members and their constituents that
Publius only hypothesized. Fenno demonstrates that representatives
spend a great deal of time with their constituents. Modern day travel
actually has made it easier for them to maintain contact with the folks
at home. Also, poll after poll shows that the public, even when
disillusioned about government in general, give high marks to their
own representatives. Indeed, the statistics bear out this advantage: with
only one exception since 1976, the percentage of House incumbents
who have been reelected has topped 90%.7 Another congressional
scholar, Morris Fiorina (1989), attributes such incumbency advantage
to constituency service helping constituents obtain funds or
services from Washington.
On the down- (or up-) side of this,
depending on ones point of view, Fiorina also suggests that the high


The Federalists Vision of Popular Sovereignty

pay-off to representatives for the provision of such services insures a

bias toward an ever-increasing national government.
As for the Senate, the Seventeenth Amendment has placed the
election of senators directly in the hands of the people, although each
state continues to have equal representation in this body. It is difficult
to know just how much effect direct election has had, however. The
Lincoln-Douglas debates demonstrate that the people had considerable
influence over this choice as far back as the 1850s, when Senators were
still selected by the state legislatures. Under the original senatorial
selection process, citizens had multiple opportunities to communicate
their preferences to their state legislatures, but their influence was only
indirect. Now, citizens can be directly involved in the selection of
their senators but have just one chance to make their choice known
when they vote. Citizens today also have the opportunity to play a
larger role in the selection of House and Senate candidates for each
party, but, as we shall discuss in a moment, few take advantage of this
Overall, the most extensive change has occurred in the election of
the president, even though there have been no formal changes to the
electoral college system. Not only is the office of the presidency now
considered the property of the people, but the people have had an
increasing role in his/her election. With the advent of political parties,
the electoral college has been subsumed into the party system. More
recently, both political parties have democratized the process for
candidate selection. Where once candidates were chosen in back-rooms
by party bosses, they now are chosen mainly through primary elections
in the states. In the presidential election, a citizens vote for a
candidate generally counts as a vote for a slate of electors for the party
of that candidate. The winner-take-all system used in most states
provides the party of the candidate with the most votes all the electors
for that state. Because the electors are expected, although not legally
required, to cast their votes for their partys candidate, the meetings of
the electoral college have become little more than a formality
After more than two hundred years of improvements, flaws in
electoral procedures continue to reveal themselves. Some think the

Implications: Popular Sovereignty Then and Now


electoral college is an outmoded system and that the President should

be elected directly. In a few cases, most recently in 2000, the
presidential candidate with the most popular votes did not receive a
majority of electoral votes and therefore did not become president.
From time to time, schemes to streamline the presidential election
process have been proposed. Shortly after the 2000 election there were
again calls for a constitutional amendment to eliminate the electoral
college. On close inspection, however, there appears to be no obvious
fix. Majority rule is a major precept of democratic decision-making,
and the electoral college system tends to give one candidate a majority
victory. This outcome does not necessarily occur with a popular vote,
especially when third party candidates attract a reasonable following.
In several elections, including the most recent contest, neither of the
major candidates received a majority of the popular vote.8 A direct
procedure in such elections would have sent the ultimate decision to
the House, absent a constitutional amendment providing for either a
plurality decision or a run-off election. The other argument for keeping
the electoral college with a winner-take-all system is that it encourages
candidates to wage a nationwide campaign rather than concentrate all
their efforts in the larger population centers.
Moreover, although over time electoral processes have become
more democratic in concept, it is not altogether clear whether they have
become more democratic in fact. First, very few people
vote in the primary elections. Therefore, extremists in both parties
tend to select the candidates because they are the most likely to vote.
Ironically, the primary system may produce candidates who are less
acceptable to the majority of citizens than those who would have been
chosen by the back-room method.9 The solution lies in greater popular
participation in the primary process, but the people as yet seem
unwilling to get to the polls. Second, it is difficult to know what to
make of popular sovereignty when a voter turnout of 55% is considered
good for presidential elections, and much lower figures are typical for
off-year national and local elections. As a consequence, a mere quarter
of eligible voters decide who will run the country.
These figures might not surprise Publius, however. He realized
that most citizens had a life outside politics earning a living,


The Federalists Vision of Popular Sovereignty

spending time with their families, being part of their communities.

Furthermore, he understood that a strong private sector, which would
feed the public treasury, was essential to the health of the republic.
Publius also knew that Americans were practiced in democracy but
would probably engage in most of their political activity close to
home. They were unlikely to become very involved in national
politics except in times of national emergency. Publius must have
seen the mediated election of senators and the president as a prudent
expedient. These indirect processes gave citizens input into and
ultimate control over the process, while leaving the selection of fit
characters to those who were likely to be most familiar with the
character and qualifications of the various candidates.
Today, as new systems have attempted to give the people more
democracy, the people seem to participate less. Perhaps low voter
turnout means that the American people have had enough. Publius
certainly recognized that democracy was a burden as well as a privilege.
The American constitution, he tells us, was designed to achieve a
balance: enough democracy to give the people ultimate control but not
too much to overwhelm them. Over the years, the federal system has
placed increasing burdens on American citizens. Consider all the state
and local officials up for election, including judges in some states.
Add to these the many other items requiring popular approval that
either appear on the ballot or are subject to special elections: school
bond issues, special propositions, and amendments to state
constitutions. Ballots have become daunting and elections are not
infrequent. Then there is jury service the duty of every citizen in a
democracy. In addition, citizens engage in activities that are not
strictly political but contribute to the community, such as volunteering
at the local soup kitchen, mentoring a child in a neighborhood school,
attending parent-teacher meetings, serving as an officer in the PTA,
fundraising for the symphony, and so forth.
Just how much democracy can people bear? Is it possible that
further democratization of political processes has overwhelmed many
citizens?10 In some ways it is unfair to compare American voter rates
with those of European counties where there are far fewer electoral

Implications: Popular Sovereignty Then and Now


decisions. Perhaps it is time to find a broader measure of citizen

engagement in America today. It may be possible that people are more
politically involved than we think but are rationally choosing where
and how to participate in the community. Or, perhaps, the same few
people are doing everything. Whatever the answer, our on-going
discourse about popular sovereignty in America today cannot ignore the
complexity and sheer magnitude of political activities confronting our
Deliberative Democracy
Publius makes a clear distinction between the deliberative sense of the
community and populism. The former relies on reasoned decisionmaking while the latter is subject to passion. As he explains, the
American model intentionally avoids a streamlined method of decisionmaking. The various checks and balances within the system are
supposed to support a slow deliberative process. Delay is expected to
serve three purposes. One, it allows for the cooling of passions. Two,
it provides the time required to devise a solution that can accommodate
several points of view. Three, a somewhat lengthy debate serves to
educate the public on what are often complex issues.
That is how the system was supposed to work. Indeed, there is
some evidence that this is how the system does work or has
worked.11 Still, there are complaints about the lack of productivity in
Congress, the pitfalls of divided government, and the unpleasantness of
partisan politics. The public, or at least the media, clamor for action.
If we dig a bit deeper, we find that deliberation in public forums
has been affected by three interventions from the outside: interest
groups, political contributions, and public opinion polling. All three
of these interventions have altered the link between the people and their
representatives. Powerful interest groups tend to operate in the
background provided by congressional committees and bureaucratic
agencies. A whole body of literature exists, describing the cozy
relationships built on common expertise and interests. Such interests
cover a broad spectrum, including businesses, labor groups, agriculture,
trial lawyers, teachers, doctors, ethnic and racial minorities, feminists,
environmentalists, consumer advocates, public interest groups, and so
forth. It is not so much a problem when these interest groups inform


The Federalists Vision of Popular Sovereignty

legislators, unless only one side of an issue is considered. The

problem occurs when legislation is rushed through Congress, which
delegates or, through default, passes on to the bureaucracy many
decisions that should be legislative. When this happens, the decisions
of the republic are made by non-elected bureaucratic officials and,
oftentimes, top officials of particular interest groups.
Interest groups, however, are not necessarily undesirable. In
certain cases they can be advocates for those with no electoral voice,
such as children. In others they can strengthen the voice of groups that
tend to be underrepresented, providing, of course, that the
spokespersons actually reflect the views of the group and that the
groups views are relatively homogeneous. Publius himself proposed
that the remedy for faction was to be found in the large number of
interests that flowed from a large, diverse population. So are interest
groups good or bad, helpful to the deliberative process or not?
The influence of money in politics also seems to be a perennial
issue. Outsized campaign contributions can lead to corruption, unequal
political access, and unsound policy decisions. Moreover, there is
undoubtedly some effect on representation when contributors are from
outside a representatives district or from outside a Senators state.
However, this problem does not lend itself to easy resolution either.
The Supreme Court has ruled that campaign contributions to individual
candidates can be limited but that limitations on direct personal
expenditures for political advocacy violate the first amendment. In the
meantime, political operatives have discovered ways to get the benefits
of the first type of contribution while ostensibly classifying it as the
second type of expenditure.
Also, limitations on campaign
contributions tend to hurt disproportionately those candidates who are
challenging incumbents. These challengers get caught up in the
chicken-egg conundrum since they need money to get their message out
to the public, yet they need to get their message out to obtain money.
Finally, there are polls. The importance of political polling in the
modern American landscape is reflected by the fact that political
reporting often features the horserace instead of the substance of
political issues. Consider that much of the polling occurs during the

