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 political outlook and philosophy.8 Evincing a pronounced affinity for the political ideas that sustained the ancient Greek and Roman republics, the Antifederalists, it has been observed, celebrated the political life of small, pastoral republics, comprised of a virtuous and engaged citizenry. They were ever alive to the threats to self-government posed by moral corruption and decline, fomented by distant elites, lacking in patriotism and lusting for power. Rule by these corrupt and distant elites was heedless, if not a self-conscious enemy, of the institutions of local civil society – family, church, school, and local government – which promoted and sustained character and civic and Christian virtue. All this portended either decline or tyranny. As such, the Antifederalists affirmatively advanced the republican values of active political participation aimed at the common good, sacrifice, localism, and the promotion, both institutionally and otherwise, of civic and personal character and virtue.
Against this resistance, which might well have succeeded, it helped that the Federalists counted some of the new nation’s most illustrious figures – not least the revolutionary hero George Washington, who it was understood would serve as the nation’s first President – among their number. Although published in New York with an eye to the ratification vote there, The Federalist essays were widely distributed. The Federalists quickly agreed to add a Bill of Rights immediately after the document’s ratification. The politically savvy Alexander Hamilton fashioned a brilliant financial plan – soon to be implemented via the plan set out in his Report on Credit (1790) and Report on Manufactures (1791) – that made it in the interest of the country’s business and financial classes and the highly indebted states to support ratification. In a sop to the commercial and financial periphery, the country’s capital city was moved south from the northern financial centers of New York and Philadelphia to Virginia (today, Washington, DC).
Hamiltonian and Jeffersonian Visions
One of the more notable features of American political thought is the longevity of the original Federalist–Antifederalist debates, which in many ways have continued to define American political oppositions to the present day. Once the Constitution was adopted, the former opponents of the Constitution almost immediately – and, some have recently argued, strategically, and perhaps insincerely – sloughed off their resistance like an old skin, becoming as fervently loyal to the Constitution as the most ardent Federalists.9 The new institutions of government were up and running. In that sense, things were settled. Vehement debates over the concrete assertions of powers by these institutions – about distant national power, consolidation, and threats to rights – were, however, carried forward, now transposed from debates about constitutional design into debates about constitutional interpretation.
These antagonisms moved into a new stage almost immediately during the First Congress. Within President Washington’s administration – which understood itself as unaffiliated with anything so disreputably factional as a political party – Alexander Hamilton, now Secretary of the Treasury, worked to advance the Federalist program of a powerful central government, including
