ORIGINS: THE ARTICLES OF CONFEDERATION (1781-1789)
The Articles of Confederation and Perpetual Union was the first constitution formed among the thirteen original states of the United States. It was approved by the Second Continental Congress in 1777 but did not come into force until 1781.
The Articles of Confederation was the first attempt by the newly independent American colonies to form a cohesive union governed by a written constitution. It established that the states were united in a “league of friendship” and that they mutually agreed to cede some sovereignty to a central government. While it represented an important step in establishing the political structure of the United States, it was plagued with many problems because the federal government that it established was too limited to effectively govern the new nation. The limitations of the Articles of Confederation were resolved when it was put aside in favor of the U.S. Constitution.
One of the major flaws of the Articles of Confederation was that it established a very weak executive. The president of the United States in Congress Assembled (the official title of the executive of the document) could not act independently in any way. They were a ceremonial figurehead that primarily served as the chief administrator of Congress. They also served a relatively short one-year term. When the flaws of the Articles of Confederation became apparent, Alexander Hamilton argued in Federalist No. 70 that the U.S. government should adopt the exact opposite model than what was included in the Articles by having a unitary executive who could act independently.
The weakness of the executive branch had far-reaching implications. The fact that Congress was responsible for all major decisions, not a unitary executive, hindered the new nation’s ability to develop effective foreign policy. Under the Articles of Confederation, Congress needed to have a quorum to approve any treaties. This rarely occurred, so treaties and foreign policy decisions, and proposals for political alliances often languished in Congress for months.
Under the Articles of Confederation, Congress also lacked any way to compel the states to take action. Without any enforcement mechanisms at its disposal, the federal government could not compel states to provide troops for military actions or collect taxes. Without either the “power of the purse” or control of the military, the federal government could not take meaningful action on a national scale. This lack of power became apparent after Shay’s Rebellion when the central struggled to marshal enough troops to calm the disturbance.
By 1787, it was clear that the Articles of Confederation needed to be significantly revised. The states called a convention, later called the Constitutional Convention, which initially intended to rewrite the document. It soon became apparent that more significant changes were needed than just a few edits. The Constitutional Convention set itself to developing the U.S. Constitution, which would replace the Articles of Confederation.
To ratify the U.S. Constitution, Alexander Hamilton, John Madison, and John Jay wrote and published a series of 85 essays anonymously. These essays later became known as the Federalist Papers.
ARTICLES OF CONFEDERATION KEY TERMS
Sovereignty Sovereignty refers to the authority to provide governance. The Articles of Confederation reserved most of sovereignty for the states. It established a very weak central government that did not have the sovereignty to compel states to furnish armies, effectively negotiate foreign policy, or collect taxes.
Confederation A confederation is a group of entities united under a shared cause. The Articles of Confederation united the new states in a “league of friendship” that stressed the independent nature of each of the states. The confederation that it formed was based on voluntary cooperation.
Ratification Ratification is the act of giving formal consent. For the Articles of Confederation to be ratified, it took almost four years for all thirteen states to agree to the document.
HERE’S WHAT YOU NEED TO KNOW ABOUT SOME OF THE MOST SIGNIFICANT OF THE FEDERALIST PAPERS
FEDERALIST NO. 10. (1787)
The tenth essay in the Federalist Papers, a collection of writings that urged the people of New York to ratify the proposed Constitution. Although the essay was initially published anonymously under the name “Publius,” it has since been attributed to James Madison.
SUMMARY OF FEDERALIST NO. 10
In Federalist No. 10, James Madison urges the people of New York to ratify the U.S. Constitution on the basis of its proposed republican government. According to Madison, a large republic, such as the one proposed by the Constitution, is the ideal form of government because it is able to effectively balance majority rule versus minority rights. In this essay, Madison was defending the proposed Constitution against critics, such as the author of Brutus No. 1, who argued that a large national republic would be unwieldy and ineffective.
Madison supported the idea of a nationwide republican government because he feared that both smaller republics that gave more power to the states and a nationwide direct democracy would lead to factionalism. Madison believed that factions were very dangerous because a committed faction could use its power to override the interests of others. The majority could easily override the interests of the minority.
Madison argued that a national republican government could prevent this kind of tyranny of the majority through the use of elected representatives. According to the argument in Federalist No. 10, a group of elected representatives is more likely to represent the actual will of a community than a direct democracy system in which the people vote directly, because the masses are easily swayed by the appeal of factionalism. Elected officials are less likely to be swayed because they are bound to represent their community’s greater interests.
In Federalist No. 10, Madison also responds to the Anti-Federalist argument that the new nation was geographically too large to be effectively managed by a strong republican government. Some Anti-Federalists argued that the geographic spread of the United States, along with its economic and social diversity, meant that it was not well-suited for a republic because it included so many diverse interests. Madison refuted this argument by suggesting that the diversity of the new nation, both in terms of geography and in terms of social and economic factors, was actually its greatest strength. According to Federalist No. 10, a diverse country could produce more “fit characters” for each election because it could draw from a wider population, and it could reduce the power of individual factions because so many different interest groups would need to compete for attention. No one faction would be able to wield an outsized amount of power.