Implications: Popular Sovereignty Then and Now


dinner-hour, and respondents usually are not given time to reflect

before answering the questions. Moreover, the results of polling
depend on what questions are asked and how they are framed. Yet
widespread polling has elevated the public and pollsters to a
consultative role on complex national policy issues.
This populist approach to public policy is the opposite of what
Publius envisioned. He expected that leadership would be one feature
of the American political system that data gathering and extensive
public discussions would occur within public forums, which were
ultimately responsible to the people, and that the formulation of
possible solutions would come from these discussions. In the process
the public or those who were interested would become informed
about the issues and develop what he termed a deliberate sense of the
community. Popular snap judgments, like those encouraged by
opinion polls, were precisely what Publius considered dangerous to the
democratic process, particularly if these judgments guided policymaking. Of course, feedback from the people is important in any
democratic system, but elections themselves were to be the main
mechanism for this feedback. One almost has to wonder whether the
people today view polls as a replacement for elections. Do elections
seem predetermined? Does polling actually reduce voter turnout?
Certainly, a judicious use of polling has value to both politicians and
the public. However, might Publius ghost be right to question the
influence on the American democratic process by representative
samples, un-elected pollsters, and their un-elected clients who decide
which questions to ask and how to ask them?
Publius still speaks with a strong voice.
He tells the worlds nascent democracies that merely wanting to be
democratic is not enough. Strong affective social bonds whether
based on history, culture, religion, or something else are an essential
basis for durable democratic institutions. So too are leaders who are
competent, dedicated, and willing to endure sacrifice for the good of
their nations. Publius warns that a democratic regime is not


The Federalists Vision of Popular Sovereignty

necessarily a just one. Popular tyranny can result in anarchy or the

oppression of minorities. Thus, democracy must be tempered with
controls. Publius discusses the devices that can prevent leaders from
abusing their power, the most important of which is electoral control
by the people themselves. In short, fashioning durable and just
democratic institutions is a difficult task, requiring the right set of
conditions, the right leadership, the dedication of the people, and a
sprinkling of luck. But the rewards are great.
Publius also has much to say to the people of America despite the
changes that have taken place in the nation since the founding. From
his perspective, it looks as if the American people may be neglecting
their role as guardians of the Constitution. At the same time, the
deliberative bodies seem to be growing more populist and less
deliberative. This is Publius notion of popular sovereignty in reverse!
To elaborate: today many fundamental decisions have been
removed from the political arenas and assumed by the courts, the
branch of government most remote from the people. One wonders how
much of this transfer of power has been intentional and how much
coincidental. Did the Court step in to fill a perceived void (insufficient
interest by or virtue in the people)? Has this increased intervention by
the Court been a product of ambition (a possibility suggested by
Publius in 51M) and/or opportunity (supplied by the Fourteenth
Amendment)? Curiously, it seems that the more democratic the
political bodies have become, the more the Court has intervened in
fundamental political decisions. In the meantime, public-opinion
polling seems to drive policy-making in the deliberative bodies.
Added to all this are increasing political opportunities for the
people and more burdensome demands on them, and potentially
countervailing interventions that Publius did not anticipate. The
question that naturally emerges is: where do we go from here? My
analysis of Publius theory does not answer this question. However, it
does, I believe, provide a useful framework for a discussion of the issue
that is at the heart of American politics: what is and what should be the
role of WE THE PEOPLE in the American constitutional system


1. From Edwards, Wattenberg, and Lineberry, Government in America, 51.
2. For an illustration of how the competitive model of democracy
views the decision making process, see Chubb and Moe, Politics, Markets,
and Americas Schools.
3. There is little new or startling in the language of the Preamble, which
is similar to that in the early state constitutions. Thus, there is scant
criticism directed towards the Preamble by opponents of the Constitution.
One notable exception appears in a speech by Patrick Henry before the
Virginia Ratifying Convention on June 5, 1788. Henry specifically
criticizes the expression we the people as evidence of the alarming
transition, from Confederacy to a consolidated Government. See Ketchum
ed., Anti-Federalist Papers, 199.
4. My reading of the Constitution and The Federalist yields a list of
eight operational principles, most of which are familiar to anyone who has
had a course in American government. They include: extensive republic,
representation, federalism, checks, balances, separation of powers,
bicameralism, and limited government.
Publius hopes that these
principles in combination will result in a deliberative form of democracy.
5. This phenomenon is not unusual in political theory. Publius
himself points out the imprecision of language in 37M, as does Hobbes i n
Leviathan. In the development of any new theory, existing language i s
seldom adequate to describe new concepts. Unlike physicists, who coin all
sorts of interesting words to attach to their new concepts, political
theorists tend to make due with the existing vocabulary (a practice long
followed because of the risks inherent in the advocacy of political change).
The result is that existing words take on new meanings. In some cases new
words or phrases are minted eventually to describe concepts that have been
accepted for years. The concept of popular sovereignty is a case in point.
According to the Oxford English Dictionary, this term was not introduced
until the late nineteenth century, although it describes a theoretical
concept and human activity that had been adopted much earlier.
6. The two most frequently cited proponents of this notion are
Douglas Adair and Alpheus T. Mason. Many scholars take exception to this




view, among them George Carey. In Defense of the Constitution, 18-33,

Carey provides an excellent overview of the split personality
scholarship, as well as a response based on an analysis of the text of The
7. Both Madison (in the Gideon edition of The Federalist published
in 1818) and Hamilton (in a letter to a friend) claimed authorship of
Numbers 18-20, 49-58, 62, and 63. As far as I know, the two men were
unaware of each others claims. Hamiltons accounting was made privately,
and Madisons appeared many years after Hamiltons death. The dispute
over who wrote what continued until 1944, when Douglass Adair settled
the controversy in an article titled The Authorship of the Disputed
Federalist Papers (reprinted in Fame and the Founding Fathers).
Madisons claim to authorship was substantiated by Adair and subsequent
analyses. Of course, one might conjecture that it was the collaborative
nature of the project that brought on the dispute in the first place. Perhaps
Hamilton considered himself to be the major contributor of ideas presented
in the contested essays and, therefore, the real author. For example, the
notion of the peoples tendency to sacrifice their own liberty when
government is ineffective is a recurring theme in Hamiltons papers, and
nowhere is it more starkly drawn than in No. 8, where he adopts the
Hobbesian claim that to be more safe they, at length, become willing t o
run the risk of being less free. Madison makes a similar point in the last
part of No. 51 (but nowhere else), when he discusses how the extensive
republic militates against the need to even contemplate a Hobbesian
8. Hamilton was not present during much of the Philadelphia
convention, but his contributions to the conversation, when he was there,
suggest that he favored a much stronger central government than that
reflected in the Constitution. For example, in Madisons Notes (Kock ed.)
for June 18th Hamilton is paraphrased as saying that the general power . . .
must swallow up the state powers. Otherwise, it will be swallowed up b y
them. On the same day he proposes that one branch of the legislature and
the executive hold their places for life or at least during good behavior.
Forrest McDonald in Novus Ordo Seclorum ( 205-213) pieces together
a Madisonian Constitution based on the provisions he is known to have
supported. According to McDonald, his constitution would not have been
the partly federal version that he endorses in No. 39, but a purely
national version instead. Among other things, Madisons constitution
would have had both houses apportioned by population, the Senate
sharing treaty power with the president, a six year term for the president,
and an executive council consisting of six persons, two selected b y
northern states, two by the middle, and two by the southern states.
9. For citations to The Federalist I follow the format: Number
Author: Page. Page numbers refer to the Carey and McClellan edition of The
Federalist (Kendall Hunt Publishing, 1990).



