quotations from chairman federalist

QUOTATIONS FROM CHAIRMAN FEDERALIST

Two and a quarter centuries after it was written it is easy to sharpshoot the Constitution, as did Hendrik Hertzberg, reviewing Robert A. Dahl, How Democratic Is the American Constitution?, New Yorker, July 29, 2002. Slavery is an easy target and equal state representation in the Senate has long outlived its usefulness, which was about the extent of the discussion. If I might ask a stupid question, however, could we sophisticated moderns, with two centuries of 20/20 hindsight, do any better today?

How well, for instance, are we doing today on such long-running issues as abortion and capital punishment? Or something even since Hertzberg's review, war?

Not that we want it competely democratic to begin with. The whole point of a written constitution and a Bill of Rights in particular is to curb the tyranny of the majority. Not that we presumptuous moderns have outgrown the problem.

Does anyone else remember thirty odd years ago, with the Vietnam War going full blast, when some people typed up the Declaration of Independence and the Bill of Rights on plain white paper, no fancy script or parchment, went out on the public streets, and asked people to sign them? Guess what? They got called Communists!

Some years earlier the Chief Justice Earl Warren had doubted the Bill of Rights could have been passed at the time.

At least Hertzberg admits to post founder culpability, in the form of Supreme Court decisions. In any event, the Constitution as we know it today, is considerably less than perfect. If I might ask another stupid question, however, did the founding fathers let us down? Or did we let them down?

Ever hear of the Federalist Papers? Lots of people have not, including supposedly intelligent college graduates. Ever go through them in any depth, at least beyond the relatively well known passages on factions in No. 10?

Lots more have not, including quite a few legal scholars, so-called.

When the Constitution was first released by the 1787 Convention, and not being the revised Articles of Confederation it was called to produce, there was a big controversy whether it should be ratified or not. To persuade the public to ratify it, particularly in New York, three members of the Convention, John Jay, Alexander Hamilton, and James Madison, wrote 85 essays to explain its meaning, first published anonymously in newspapers. They have been cited in many court decisions since then, if not always when needed.

One slight warning- they take considerable effort to read and understand. They written on a considerably higher level than most present day pseudo-profundity. Once the method in their madness sinks in, nevertheless, we prisoners of temporal provincialism might handle a thing or two better ourselves.

Not that we want it too terribly undemocratic, either. Those white-wigged, slave-driving old fogeys actually had a better idea of democratic accountability than our high-flying legal obscurantists today. James Madison, in Federalist 62, offered impeccably elegant grounds to declare unconstitutional the innumerable, impossibly complicated laws currently on the books. As an argument for the Senate, it just goes to show that body is not performing its intended function. What legal or political commentary of the past half century or more comes anywhere close to this?

"The internal effects of a mutable policy are still more calamitous. It poisons

the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow..."

"... Every new regulation concerning commerce or revenue... presents a new harvest to those who watch the change, and can trace the consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow citizens. This is a state of affairs in which it may be said with some truth that laws are made for the few, not for the many." (original emphasis)

But on to the crunch. What passes for "original intent" these days is laughable indeed when we compare it to the real thing. In Bennis v. Michigan, 516 U.S. 442 (1996), the mossbacks on the U.S. Supreme Court held forfeiture laws constitutional in routine law enforcement. A Michigan couple owned a $600 jalopy, which he used to pick up a prostitute on the way home from work. He got caught and the car was forfeited, her interest as well as his. Rehnquist’s majority opinion cited forfeiture of ships used in smuggling and stills used in illegal production, that such precedents were too well established to change now. Thomas concurred, that innocence had little to do with it. So did supposedly liberal Ginsburg, that "equitable" considerations tempered the injustice. Stevens dissented, joined by Breyer and Souter, on personal responsibility, that indeed the wife herself was the real victim. Kennedy’s dissent distinguished between ships used in smuggling and items of everyday life. This excerpt from Federalist 12, by Alexander Hamilton, however, urging the very formation of the Union, one country instead of several, went unmentioned. It is perhaps irrelevant today, amidst our tolerance of"arbitrary and vexatious powers" in a variety of matters, "anti-terrorism" only being the most recent:

"In France there is an army of patrols (as they are called) constantly employed to secure her fiscal regulations against the inroads of the dealers in contraband. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This proves the immense difficulty in preventing that species of traffic where there is an inland communication and shows in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation with respect to each other resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed would be intolerable in a free country."