Federalist No. 10 is often cited by the Supreme Court to support the argument that the Founding Fathers did not intend for the political landscape of American politics to be defined by sharp partisan divisions.
FEDERALIST NO. 10 KEY TERMS
Faction Federalist No. 10 is deeply concerned with the issue of factions. Within the letter, Madison defines factions as a group of united citizens that are adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” He was deeply concerned that factions, driven by their own self-interest, could interfere with the rights of other citizens.
Property According to Madison, property could lead to factionalism because the distribution of property in society is uneven. Federalist No. 10 expresses a concern that wealthy property owners could become an oppressive minority and that those people without property could form a faction that could force a redistribution of wealth.
Republic A republic is a political unit in which political power is held by the people and their elected representatives. Madison supported the idea of a large republic because he felt that it would avoid the factionalism of direct democracy.
FEDERALIST NO. 51 (1788)
The fifty-first essay in the Federalist Papers, a collection of writings that urged the people of New York to ratify the proposed Constitution. Although the essay was initially published anonymously under the name “Publius,” it has since been attributed to James Madison.
SUMMARY OF FEDERALIST NO. 51
In Federalist No. 51, James Madison launches a passionate defense of the proposed structure of the federal government under the U.S. Constitution. According to Madison, the Constitution developed a thoughtful response to the challenges of governance by developing a clear separation of powers embodied in three distinct branches of government and weighing the powers of these branches against each other through a series of checks and balances. In Federalist No. 51, Madison is responding to Anti-Federalist critics, such as the author of Brutus No. 1, who argued that the federal government was being given too much power.
Madison supported the idea of a government with clear separations of powers and checks and balances because of his belief that the government of the United States ultimately derived its authority from the people. He argued that balancing the branches of government against each other would prevent any one branch of government from exercising excessive power over the people. He argued that “if men were angels, no government would be necessary,” but since men were not angels, structural systems needed to be put in place to prevent those in power from trying to gain more authority at the expense of others.
In addition to the separation of powers at the federal level, Madison also supported the proposed Constitution because it would implement a compound republic which, like the federal checks and balances, would safeguard the rights of the people by weighing different components of the government against each other. In Federalist No. 51, Madison argues that the rights of the people would be well-protected under the government formed by the Constitution because they would be able to participate in republics at the local, state, and national level. All of these forms of government would also have additional checks and balances, leading to a compound system in which the rights of people were well protected from the dangers of tyranny.
Finally, Madison returns to a theme he first expressed in Federalist No. 10 by warning the American people again about the dangers of factions. Factions were very dangerous according to Madison because a committed faction could use their power to override the interests of others, leading to complicated questions of majority rule versus minority rights. In order to avoid a tyranny of the majority, Madison advocated for checks and balances and a separation of powers at all levels of government.
FEDERALIST NO. 51 KEY TERMS
Separation of Powers Federalist No. 51 argued that the ideal form of government for the United States was one with a separation of powers, in which different branches of government have different responsibilities. It supported the idea of three separate branches of government: the executive, the legislature, and the judiciary.
Checks and Balances Along with a separation of powers, Madison supported the idea of checks and balances within the government. According to this political theory, first developed by the Enlightenment thinker Montesquieu in The Spirit of Laws (1748), each branch of government should be able to limit the power of the other two. In Federalist No. 51, Madison argued that “ambition must be made to counteract ambition” in order to keep any one branch from wielding too much power.
Compound Republic A republic is a political unit in which political power is held by the people and their elected representatives. Madison supported the idea of a large republic because he felt that it would avoid the factionalism of direct democracy. In Federalist No. 51, he supported the idea of a compound republic in which power was divided first among the states and the federal government and then further divided within the federal government.
Factions Although Federalist No. 51 is primarily concerned about the separation of powers and checks and balances, it returns to the same theme of Federalist No. 10 by warning against factions. Madison was deeply concerned that factions, driven by their own self-interest, could interfere with the rights of other citizens.
FEDERALIST NO. 70 (1788)
The seventieth essay in the Federalist Papers, a collection of writings that urged the people of New York to ratify the proposed Constitution. Federalist No. 70 is the fourth in a series of eleven letters that discuss the ideal role and function of the executive branch. Although the essay was initially published anonymously under the name “Publius,” it has since been attributed to Alexander Hamilton.
SUMMARY OF FEDERALIST NO. 70
In Federalist No. 70, Alexander Hamilton defended the idea of a unitary executive against critics who argued that the executive branch should have an executive committee or a privy council. According to Hamilton, a unitary executive was the best option for the United States because it allowed the executive branch to operate with energy and safety. In addition, Hamilton expressed the view that having one single person represent the whole branch of the government increased the accountability of the executive branch as a whole.
Throughout Federalist No. 70, Hamilton argues for the importance of “energy” for the effective functioning of the executive branch. According to Hamilton, the energy of the executive constituted four distinct components: unity, duration, salary, and competent powers. A unitary executive must be able to hold a range of powers in one person (unity), serve long enough to provide stability to the government (duration), receive a salary so they would not be tempted to take bribes (salary), and have robust powers like the ability to veto actions by other branches (competent powers). He argued that an executive committee or a privy council would cause the executive branch to act with less energy.