10. For example, in 38M:91 he remarks, it is not necessary that the

former [Constitution] should be perfect; it is sufficient that the latter
[articles of confederation] is imperfect.
In 85H:451 he notes
[c]oncessions on the part of the friends of the plan, that it has not a claim
to absolute perfection, have afforded matter of no small triumph to its
enemies. Also on the same page: I never expect to see a perfect work from
imperfect man. See also 37M and 41M:209.
11. Not only were several provisions innovative (see 9H:38-9,
14M:66), but the ratification of a frame of government by the people was
considered a novel experiment ( 1H:4, 14M:64, 37M:182, 38M:187-88).
12. See 37M:182, where Publius observes that the Constitution
provides a convenient mode of rectifying [its] own errors, as future
experience may unfold them and 52M: 357, where he observes that
reform must be left to further experience.
13. This view is reflected in 41M:209 where he remarks: cool and
candid people will at once reflect, that the purest of human blessings must
have a portion of alloy in them, and the choice must always be made, if not
of the lesser evil, at least of the GREATER, not the PERFECT good . . . , and
in 65H:339 where he remarks that if mankind were to resolve to agree i n
no institution of government, until every part of it had been adjusted to the
most exact standard of perfection, society would soon become a general
scene of anarchy, and the world a desert. Also see 85H:451.
14. He only touches on the issue of slave traffic in 42M:217, where he
describes the arrangement worked out at the Convention that allows for a
ban on the importation of slaves after 1808 as a great point gained i n
favor of humanity. He does not however deal with the incongruity of
slavery and liberty. In 51M:266 Publius admits that the selection of
judges does not exactly conform to the republican form, but that the
deviation is necessary because of the special quantifications required of
judges. In 62M:320 he concedes that the Senate deviates from the
republican rule of proportionality, but observes that this modification of
the republican principle is due to a necessary concession to the small
states by the large ones if a constitution was to become a reality. On a more
general level, in 31H:152 Publius admits that in the sciences of morals
and politics men are found far less tractable [than the maxims of
geometry]. In 37M:185 he acknowledges that real constitutions sacrifice
. . . theoretical propriety to the force of extraneous considerations. And, i n
85H:451 he remarks that the compacts which are to embrace thirteen
distinct states, in a common bond of amity and union, must as necessarily
be a compromise of as many dissimilar interests and inclinations. How
can, he asks, perfection spring from such materials.
15. Take, for example, the ambiguity that surrounds the principle of
federalism. Publius argues that one of the advantages of a compound
republic is that popular control is enhanced by the ability to shift certain
powers between the national and state governments (28H:141), depending
upon which government the people of the union feel is most up to the task
or to their liking (46M:241). Publius also points out that this arrangement
of dual and competing governments creates a situation where the different



governments will control each other (51M:268), or at least monitor each

other to make sure that the one does not overstep the territory of the other.
16. David Ericson, in Shaping American Liberalism (55-6), makes
essentially the same argument about the noncontroversial nature of the
ends, although he does not relate these ends back to the Preamble.
17. The fact that Madison carefully recorded the proceedings of the
convention is evidence of his belief in the importance of this project as are
many of the comments he conveys through Publius (especially in 14M, 3739M). And, Hamilton starts out the papers with an admonition to the
people that their conduct and example with regard to ratification will
determine whether societies of men are really capable or not, of
establishing good government from reflection and choice . . . (1H:4).
18. Copies of the papers were circulated in the other states and the
early demand was sufficient to warrant their compilation into two volumes;
the first volume, containing the first thirty-six papers, appeared in late
March, 1788.
19. He uses the words future/futurity forty-one times in twentynine of the essays and the word posterity in an additional four. In each
case these words appear within the context of a prospective discussion of
the union. See Engerman et al., Federalist Concordance, 217, 411.
Chapter One: Popular Sovereignty An Overview
1. It is not uncommon for a political practice to precede an
appellation for it. See Introduction, note 4.
2. See Lutz Popular Sovereignty. He suggests that Mornay was
influenced by Heinrich Bullinger, whose work (published in 1534) was
among the earliest articulations of protestant covenant theology.
3. See Hobbes, Leviathan, 375. This passage appears in the chapter i n
which Hobbes discusses the dissolution of the commonwealth. The overall
cause, he says, stems from Imperfect Institution.
A sampling of the
reasons he cites for such a defect illustrates why he is so reluctant to move
any closer to popular sovereignty than he needs to for theoretical
consistency. Among the defects he lists are: want of absolute power,
subjugation of the sovereign to civil laws, imitation of the Greeks and
Romans, and Mixed Government.
4. In reviewing this manuscript, John Scott reminded me that Locke
deliberately avoids the use of the term sovereignty except when quoting
Filmer. See Scott, The Sovereignless State. He contends that the absence
of this term in Lockes writings is due to his rejection of the idea of
sovereignty as generally construed. Instead, Scott claims that Locke
describes a sovereignless commonwealth with several coexisting
claimants to supreme authority. Scotts argument is fascinating and
makes sense of the seeming ambiguity in Lockes theory. Still, Locke rests
ultimate political power in the people, and that seems to be the definition
of popular sovereignty to me.



5. See Locke, Second Treatise, 95. He explains that the only way
anyone divests himself of his natural liberty, and puts on the bonds of
civil society, is by agreeing with other men to join and unite into a
community for their comfortable, safe, and peaceable living one amongst
another, in a secure enjoyment of their properties, and a greater security
against any, that are not of it. Also see 123.
6. Locke repeats this argument throughout the Second Treatise. See
94, 141, 149, 155, 166. He restates it again in his concluding
paragraph, 343: when they [the people] have set limits to the duration of
their legislature, and make this supreme power in any person, or assembly,
only temporary; or else, when by the miscarriages of those in authority, i t
is forfeited; upon forfeiture, or at the determination of the time set, i t
reverts to the society, and the people have a right to act as supreme, and
continue the legislative in themselves; or erect a new form, or under the old
form place it in new hands, as they think good.
7. Locke refers to an elected legislature as a fence against rebellion
(226). But, as Publius points out, this so-called fence is not very
effective in cases, such as the British constitution favored by Locke, where
the authority of the parliament is transcendent and uncontrollable, thus
allowing for ordinary legislative acts to change some of the most
fundamental articles of the government, including (in reference to the
Septennial Acts) the period of election (53M:278).
8. See Lutz, Origins of American Constitutionalism, 25-44, 53-54 and
Shain, Myth, xviii-xix, 193-240.
9. From Lutz, Origins, 32.
10. From Innes, Creating the Commonwealth, 198.
11. Ibid., 198-99. Also see Lutz, Colonial Origins, 38-9.
12. See Hyneman, The American Founding Experience, 9-12, 22 f.n.18
and Lutz, Origins, 116, for further elaboration on the evidence of a divided
or dual sovereignty expressed in this document. Both scholars conclude,
as I do, that in the Declaration the unified version of a people seems t o
predominate. Hyneman adds an additional observation that may explain
why: it seems significant that, in several states, leaders of the movement
for independence questioned the right of anyone to adopt a constitution or
to declare colonial transformation into statehood until specifically
authorized to do so by the Congress acting for the colony-states
13. For example, Publius contends: It has not a little contributed t o
the infirmities of the existing federal system, that it never had a ratification
by the PEOPLE (22H:113). Later, he observes: A compact between
independent sovereigns, founded on ordinary acts of legislative authority,
can pretend to no higher validity than a league or treaty between parties
14. See Lutz, Popular Consent, 74.
15. It was Martin Diamonds essay titled The Federalist that first
made me think of the American republic as profoundly democratic i n
character, although I do not agree with him about the reasons for that
profundity. Diamond reads an economic instrumentalism into the theory



of The Federalist that I do not think is there. He claims that Publius also
knows that his solution to the problem of popular majorities requires that
the country be profoundly democratic, that is, that all men must be equally
free and equally encouraged to seek their immediate gain and to associate
with others in the process . . . See Diamond, As Far as Republican
Principles Will Admit, 56.
Chapter Two: Becoming A People
1. See Engerman et al, Concordance, 86. There are 18 occurrences of
the word compact appearing in 10 papers and a further 7 occurrences of the
plural form in an additional 5 papers. My analysis eliminated several of
these references because they related to unrelated usages of the word. The
six papers in which Publius refers to a compact as such include Numbers
21H:102, 22H:113, 30H:149, 39M:198, 43M:224, 44M:230.
2. Publius contemporaries were familiar with the compacting process,
undoubtedly more so than the average American in the twentieth century.
The ideas behind the compact justified the Declaration of Independence
and also formed the foundation of the new state constitutions. Moreover,
American experience with compacts and covenants extended back to the
earliest days of the colonies.
3. In 2J:9-10 Publius suggests that the origination of the compact
may have occurred sometime around 1774 when imminent danger induced
the people of America to form the Memorable Congress of 1774.
Although this is the only paper in which he discusses this topic directly,
he typically refers to union as the norm and disunion as an aberration. See,
for example, 3J:12, 5J:20, 6H:27, 7H:28, 14M:66, 15H:72.
4. Publius more full-bodied view of the modern project seems t o
coincide, to some extent, with that proposed more recently by Toulmin i n
Cosmopolis. Toulmins thesis is that modernism generally is construed
too narrowly and that its concentration on the rationalism of the
seventeenth century to the virtual exclusion of the humanism of the
previous century diminishes the ability of the concept to adequately
describe or contribute to an understanding of the human condition.
5. See also 1H:6-7.
6. The role of Providence is obviously important to this discussion. It
is mentioned no less than three times in three successive paragraphs. The
first mention appears in the paragraph prior to the one quoted in the text:
Providence has in a particular manner blessed it [Independent America]
with a variety of soils and productions, and watered it with innumerable
streams, for the delight and accommodation of its inhabitants (2J:8). The
third mention appears in the paragraph immediately following: This
country and this people seem to have been made for each other, and i t
appears as if it was the design of Providence, that an inheritance so proper
and convenient for a band of brethren, united to each other by the strongest
ties, should never be split into a number of unsocial, jealous and alien
sovereignties (2J:9).