The constitution is what the judges say it is, said Charles Evans Hughes, one time Chief Justice of the Supreme Court. Or is it what the framers say it is? The Supreme Court has at least twice held the constitutionality of the draft "beyond question," United States v. O’Brien, 391 U.S. 367 (1968); Lichter v. United States, 334 U.S. 742 (1946). From Federalist 22, 24, 25, 28, 29, and 46, however, we can see there is compulsory military service under the Constitution, but not under the army clause. The 18th century terminology is a bit tricky two centuries later; the "levies of men" begun before a declaration of war in No. 25 are definitely not conscripts, if we consult the context of the same phrase in No. 22. No. 24, by Hamilton, best summarizes the contrast between compulsory and professional military service, one that could have put a much greater dent in Vietnam War policies, had we not become so accustomed to the "arbitrary and vexatious powers" of contemporary life:

"... These garrisons (on the Western frontier) must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impractible; and if practible, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do so, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private individuals. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one indeed, but not the less real for being small."

See No. 46 on the final answer to the threat of a standing army in times of peace and the debates in the First Congress on the Bill of Rights, including a context to discern a different understanding of "keep and bear arms," we might find a solution to the long running gun control controversy, intractable to modernistic understanding, such as it is, one reasonably if not completely satisfactory to both sides.

Not that we have to fight the last war in the Federalist Papers; we can also fight the next one. Who are we modern provincials to snivel at the framers, anyway? How far have we fallen, indeed! What more pointed, more succinct demolition of U.S. foreign policy over the past half century, than that penned by John Jay in No. 5, if now the shoe is on the other foot, the policy that still has "foreign armies" in dozens of countries, over a decade after the end of the Cold War?

"...And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the character of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect."

Not that the Constitution is a pacifist document, by any stretch of the imagination, but it offers impeccable reasons for questioning war. Indeed, the very purpose of the Union was to keep us out of wars. as John Jay wrote in No. 3:

"The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them. If this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by united America as by disunited America; for if it should turn out that united America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations."

If the Declaration of Independence and the Bill of Rights are too "Communist" for some, then Federalist No. 6, by Alexander Hamilton, if outright Bolshevist by that sort of reckoning, is a pointed warning indeed as to who might really be making dupes of us:

"The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion- the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions between commercial nations. And there are others, not less numerous than either of the former, which take their origins entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification."

How far have we fallen? Written as a timeless commentary on human nature, Hamilton's observations in No. 8 are frighteningly timely, certainly in recent months, however dubious the threat to begin with. More so, why we have tolerated so many "arbitrary and vexatious powers" without question over the past few decades:

"... The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated over the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors but as their superiors. The transition from this disposition to that of considering them masters is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions to make a bold or effectual resistance to usurpations supported by the military power."

Listen up, all you "living constitution" flit-abouts, making up the rules as you go along, ever phobic of the "dead hand of the past," and all you pseudo-conservative noodniks, who think you can just throw your weight around forever, at home and abroad, to the next paragraph of Federalist No. 6, with more examples afterwards. This is what should really terrify us. Now, especially, that we have not heard lately of any Presidential connection to Enron, but instead about trying "to kill daddy":

"The celebrated Pericles, in compliance with the resentments of a prostitute, at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the Samnians. The same man, stimulated by private pique against the Megarensians, another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice in a supposed theft of the statuary of Phidias, or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, or trom a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the Peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian Commonwealth."

Here's hoping this was not too much of a strain on anyone, except perhaps the war-mongers. There are more "quotations from chairman Federalist" where these came from, some, indeed, more lyrical, most less. Here's hoping, again, that we overly entertained creatures of recent decades have enough mental effort left to figure out where we are, before we set out for points unknown.

The Federalist Papers are available in paperback for $8 or in the library. They should be on-line somewhere too.

William F. Wendt, Jr.