Hamilton also supported the idea of unitary executive because he felt that having a single person represent the executive branch would lead to more safety. He uses the term “safety” within the letter in a way that was common for political thinkers of the time but is slightly less common today. Within his writings, safety refers to the ability to keep the republic safe and secure. According to Hamilton, a unitary executive would lead to this kind of safety because the president would be dependent on the people and feel a sense of direct responsibility for them. Taken together, these two aspects would ensure that the republican ideals of the new nation were protected.
Finally, Federalist No. 70 addresses the idea that having an unitary executive would increase the ability of the American people to carefully observe the executive branch. He argued that the public would be able to narrowly watch one person but may not be able to devote the same kind of attention to a larger group of people. According to Hamilton, groups could easily “conceal faults and destroy responsibility.”
Presidents have consistently used Federalist No. 70 to support the expanded presidential power, especially in times of crisis. For example, President Lincoln’s decision to implement martial law during the American Civil War was most likely influenced by Hamilton’s argument. More recently, legal advisors for both President George W. Bush and President Obama have cited Federalist No. 70 to expand executive power.
FEDERALIST NO. 70 KEY TERMS
Unitary Executive A unitary executive is a single person who represents the executive branch. Hamilton proposed that the president of the United States be able to act as an individual, rather than be regulated by an executive committee or privy council.
Energy According to Hamilton, the energy of the executive is “the leading character in the definition of good government.” Hamilton’s definition of what constituted a president’s energy included four aspects: unity, duration, salary, and competent powers. Some scholars have interpreted the use of this term within Federalist No. 70 to mean a president’s activity level, while others interpret it as a president’s willingness to represent the will of the people.
Veto In Federalist No. 70, Hamilton discusses the executive veto as one of the most powerful tools of that branch of government. According to Hamilton, the presidential veto operated as a robust check on the powers of the other two branches of government.
FEDERALIST NO. 78 (1788)
The seventy-eighth essay in the Federalist Papers, a collection of writings that urged the people of New York to ratify the proposed U.S. Constitution. Federalist No. 78 is the first in a series of six letters that discuss the ideal role and function of the judiciary branch. Although the essay was initially published anonymously under the name “Publius,” it has since been attributed to Alexander Hamilton.
SUMMARY OF FEDERALIST NO. 78
In Federalist No. 78, Alexander Hamilton passionately defends the structure of the judiciary branch under the proposed U.S. Constitution as being a politically sound option for the new nation. According to Hamilton, the U.S. Constitution outlines a judiciary branch that is independent and politically insulated while balancing its powers well against those of the other two branches of government. Federalist No. 78 was written in response to Anti-Federalist concerns that the proposed Constitution did not provide enough limitations on the power of the judiciary.
One of Hamilton’s main arguments in favor of the proposed structure of the judiciary is that it establishes an independent branch of government. There were many safeguards built into the U.S. Constitution that ensured that the federal courts operated independently of political trends, such as the fact that judges to the Supreme Court were elected for life appointments and that they were unelected officials. According to Hamilton, this insulated judges from feeling the need to rule in a certain way to satisfy a constituency or out of fear for their job. Instead, they could focus on interpreting the Constitution without bias or influence.
Hamilton also supported the proposed judiciary because it had limits to its authority. Under the proposed Constitution, Congress had control over the “power of the purse” and the executive had power over the military, but the judiciary did not have any power that rivaled the other branches. In Hamilton’s view, this made the judiciary the weakest of all three branches. This was a good thing, according to Hamilton, because it limited the chance that the judiciary could become corrupted.
The only real power retained by the judicial branch was the power of judgement. The judiciary could review decisions made by the other two branches to ensure that they fit within what was allowed by the Constitution, but it ultimately relied on the other branches to enforce those decisions. Hamilton felt that the process of interpreting and applying the Constitution, called judicial review, could give the judiciary an appropriate amount of power to participate in the checks and balances of government without giving it too much authority.
Federalist No. 78 established an important precedent for judicial power, especially the process of judicial review. Marbury v. Madison (1803) affirmed that judicial review was an important power of the judicial branch.
FEDERALIST NO. 78 KEY TERMS
Federalist A supporter of the proposed U.S. Constitution. Federalists the U.S. Constitution because it instituted a strong federal government. They were opposed by Anti-Federalists who felt that the Constitution gave the federal government too much power at the cost of the states’ authority.
Appointment In Federalist No. 78, Hamilton argued that federal judges should have lifelong appointments. He argued that a life appointment would help keep the unelected federal judges insulated from political trends.
Judicial Review The principle of judicial review allows the federal courts to review the constitutionality of decisions made by the legislature. According to Hamilton, this power was the greatest power of the judiciary because it did not have control over money or the military; the judiciary’s function was “merely judgement.” The principle of judicial review would later become official case law in the United States through the decision in Marbury v. Madison (1803).
TOM RICHEY EXPLAINS FEDERALIST NO. 78
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