7. This passage is reminiscent of Aristotle's distinction between a

polis and an alliance; the former requires a social bond among the people,
including friendship, while the latter is an agreement among governments
generally in time of war. See Politics, Book 3, chap 9. The characteristics
that describe the bonds also reflect Montesquieus variables, which he
uses to differentiate one society from another. See The Spirit of the Laws,
parts 3 and 4.
8. See also 4J:19, 5J:22, 7H:31.
9. Rousseau also discusses the bonds and capacities of society, not i n
relation to its formation but rather as to its readiness for a founding (of a
democratic government). He speaks of a people suited for legislation -the legislator being the equivalent to Machiavellis prince or the ancient
law-giver. Rousseau, Social Contract, 73-75.
10. In the next paragraph of this paper Publius seems to offer further
justification for this reformulation of civil society, implying that the
formalization of the original compact was faulty: PERHAPS also an
answer may be found without searching beyond the principles of the
compact itself. It has been heretofore noted among the defects of the
Confederation, that in many of the States, it had received no higher
sanction than a mere legislative ratification.
11. See also 5J:20, 24H:125, 34H:164-5.
12. In Democracy in America Tocqueville suggests that one of the
causes which contribute to the maintenance of the democratic republic i n
the United states is the peculiar and accidental situation in which
Providence has placed the Americans . . . . Americans have no neighbors and
consequently they have no great wars, or financial crises, or inroads, or
conquest, to dread; they require neither great taxes, nor large armies, nor
great generals. . . (Vol.1:288-9).
Chapter Three: A Popular Founding
1. See Edward S. Corwin, The Higher Law Background. He contends
that the attribution of supremacy to the constitution on the ground solely
of its rootage in popular will represents . . . a comparatively late outgrowth
of American constitutional theory. He argues that the supremacy
originally rested in a transcendental justice which he notes is illustrated
in the Ninth Amendment. (4-5) If Corwin is correct, Publius was ahead of
his time because his articulation of judicial
review rests on the
Constitution as the ultimate embodiment of the deliberative will of the
people (See 78H:402-3).
2. Ibid., 89. Corwin observes, correctly I think, that in the end it is the
Constitutions rootage in popular will and the doctrine of judicial review
to back up this will that preserved the status of the Constitution as higher
3. The doctrine of judicial review is discussed further in Chapter Six.
Publius argues it is necessary because of the inevitable conflicts between
ordinary law and constitutional law. In such contests Publius affirms the
superiority of the Constitution. He argues that [n]o legislative act . . .
contrary to the constitution can be valid, and he points out that it is the



job of the courts to be an intermediate body between the people and the
legislature to resolve such conflicts (78H:403). It also should be noted
that judicial review is not initiated by the courts but results from legal
action taken by a citizen.
4. This provision and its implications will be dealt with more
extensively in Chapter Five. For now it should be sufficient to recognize
the role of the amendment procedure in supporting popular control of
constitutional law.
5. Publius discusses constitutional limits in several places, among
them 14M:65, 17H:84 (limits as the division of responsibilities between
the states and the national government), 78H:402 (limits as exceptions t o
legislative authority, e.g. rights) 83H:429 (limits as delegated powers),
84H:443 (limits specifically as rights).
6. Also see 15H, especially pp.75,77-8 and 22H:113.
7. Also see 37M:185 and 85H:454 .
8. The fact is the act of founding has always been problematic i n
democratic theory. Plato, in The Republic, tells us why most theorists
ignore it: The only way of overlaying a new founding on an existing
society is to make the children orphans. Aristotle seems to leave this job
to his statesmen. Machiavelli is one of the few theorists who takes the
founding seriously. The Prince is really a how to guide for political
foundings, while The Discourses is about how to preserve a nation once i t
is founded. Hobbes and Locke address the legitimacy of the founding, but
they speak in abstract rather than in concrete terms. Even Rousseau, i n
Social Contract (67-70), does not advocate a popular founding. With all
his talk of democracy and equality, it seems that the actual founding i s
reserved for the legislator, who seems to be self-appointed and acts alone.
9. A brief note about Gary Rosens new book(1999)
may be
appropriate here. Although Rosens project is different from mine, our
paths cross at certain points. This is one of them. Rosens reading of The
Federalist is directed at the task of reconciling the seeming contradictions
in Madisons points of view over time, while my concern is with the theory
of the fictional character Publius. With regard to the founding, Rosen
claims that Madison emulates the Greek model; mine is that he basically
rejects it, by altering the key characteristics and, more importantly, b y
bringing it into the political process. In a sense we are both right, but I am
more right. While Madison (Publius) does indeed value the indispensable
role of elites in the process of drawing up a constitution, it is the
ratification procedure that is significant in the American case. The only way
he can justify the role of the Convention is to point out that their draft was
only recommendary. Unlike the Greek foundings that represented extrapolitical milestones, the American founding is portrayed as a legitimate
political event. It is the involvement of the people on multiple levels i n
the selection of the convention, however indirectly, then in the ratification
process that supports this claim to legitimacy. Because the American
constitution is submitted for approval by and not given to the people, its



success does not depend on a voluntary renunciation [by that elite

assembly], first of [their] country, then of [their] life (38M:188) .
10. See 12H:56, 22H:108, 39M:194, 55M:288.
11. See 2J:9, 49M:260.
12. See 46M:244 and 57M:297 respectively.
13. Publius advances a similar view of human nature in Number
76H:393. In fact the wording is remarkably similar. However, the peoples
fitness for choosing is not part of this later discussion but is only implied.
To avoid unnecessary repetition I do not quote the passage here; however,
it is quoted in full in Chapter Seven.
14. His strongest articulations of this point appear in Numbers 22H,
37M, 39M, 49M, and 84H.
15. Elsewhere Publius reiterates this point: It has been shown in the
course of these papers, that the existing Confederation is founded o n
principles which are fallacious; that we must consequently change this first
foundation . . . (37M:182). And, by the time Publius gets to paper Number
49M, popular consent is taken as a given. The following quote precedes a
critique of Jeffersons plan for the engagement of the people i n
constitutional conflicts among the branches of government: As the people
are the only legitimate fountain of power, and it is from them that the
constitutional charter, under which the several branches of government
hold their power, is derived . . . (49M: 259). Also see 43M:228.
16. Numbers 1H, 14M, 15H, 22H, 49M, 33H, 37M, 39M, 43M, 45M,
53M, 63M, 78H, 84H, and 85H
17. Numbers 38M, 40M, 45M, 46M, 63M, 67H.
18. Elsewhere in the papers, it seems clear that Publius is referring t o
the whole union when he refers to union or a united people. See i n
particular 2J, 14M, 15H, and 22H.
19. Publius gives us ample reason to believe that is the case. See, for
example: 15H:74, 16H:82, 17H;84, 21H:102, 32H:158, 33:162, 34H:167,
39M:196, 40M:202-3, 45M:235-6, and 46M:240.
20. Also see 31H:152. Here Publius offers a similar, but less
protracted, view of the state of political science.
21. As George Carey points out, it depends on which four: The
Federalists . . . knew that insuring a workable and effective government
required more than merely securing the ratification of nine States as
provided in Article VII of the proposed Constitution. For economic,
political, and geographical reasons, a good deal depended on which
particular States ratified. Even before the Constitution was formally
submitted to the States for ratification, the Federalists realized that the
Antifederalists were particularly strong in two States, New York and
Virginia. They also realized that without ratification by both of these
states, an effective union under the constitution would be extremely
difficult, if not impossible. Virginia was at that time by far the wealthiest
and most populous state . . . New York . . . was crucial because of its
geographically strategic position. Without New Yorks ratification, the



