American Political Thought. Ken Kersch
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the creation of a strong, active national government both as a solution to the country’s current problems and as a foundation for the nation’s future glory as one of the world’s most powerful, eminent, and prosperous states – the equal, if not the better, of Great Britain or France. The young Hamilton, a financial genius, had penned brilliant pamphlets in support of the Revolution, and quickly came to the attention of the head of the revolutionary army, George Washington, with whom he became an aide-de-camp and an unusually close confidant. Hamilton spearheaded, and was the most prolific author of, The Federalist, a series of eighty-five essays published in the New York Independent Journal which his future rival, Thomas Jefferson, called “the best commentary on the principles of government which ever were written.” The Federalist essays struck “Hamiltonian” themes, such as a reiteration of the surpassing need for “energy” in government: that is, the idea that the national government should have power to act quickly, decisively, and effectively in carrying out its responsibilities. Hamilton insisted that, as the country’s travails under the Articles had made all too clear, the revolutionary era opposition between liberty and authority had to be rethought. The order and stability that a well-framed, energetic government could provide were not inherently a threat to liberty and justice but, ultimately, their guarantor. An appropriately empowered and effective national government, Hamilton argued, was worthy of the respect and esteem of all true republicans.
Hamilton’s argument for the ratification of the new Constitution centered on the relationship between (constitutionally) authorized means in the service of (legitimate) governmental ends, an approach he deployed most emblematically in the Opinion on the Constitutionality of the [National] Bank (1791), which he later prepared for President Washington while serving as the country’s first Treasury Secretary. Given the ultimate requirement of national self-preservation, some governmental powers, particularly those related to existential threats to the nation’s security, must be all but unlimited. On this, the ultimate test was success. But the national government also required all the powers essential to actively and energetically realize the full range of its constitutionally legitimate objectives. As such, the national government needed the power to tax. Federal law, moreover, where legitimate, had to be clearly supreme to any countervailing centrifugal assertions of control by the states. Weak government, Hamilton emphasized, is bad government. Borrowing from Hamilton, the Federalist Chief Justice John Marshall would soon insert this argument into one of his most celebrated – and excoriated – opinions: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”5
Given these concerns, Hamilton was perhaps the leading proponent of broad understandings of executive power. The unity of the office of the President was not accidental. Presidents often had to act quickly, with a keen eye to ever-changing threats and important national objectives. Hamilton was also a fervent proponent of a powerful federal judiciary, possessed of all the power necessary to void laws in contravention of the Constitution – what we now call “judicial review.”6 He was especially concerned that the courts could guarantee the rights of property and contract essential to the development of a dynamic capitalist economy. The requirements of the Constitution are the nation’s fundamental law, ratified by “we the people,” acting, in a rare moment, in their sovereign capacity, he explained in Federalist #78. As such, its requirements are foundational, and superior to ordinary legislation, adopted as part of the day-to-day business of representative legislatures. It is in the nature of things that in the case of conflict, the fundamental trumped the ordinary: the solemn stipulation of the people themselves trumped the actions taken by their agents. It was the job of independent, life-tenured federal judges, exercising their apolitical, legal judgment, to impartially enforce these foundational constitutional requirements. This would conduce to a government that would exercise – to the fullest extent of its authority – only its constitutional powers, while guaranteeing fundamental constitutional rights.
Albeit to a different degree with somewhat different preoccupations and concerns, James Madison was similarly alarmed by the national government’s fecklessness under the Articles of Confederation, and especially by the inflamed popular excesses of a state and local politics disturbingly heedless of rights.
The latent causes of faction are … sown into the nature of man…. The regulation of these various and interfering interests forms the principal task of modern legislation.
Federalist #10 (Publius [James Madison]) (1787)
Madison was adamant that the new Constitution provide the national government with an absolute veto power over state laws via a “council of revision” – and was chagrined when a measure proposing one failed to pass. Forced to take this defeat in his stride, Madison, in his contributions to The Federalist, explained the safeguards that the basic structures of the Constitution would provide for rights, given the document’s creation of the significantly stronger national government that he supported. (“[Y]ou must first enable the government to control the governed; and in the next place oblige it to control itself,” he wrote.) Madison reasoned his way through these countervailing concerns most succinctly in Federalists #10 and #51. There, he limned the core of the problem as one of “faction,” which in Federalist #10 he defined as “a number of citizens, whether amounting to majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
Unlike some of his peers, Madison did not trust that a virtuous citizenry would cure the problem of faction and guarantee liberty. His proposed solution was instead to establish a geographically extended “republic.” (Here he used his own, novel definition of the term, which departed from ancient understandings that were synonymous with direct citizen rule in small, unitary polities.) This would encompass a multiplicity of contending factions that would mitigate the effects of each through opposition, filter popular passions by instituting representative (as opposed to direct) democracy, and divide power with an eye to the encouraging clashes between contending governmental power centers. This design instituted a system of checks and balances through the mechanisms of federalism (the “compound republic”), the separation of powers (legislative, executive, and judicial), and the multiplication of civil society’s opposing factions through the extension of the sphere made possible by a large country.
The Antifederalists, a diverse group socially, culturally, ideologically, economically, and politically, were united by their alarm at the new Constitution, and unconvinced by the arguments made in its defense. They set themselves in fervent opposition to its adoption. Their objections were many, and they gave it all they had. The proposed Constitution had been hatched by a secret cabal, making an illegal end-run around the Articles. It had done away with the sovereign states in favor of a consolidated, all-powerful central state. It had abandoned core principles of republican government, which political philosophers from Aristotle to Cicero to Montesquieu had taught was impossible over such a broad geographic expanse. There were too few representatives, rendering the system democratically deficient. This fatal deficiency was especially troublesome since Antifederalists held that the role of representatives in a republic was not to act freely as their trustees but to mirror and register the views of their constituents.7 Given the Constitution’s ambiguities, and a host of dangerous clauses, moreover, its grant of powers to government was, in effect, plenary. Astonishingly – especially given the country’s English constitutional heritage – there was no national Bill of Rights, which left critical guarantees like the freedom of speech, rights of conscience and religious liberty, due process of law, and the right to keep and bear arms to the whims of a distant governing class. Alas, bemoaned the Antifederalists, this was as one would expect from a document that had sprung from the minds – and served the interests – of a scheming and remote aristocratic elite.
Some contemporary scholars have argued that, rather than simply being naysayers, those who objected to the Constitution – the likes of Edmund Randolph, George Mason, Elbridge Gerry, and Patrick Henry, and pseudonymous authors like Cato, Brutus, and the Federal Farmer – were informed by a coherent, republican