United States would have been divided into two parts. Carey and
McClellan eds., The Federalist, xi.
Why are nine states required for ratification rather than eight, ten or
twelve? Perhaps this is spillover from the Articles, which required the
agreement of nine states for enactments to become law.
22. According to the Kessler edition of The Federalist Papers, the
previous example refers to Rhode Islands refusal to send delegates to the
Constitutional Convention in Philadelphia.
23. Rhode Island was not expected to sign on since it did not even
send delegates to the convention.
24. See Calhoun, A Discourse on the Constitution and Government,
in Union and Liberty. He specifically mentions the ratification provision
at the beginning of his inquiry into whether the act of ratification, of
itself, or the constitution, by some one, or all of its provisions, did, or did
not, divest the States of their character of separate, independent, and
sovereign communities, and merge them all in one great community or
nation, called the American people (87-88).
Chapter Four: A Continuing Compact: The Rationale
1. Progressive here is defined in the ordinary sense as marked b y
progress, reform, or continuing improvement. It does not allude to the
late nineteenth/early twentieth century political movement.
2. For example, the census provision and apportionment criteria
established in Article I, Section 2, the provision to add new states in Article
IV, Section 3, and the provision in the same section that gives congress the
power to regulate territories that are not yet states.
3. Engeman et al., The Federalist Concordance, 217, 411.
4. The deliberate decision-making that he describes in 1H:4, 2J:10,
and 14M:66 is far different in its operation and result than that of
impassioned majorities (9H:38, 10M:43, and 14:63).
5. Ibid., 479. There are 58 occurrence of safety in The Federalist. I
have eliminated five because they represented different usages of the word.
6. Ibid., 236, 239. The pairing occurs in Numbers 2J, 15H, 22H, 40M,
43M, and 56M; both items are mentioned in 1H, 20M, 30H, 38M, 41M,
45M, 59M, and 84H.
7. Ibid. Numbers 5J, 9H, 14M, 24H, 31H, 36H, 37M, 38M, 46M, 57M,
62M, 71H, and 78H.
8. See Lutz, Colonial Origins, 273.
9. See Locke, Second Treatise. He asserts that when a government
exerts absolute, arbitrary power over the people they are no better than they
were in the state of nature (13) and he who attempts to get another man
into his absolute power . . . does thereby put himself into a state of war with
him (17). Dissolution of the government does not require that the
majority of the people are adversely affected, only that the government
demonstrates a willingness to act arbitrarily (209). Also see 168 and



10. The other category includes happiness and safety in union,

present and future happiness, happiness of millions, of eight
millions, happiness of their country, happiness of society.
11. He also points out there is less to fear from this government
because it is part of a federal system in which its powers are limited and its
actions are monitored by the state governments as well as by the people.
See 14M:55, 17H:84-5, 28H:141, and 46M.
12. In 14M:65 Publius outlines the need for national capital projects
such as the construction of roads and canals.
13. In 25H:129 Publius discusses the necessity for military expertise
to provide for the national defense and in 35H the knowledge of the
science of finance that is required to competently administer the
nations economic business. In 15H:74 he addresses the importance of
national reputation as well.
14. See 1H:4 and 11H:53. Also see prior discussions in Chapters
Two and Three on this topic.
15. Locke argues that the chief end of government is the
preservation of their property (124). Governmental transgressions with
respect to property result in the forfeiture of power (222).
16. Also see 22H:113, 6H:27, and 62M:322.
17. At the time, proposals were being floated for multiple
confederacies. See Publius comments in 1H:6-7 and 2J:8. Whether these
proposals were ever seriously considered, though, is open to question.
18. Publius attempts to soften the blow, however, by suggesting that
the great principles of the Constitution proposed by the Convention, may
be considered less as absolutely new, than as the expansion of principles
which are found in the articles of Confederation (40M: 203). Also see
40M: 201 and 45M:238.
19. Publius refers to the peoples right to alter or abolish their
government three times in The Federalist, in the passage quoted above and
in two others, 39M:198 and 78H:405. The significance, if any, of this
phrase is that it indicates a preference for the former (alteration) over the
latter as a means of rectifying a faulty government. The fact that the
Articles contained an amendment provision demonstrates that the
politicians at the time were searching for a way to operationalize this
20. This is illustrated in one of Publius most quoted observations:
If men were angels, no government would be necessary. If angels were t o
govern men, neither external nor internal controls on government would be
necessary (51M:267). He expresses the same idea in an earlier paper,
although not so eloquently or parsimoniously: Why has government been
instituted at all? Because the passions of men will no conform to the
dictates of reason and justice without constraint. Has it been found that
bodies of men act with more rectitude or greater disinterestedness than
individuals? The contrary of this has been inferred by all accurate
observers of the conduct of mankind . . . (15H:76) Also: Have we not
already seen enough of the fallacy and extravagance of those idle theories
which have amused us with promises of an exemption from the



imperfections, weaknesses and evils incident to society in every shape. . .

? (6H:27).
21. See 51M:267. Also in 37M, Publius speaks to the difficulties
involved in constructing human instruments of government because of
human imperfection. In the final paper, Publius allows that he never
expect[s] to see a perfect work from imperfect man (85H:451).
22. Isnt it the goal of the Constitution, after all, to perfect the union?
This is his main topic in the first fourteen papers.
23. In the first fourteen papers, Publius speaks specifically to the
usefulness of the union for achieving specific goals, namely, peace, justice,
stability, and prosperity all of which contribute to liberty. In the next set
of papers (15-22), he outlines the shortcomings of the Confederation for
achieving these ends.
24. See 8H:35, where he lays out the differences between a modern
state and an ancient one: The industrious habits of the people of the
present day, absorbed in the pursuits of gain, and devoted to the
improvements of agriculture and commerce are incompatible with the
condition of a nation of soldiers, which was the true condition of the
people of those [ancient] republics.
25. In Chapter Three I cited several examples of Publius faith in the
capacity of the people, especially when challenged with an important task
such as the one before them, deciding on the ratification of the
Constitution. See 1H:4, 9H:38M, and 14M:66-7, among others. But
Publius also sees opportunities for excellence in political leadership. For
example, he remarks: The aim of every political Constitution is or ought
to be first to obtain for rulers men who possess most wisdom to discern,
and most virtue to pursue the common good of the society . . . (57M:295).
Later in the paper, he describes the relationship between the representative
and his constituents as one built on duty, gratitude, interest, ambition
itself. Granted, the last two items are not so high-minded, but the first two
are. Also see 55M:289 and 76H:393.
26. See 10M and 57M.
27. See 22H:113, 37M:182, and 43M:228.
28. Also see 10M:46.
29. See Dahl, Preface to Democratic Theory. He contends that [t]he
normal American system has evolved, and by evolving it has survived. It
has evolved and survived from aristocracy to mass democracy(150). Dahl
claims that Madison wished to erect a political system that would
guarantee the liberties of CERTAIN minorities whose advantages of status,
power, and wealth would, he thought, probably not be tolerated
indefinitely by a constitutionally untrammeled majority (31, emphasis
mine). He further observes: If we carry one aspect of Madisons argument
to its logical limit, then we can easily place him in the camp of GREAT
ANTIDEMOCRATIC THEORISTS (32, emphasis mine). But Dahl then
backs off, saying that since Madison did not push the limits neither should
he. Nevertheless, he concludes: Madison, it seems to me, goes about as far



as it is possible to go while still remaining in the rubric of democracy

(32). So, it seems Dahl thinks Madison a democrat, but barely. Dahl i s
neither the only nor the first political scientist to espouse some version of
this point of view. As I indicated earlier, many political scientists believe
that the Constitution, as framed, falls short of some democratic ideal. This
perspective was hatched in the early twentieth century by James Allen
Smith in The Spirit of American Government (New York: The Macmillan
Co., 1907), by Charles Beard in An Economic Interpretation of the
Constitution of the United States of America (New York:The Macmillan
Co., 1913), and by Bernan Parrington in Main Currents in American
Thought (New York: Harcourt, Brace, 1927).
30. See, for example, 1H:5, It will be forgotten . . . that the noble
enthusiasm of liberty is too apt to be infected with a spirit of narrow and
illiberal distrust . . . and that a dangerous ambition more often lurks
behind the specious mask of a zeal for the rights of the people, than under
the forbidding appearance of zeal for the firmness and efficiency of
government. History will teach us that the former has been found a much
more certain road to the introduction of despotism, than the latter, and that
of those men who have overturned the liberties of republics the greatest
number have begun their career, by paying an obsequious court to the
people, commencing Demagogues and ending Tyrants. Similar concerns
are voiced in 9H, 10M and elsewhere.
31. See Publius comments in 9H:38 and 10M:43.
32 . Also see 10M:47.
33. But Publius never really explains why a larger body of people are
more likely to focus on competence or why they are less easily fooled b y
sinister designs.
34. And, which produces a much broader electorate, as we will find i n
Chapter Six.
35. Martin Diamond (1992) argues that Madisonian democracy rests
on interest. He contends that Madisons whole scheme essentially comes
down to this. The struggle of classes is to be replaced by a struggle of
interests (33). He repeats this assertion in another essay, saying: In such
a republic the hitherto fatal class struggle is replaced by the safe, even
salutary struggle among different kinds of propertied interests (56).
Interestingly, Diamonds analysis suggests that Madison advances a much
more contemporary version of pluralism than is generally attributed t o
him. In fact, the Diamond version of Madisonian pluralism is more like
Dahls empirical model than Dahls Madisonian model.
36. Recall that Publius makes the point that the wholly popular
government proposed by the Constitution is superior to the European
regimes because it is unmixed and extensive (14M:64).
37. For example, in 39M he notes that while in several of the States
however, no constitutional provision is made for the impeachment of the
Chief Magistrate, . . . [t]he President of the United States is impeachable at
any time during his continuance in office (195).
38. See Richard Fennos Homestyle. He comes to many of the same
conclusions as Publius in his empirical study of the relationship between



representatives and their constituents. Incidentally, Fennos work seems t o

have revolutionized, or at least reoriented, the way contemporary political
scientists look at Congress. Curiously, though, while Fenno pays lip
service to The Federalist, he never refers to any of the arguments in 57M
which lay out the basis for his own research.
39. See Pitkin, Representation, 196. She makes an interesting
distinction between Madison and Burke on this point. She argues that:
Like Burke, Madison thinks that even ordinary men can be expected to see
the light given enough time and information.
But Burke considers
representation as a devise for arriving at the right solution in Parliament
and enacting it, with hopes that the people will eventually accept the
action. Madison, by contrast, sees representation as a way of stalemating
action in the legislature, and thus in society, until wisdom prevails among
the people.
40. See 51M:266 and 78H:401.
41. Also see 84H:443, where Publius notes that under the
Constitution the national government may regulate the general political
interests of the nation, not every species of personal and private
42. Hamiltons attitude seems to poke through Publius veil i n
another part of this paper where he explains why the national government
would be unlikely to usurp state powers by trivializing the powers of the
states. He remarks that the mere domestic police of a State hold out
slender allurements to ambition for national politicians (17H:84) .
43. Presumably because an attempt to exercise those powers would be
as troublesome as it would be nugatory ( 17H:84).
44. Publius notes that the lack of such a guarantee is a shortcoming of
the Articles (21H:103), and explains the reasons for its inclusion i n
Chapter Five: A Role for Future Generations
1. See 9H:38-9 for a discussion of the science of politics and the
improvements it has made since ancient times.
2. See 9H:38-9, 10M:43, 14M:66, 37M:181, and 78H:401.
3. See, for example, 31H:152-3: But in the sciences of morals and
politics men are far less tractable [than in the maxims of geometry, for
instance] . . . Though it cannot be pretended that the principles of moral
and political knowledge have in general the same degree of certainty with
those of the mathematics. Much of 37M is a theoretical discussion of
why the sciences of morals and politics are inexact.
4. See Engeman et al., Federalist Concordance, 185-6.
5. Also see 38M:188.
6. The emphasis Publius places on experience clarifies his conception
of science. Experience for him generally provides a negative form of truth;
that is, it suggests what not to do rather than what to do. This leads to a
cycle of experiment/ experience/ correction which is continuous as well



as circular, perhaps spiraling its way to the truth. Science, then, for Publius
is more of a process than a set of laws. The novelty of some of the
Constitutional provisions provides confirmation of this view. These
innovations, suggested by past failures, have yet to be tested.
7. Lutz (Colonial Origins, 271) observes that William Penn may have
been the first European to propose and use an amendment procedure.
8. Recall from the discussion in Chapter Three Publius assertion that
the Articles were a mere alliance because they were formed by consent of
sovereign states, not by consent of the people themselves. He articulates
this position in 15H:75, 22H:113, 42M:219, 43M:228, among others.
However, there may have been another, more practical, reason for not
attempting to ratify the Articles. Publius tells us that the amendment
provision in the Articles was too stringent to be of any practical value. He
claims that its requirement for unanimity subjects the fate of 12 States t o
the perverseness or corruption of a thirteenth (40M:203). Also see
43M:227. The fact that the thirteenth state (Rhode Island) did not even
send delegates to the Convention (see 40M:205) makes it doubtful that
any amendments to the Articles proposed by the Convention would have
been adopted.
9. Publius makes the distinction between limits on the types of
powers delegated to the national government and limits on the scope of the
delegated powers. At one point he goes so far as to say that the powers that
relate to the common defense ought to exist without limitation (23:119).
The idea that the means ought to be proportioned to the end is a recurring
theme in The Federalist, particularly in the series of papers between
Numbers 23 and 36, where he discusses the powers granted the government
under the Constitution. The issue comes up again later in a discussion of
the necessary and proper clause, in Article I, Section 8, of the proposed
constitution. Again Publius asserts: No axiom is more clearly established
in law, or in reason, than that wherever the end is required, the means are
authorized; wherever a general power to do a thing is given, every
particular power necessary for doing it, is included (44M:232) .
10. The competency factor, relating to the goodness or badness of the
governments administration, is also suggested in 27H:136.
11. Present day scholars, having the benefit of hindsight, confirm that
the dualism inherent in federalism does indeed provide important
flexibility in the allocation of political power. Daniel Elazar observes that
the federalist principles are not a single way of doing things, but rather
two orientations. Federalism has been interpreted as limiting government
action and as providing the basis for government intervention to require
private individuals to behave in a morally and correct way. Thus federalism
as a political way provided a basis for the secession of the southern states
on one hand and, on the other, for their reintegration into the union on an
equal footing with their northern sisters (from Ostrom, Compound
Republic, xxii). Grant McConnell, in Private Power, views federalism as
engendering two oppositions initially a centralizing force, which over
time becomes a decentralizing one. Osborne and Gaebler (Reinventing
Government, 276-77) maintain that the competence of the respective



governments has had much to do with the tendencies toward centralization

and decentralization at various points in American history. They argue that
centralization occurred during the industrial era because the national
government had better resources and during the sixties because the states
were denying constitutionally guaranteed rights to some of their citizens.
They further argue that the trend toward decentralization in the late
twentieth century has occurred because state governments are not only
more effective but also more progressive than the national one.
12. See Numbers 23-36H and 44M.
13 . Publius repeatedly speaks of the important but limited powers of
the national government. See, for example, 14M, 17H, 78H, and 83H.
14. See his comments on precedent in 78H:406 and his plan for
district courts in 81H:420.
15. See 81H:416, 82H:424, and 82H:426.
16. See 80H:414 and 83H:435-36.
17. See 81H:421-42.
18. See 83H:431-34.
19. We shall investigate the specific issues raised and his response i n
Chapter Six.
Chapter Six: In Support of the Continuing Compact
1 . Also see 21H:103.
2. See Lutz, Protection of Political Participation, 1-29. Also see
57M:298 for Publius comments on restrictions to suffrage in England.
3 . Also see 57M:295.
4. However, Publius is far from suggesting that just anyone can serve
in national office or that public officials could be selected by lottery. Note
the importance of merit in the passage from 52M quoted above. Merit i s
also emphasized in other papers, including: 35H, 36H, 57M, and 68H.
5. Although Publius does not specifically make this point, a careful
reading of the qualification provisions indicates that the constitutionally
defined criteria for holding office are even less rigorous than those that
define suffrage. For example, women and blacks are not excluded from
holding office. In fact, no alteration to the Constitution was ever required
to enable either group to attain elective office.
6. He repeats this idea in 55M:289: The improbability of such a
mercenary and perfidious combination of the several members of
government standing on as different foundations as republican principle
will admit . . .
7. Also see 28H:141.
8. I have taken the liberty of altering the order of Publius list,
inverting numbers 3 and 4 to keep together those issues relating directly t o
9. In 26H:131 Publius deals specifically with the issue of public
trust, suggesting that if the principles voiced by the critics become the



popular creed, they would utterly unfit the people of this country for any
species of government whatever.
10. Publius does not acknowledge that disproportionate population
increases might occur in the small states, which would dampen the
enthusiasm of large states for augmentation.
11. The phrase appears in other papers, including: 26H, 35H, 60H,
63M, 78H, 84H (Engeman et al. Concordance, 56-7).
12. Publius comments on the limited right to suffrage in Britain i n
13. Since the ratification of the seventeenth amendment in 1913,
Senators have been elected directly by the people in each state.
14. As Publius explains this provision it seems to be the American
version of Rousseaus deliberating alone. In Rousseaus scheme, when
the people meet in assembly, they are to consider their decision in private.
He suggests that discussions with others create factions, which in turn
place private interest ahead of public good. Rousseau (On the Social
Contract, I.3).
15. Also see 78H:402.
16. Also see 81H:418.
Chapter Seven: Virtue in the American Republic
1. Also see 15H:76 where Publius asks, Why has government been
instituted at all? Because the passions of men will not conform to the
dictates of reason and justice, without constraint . . . .
2. Publius uses the term democracy narrowly to describe a system i n
which the people participate directly in their government.
3. See Websters New World Dictionary of the American Language.
1964. College Edition. The World Publishing Co: Cleveland.
4. For example, Publius refers to enlightened statesmen in 12H and
36H, the most enlightened legislators in 37M, and the most enlightened
and respectable in 64J. In 3J:13 he refers to the best men in the
country; in 4J, the ablest men. In 57M Publius indicates that rulers
ought to be men who possess most wisdom to discern, and most virtue t o
pursue the common good; in 68H he speaks of characters preeminent for
ability and virtue . . . These citations do not include a complete list of
such references, but they should be sufficient to convey Publius point of
view on the subject.
5. This formula for leadership is expressed either explicitly or
implicitly throughout The Federalist. See 2J:10, 10M:48, 14M:66,
36H:174, and 68H:354.
6. For example, see 1H:5-6 and 10M:47.
7. Publius claims that at that time, turnover in the state legislatures
was around fifty percent (62M:322).
8. This passage appears in a paper where Publius defends the longer
term of Senators, which he contends is necessary to counteract the
likelihood of high turnover in the House.
9. Publius discusses the practical value of a limited constitution i n
several papers. He observes that the limited responsibilities of the national



government are so weighty that public officials would have little time or
little incentive to extend these powers (14M:65, 17H:84, 53M:280,
78H:402, 83H:429, and 84H:443). The special expertise that is required i s
reflected in Publius reference to two of these powers (war and finance) as
sciences (29H:143).
10. See 63M:325 and 71H:370.
11. See discussion in Chapters Two and Three.
12. See Chapter Three and also numbers: 12H:56, 22H:108, 39M:194,
2J:9, 49M:260, and 57M:297.
13. See Chapter Four.
14. See especially 10M:47-8 and 35H:169.
15. The popular role has expanded in the selection of national
officials, first, with the passage of the Seventeenth Amendment, which
provided for the popular election of Senators, and, more recently, with the
democratization of the presidential candidate selection process.
16. See 8H:35 and 44M:230.
17. Adam Smiths Wealth of Nations (1776) is most generally
associated with the idea that selfish pursuits produce common benefits.
However, Locke advances a normative formulation of this view much earlier
in his Second Treatise (1690) as he conditions title to property on the
concept of added value.
18. Publius continues: By multiplying the means of gratification, b y
promoting the introduction and circulation of the precious metals, those
darling objects of human avarice and enterprise, it serves to vivify and
invigorate the channels of industry, and to make them flow with greater
activity and copiousness (12H:55).
1. In the 1930s, when the Court started to use substantive due process
reasoning to invalidate acts of Congress, and in the process much of
Roosevelts New Deal, it did elicit a reaction. Roosevelt proposed what has
become known as his court-packing plan, which would have allowed him
to appoint a new justice for each existing justice over 70 years old, up t o
fifteen justices in total. This threat is what supposedly caused two justices
to switch sides on subsequent cases, thus changing the balance of the
Court. Roosevelts plan was never voted on by Congress. This battle also
tarnished the doctrine of substantive due process, which has not been used
overtly by the Court since.
2. Although a due process clause also exists in the Fifth Amendment
to the Constitution, an earlier decision in Barron v. Mayor and the City
Council prevented the Court from applying any of the first eight
amendments to the states. The important words in the Fourteenth
Amendment are therefore: nor shall any state deprive . . .
3. Privacy as a reproductive right was actually established in an
earlier case (Griswold v. Connecticut) and was then asserted in Roe. Like
Roe, the Griswold decision generated much legal controversy so much



that an entire edition of the Michigan Law Review (64:219-234, 1965) was
dedicated to the case. The substantive due process standard, while lurking
in the background, was not really applied in this case, however. Indeed, the
criticism of Griswold, among even liberal jurists, was that the Court did not
provide any clear Constitutional justification for the assertion of this
right. As a result, some jurists have recommended a cautious return to some
form of substantive due process method because it forces the courts t o
clearly articulate the rights involved and the reasons those rights outweigh
other interests of the state.
4 . The right to privacy, as it applies to abortion, is not considered
textually grounded because this right is not specifically mentioned in any
part or amendment of the Constitution. In contrast, violations of privacy
specifically related to the search of a person or the seizure of his
belongings can be tied directly to the Fourth Amendment.
constitutional law, direct textual grounding is not necessarily a
requirement for constitutional support of a right, but in such cases the
Court generally attempts to explain how the right is implied from certain
provisions in the Constitution, or how it is so rooted in tradition and law
that it justifies constitutional protection.
5. Lochner v. New York (1905) is the case most associated with the
doctrine of substantive due process. This case is famous for both its
articulation of the standard and for Justice Holmes dissent. Here the Court
invalidates a New York statute establishing maximum hours of work for
bakery employees on the grounds that the state does not prove a
compelling reason for depriving employees and employers of the liberty
(as understood by the Court in the due process clause of the Fourteenth
Amendment) to contract.
6. See David Barnum, The Supreme Court and Public Opinion, 652666.
7. The exception was in 1994, when the re-election rate was 89%. From
Norman J. Ornstein, Thomas E. Mann and Michael J Malbin, Vital
Statistics on Congress, 1995-1996 (Washington, DC: CQ Press, 1996) i n
Edwards et al, Government, 298.
8. Since 1960 the following presidents received less than 50% of the
popular vote: Kennedy (49.7%), Nixon in 1968 (43.4%), Clinton in 1992
(43%), Clinton in 1996 (49.2%), Bush in 2000 (47.9%). Edwards et. al.,
Government, 585, and
9. Nelson W. Polsby was one of the first political scientists to suggest
this possibility in his fascinating examination of the party reform
movement and its consequences. See Consequences of Party Reform,
Oxford: Oxford University Press, 1983.
10. While there has been no research establishing a causal link, the
numbers indicate that a downturn in voting rates occurred in the early
1970s, at the same time that democratic reforms were being implemented.
McDonald and Popkin (The Myth, 697) show that when turnout i s
adjusted to account for the overstatement of registered voters, the turnout
rate drops in 1972 to around 55% for presidential elections and holds at
that level for the remainder of the twentieth century.



11. This is precisely David Mayhews point in Divided We Govern.

His research shows that in the forty-five year period following WWII, the
productivity of Congress was relatively unaffected by whether the same or
different parties held the presidency and Congress. More importantly, he
found that most of the important legislation during that period tended t o
have broad support (67%+) in Congress (119-122). This sounds like the
deliberative process that Publius envisioned.
12. This term applies not only to the direct election of Senators but
also to the transition to primaries for candidate selection. In addition, the
government itself has democratized its operations during this period. For
example, the House has changed some of its rules to reflect the greater
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as dynamic element, 97
Bill of Rights, 162
Civil War, 163
difficulty of, 71, 95-97
electoral college, 169
First, 172
Fourteenth, 163, 164, 165,
history of, 92
in Articles of Confederation,
proposing, 94, 166
purpose of, 62, 90, 91, 93, 95,
98, 108, 135, 161, 162
reflects federal system, 94-95
role of states, 93, 94, 95
role of the people, 43, 61, 9294, 99, 110
Seventeenth, 168
to state constitutions, 170
Aristotle, 2, 54, 56, 78, 91, 153,
155, 159
Articles of Confederation, 11,
23, 24, 35, 44, 50, 58, 67, 69,
70, 71, 72, 91, 92, 96, 111
Beard, Charles A., 1, 188 n. 29
Carey George, 176 n. 6, 177
n. 9, 184 n. 21
Checks and balances, 5, 6, 118,
119, 140, 141, 142, 171
Chubb, John E. and Terry Moe,
117, 175 n. 2

Civil society
American, 50, 51, 58, 62, 65
bonds of, 12, 34-37, 39, 59
boundaries, 30, 36, 37-38, 40,
59, 158
choices, 13, 38, 40
formation, 20, 22, 35, 66
goals, 35, 86
survival, 30
American, 23, 29, 34, 35, 39,
41, 43, 44, 58
continuing, 61-62, 92, 161
dynamic, 13, 62, 71, 86
first stage, 13, 30, 31, 32, 36,
37, 40, 41, 56, 57, 151, 158
goals of, 73
ill-considered, 36
Mayflower, 2, 21
popular founding, 50
principles of, 12, 29
progressive, 97
reasons for, 35
second stage, 41-59, 73
secular basis of popular
sovereignty, 17-20, 27
Compact theory, 18, 22, 29, 30,
37, 41, 42, 56, 62, 145, 151,
157, 161
Concurrent powers, 98, 99-100,
Continental, 23, 25


of New Hampshire, 25
under Articles of
Confederation, 96
Congress of United States, 121
as check on president, 130
checks on, 83
committees of, 171
critique of, 171
limits on, 93, 123
powers of, 98, 133
role of, 172
role in structuring lower
courts, 105-108, 137
British, 42, 47, 50
Massachusetts, 26, 65
New Hampshire, 25
Pennsylvania, 2527, 65, 92
South Carolina, 25
state, 4, 22, 24, 38, 44, 65, 78,
80, 106, 111, 113, 114,
120, 124, 133, 160, 175
Virginia, 65
Constitution of United States, 1,
as a compact, 12, 29
as experiment, 91
as higher law, 41, 43-44, 48
as new compact, 58
as remedy for faction, 76
body, 5, 6
continuing compact, 86, 108
criticism of, 80
design, 170
electoral college, 167
extensive republic, 37
federalism in, 85
flexibilities in, 162
framers, 2, 12, 74, 89, 90
improvable, 73, 86, 92
Preamble, 3, 4, 5, 30, 38
principles in, 6, 160
product of science, 90
ratification, 4, 7, 8, 9, 10, 11,
13, 29, 44, 45, 47, 50, 51,
52, 53, 55, 56, 62, 63, 71,
81, 161

reflects deliberate will of
people, 83
republicanism in, 77, 109
role of the people, 166, 174
textual guidance from, 165
theory, 7
todays, 162
virtue in, 143, 144, 147, 151,
154, 155
work in progress, 62, 89
Constitutional Convention, 7,
15, 27, 30, 44, 46, 54, 55, 56,
57, 58, 73, 85, 91, 92, 95, 97,
106, 112, 114, 126, 129, 133
for proposing amendments,
role of the people, 26
special, 98
state, 51, 56, 90
Virginia, 25
Court of the United States, 84,
93, 99, 106, 107, 108, 137,
140, 162, 164, 165, 172, 174
Also see Judicial branch
Cox, Archibald, 164
Dahl, Robert, 1, 117, 188 n. 29,
189 n. 35
Declaration of Independence, 22,
23, 24, 27, 62, 64, 70, 133
Deliberate, 46, 63, 81, 84
Deliberate Sense of the
Community, 8084, 173
Democracy, 2, 3, 10, 19, 39, 75,
110, 158, 159, 161, 170, 174
Diamond, Martin, 2, 180 n. 15,
189 n. 35
Epstein, David F., 2
compared to national, 52, 53,
79, 92, 94
compound republic, 126
legislation, 123
nature of founding, 55, 56, 63
representatives, 125
treasury, 101
Federal compromise, 99

Federal constitution, 3, 53, 70,
113, 161
Federal government, 100, 115
Federal judiciary, 106, 132, 133,
Federal principle, 56, 141
Federal republic, 2
Federal structure, 143
Federal system, 77, 85, 94, 99,
118, 119, 120, 157, 159
Federalism, 6, 11, 56, 112
Federalist, The
no. 1H, 45, 59, 63, 75, 81
no. 2J, 31, 32, 69
no. 6H, 35, 75, 139
no. 8H, 36, 39, 64, 154
no. 9H, 140
no. 10M, 64, 67, 76, 79, 140,
141, 145, 147
no. 11H, 33
no. 12H, 154
no. 14M, 32, 46, 58, 64, 74,
78, 85, 91
no. 15H, 67, 68
no. 22H, 50
no. 23H, 104, 105
no. 25H, 96
no. 26H, 10
no. 27H, 148
no. 28H, 36, 64, 99
no. 30H, 154
no. 31H, 99
no. 32H, 86, 99
no. 34H, 103, 104
no. 35H, 146149
no. 36H, 79, 102, 104
no. 37M, 46, 54, 89, 91
no. 38M, 46, 47, 97
no. 39M, 50, 55, 73, 78, 80,
94, 110, 111, 112, 126, 152
no. 40M, 55, 57, 69, 70, 91,
no. 41M, 34, 35, 39, 105
no. 42M, 97

no. 43M, 35, 44, 52, 55, 58,
65, 71, 90, 95, 97, 102, 113,
no. 46M, 100
no. 49M, 96
no. 51M, 36, 75, 116, 117,
118, 119, 131, 132, 140,
141, 142, 174
no. 52M, 114, 115, 120
no. 53M, 42, 47, 120, 121,
no. 55M, 48, 49, 122, 123,
140, 143
no. 56M, 123, 124, 149
no. 57M, 82, 114, 124, 125,
144, 147, 148
no. 58M, 103, 124
no. 60M, 64
no. 62M, 95, 115, 126, 148,
no. 63M, 81, 82, 83, 126, 127,
no. 67H, 127, 129
no. 68H, 127, 128, 129, 148
no. 69H, 129
no. 71H, 81, 130
no. 73H, 83
no. 76H, 131, 143, 144, 148
no. 78H, 71, 84, 92, 93, 106,
132, 134, 135, 136
no. 79H, 132
no. 80H, 107
no. 81H, 134, 135, 136
no. 82H, 89, 106, 107
no. 83H, 9, 97, 106, 133
no. 84H, 10, 51, 66, 98
no. 85H, 48, 49, 90, 92, 94
Fenno, Richard Jr., 167, 189 n.
Fiorina, Morris, 167
Freund, Paul A., 164
Ginsberg, Ruth Bader, 164
Hamilton, Alexander, 7, 8, 9. 176
n. 7, n. 8, 178 n. 17, 190 n. 42

Hobbes, Thomas, 2, 16, 17, 18,
21, 34, 35, 37, 39, 41, 59, 73,
139, 158
House of Representatives, 48,
81, 82, 102, 103, 110, 111,
113, 114, 115, 119-125, 132,
146, 147, 148, 149, 150, 152,
167, 168, 169
Human nature, 10, 34, 39, 48, 62,
71-73, 86, 123, 141, 144, 155
Jay, John, 7, 9
Jefferson, Thomas, 65, 96
Judicial branch, 80, 81, 84, 105,
106, 107, 116, 162, 163, 165
Laswell, H., 1
Locke, John, 2, 12, 16, 19, 21,
22, 30, 34, 35, 36, 37, 39, 43,
50, 51, 59, 63, 64, 65, 66, 139
Lowi, Theodore J., 2
Lutz, Donald S., 2, 16, 118, 179
n. 8, n. 9, 180 n. 11, n. 12,
n. 14, 185 n. 8, 190 n. 7, 192
n. 2
Macedo, Stephen, 3
Machiavelli, 72, 78
Madison, James, 5, 7, 8, 9, 176 n.
7, n. 8, 178 n. 17, 183 n. 9,
188 n. 29, 189 n. 35, n. 39
Montesquieu, 2, 78, 139
Pitkin, Hanna Fenichel, 3, 189 n.
Plato, 10, 145
Popular sovereignty, 1, 3, 4, 6,
15-27, 134
constitutional commitment
to, 109
definition of, 11, 15
in a federal system, 85-86,
in Mayflower Compact, 2
Publius theory of, 41, 63,
157, 160, 174
reinforcement of, 92
strengthening of, 78
President, 81, 83, 110, 111, 118,
123, 127-131, 144, 148, 150,
167, 168, 169, 170

Articles of Confederation, 112
constitutional, 111, 165
founding, 1, 2, 25, 58, 160
fundamental, 8, 9, 10, 38, 151,
Great Britain, 47
in the Preamble, 6
inherent in the compact, 29,
operational, 5-6
political, 118, 122, 155
republican, 73-86
shared, 11, 31
American, 1, 10, 47, 50, 115,
ancient, 153
as mixed regime, 2, 78
British, 78
compound, 100, 118, 126,
Czechoslovakia, 158
distinguished from
democracy, 74
extensive, 10, 37, 46, 78, 141
Holland, 78
large, 32, 159
small, 10
wholly popular, 151, 7780,109-116
Republican principles, 62, 7386, 100, 112, 114, 123, 126,
Rossiter, Clinton, 8
Rousseau, 10, 181 n. 9, 183 n. 8,
193 n. 14
Schattschneider, E. E., 1
Senate, 82, 83, 103, 110, 111,
113, 118, 123, 126, 130, 131,
132, 144, 150, 167, 168
Separation of Powers, 5, 6, 107,
127, 131, 132, 141, 143
Supreme Court, see Court of
United States
Tocqueville, Alexis de, 39
aim of a constitution, 124
civic, 156

in republican government,
in the American founding, 48
in the American people, 122
in the American republic, 139156
in the compact, 12, 13, 40
of the people, 155, 174
of the president, 128
Wholly popular, 77-80, 109116, 151