those Anti-Federalists who argue that the federal courts—and the Supreme Court in particular—will become the dominant branch of government, because they will be free to go beyond the letter of the Constitution to interpret its “spirit.” Publius responds by noting that the Constitution does not “directly” authorize the “national courts to construe the laws according to the spirit of the Constitution” and that, moreover, the latitude given to the national courts by the Constitution is no greater than that enjoyed by the State courts. Publius holds that the “danger of judiciary encroachments” on the legislature is a “phantom,” and that the legislative power to remove judges through the impeachment process is a sufficient deterrent against judicial usurpation.
After stressing the need for “inferior” federal courts—that is, courts below the Supreme Court—by pointing out that the existing State courts could not very well provide for uniform and impartial interpretations of the national laws (No. 81), Publius takes up the matter of the relationship between the federal and State courts in No. 82. He assures his readers that the adoption of the Constitution will not diminish the jurisdiction of the State courts, save where there is express provision for exclusive federal jurisdiction. He maintains that the degree to which the State courts will share jurisdiction with the federal courts over those matters that are “peculiar to” or “grow out of” the Constitution is a matter for Congress to determine. He again notes that the need for uniformity requires that in cases of concurrent jurisdiction there must be appeal to the national courts.
In the longest of all the essays, No. 83, Publius engages in a detailed response to Anti-Federalists who argue that the proposed Constitution abolishes trial by jury in civil cases. Publius makes a number of points, three of which are central. First, he rejects the notion that the silence of the proposed Constitution on this score can be interpreted as abolishing trial by jury in such cases. Second, he does not personally believe that trial by jury in all civil cases, unlike trial by jury in criminal cases, is an indispensable “safeguard to liberty.” And, finally, because the practices of the States with regard to civil cases varied, the members of the Convention wisely left this matter to the discretion of Congress.
H. Concluding Observations
By way of picking up loose ends, Publius takes up (No. 84) certain “miscellaneous” matters which, he contends, “did not fall naturally under any particular head, or were forgotten in their proper places.” The most important of these he deems to be the objection that the proposed Constitution “contains no bill of rights.”
Publius approaches this objection from several perspectives. He begins by noting that the proposed Constitution already protects a number of important rights, including the guarantee of the writ of habeas corpus and the prohibition against ex post facto laws; and that, unlike the rights proclaimed in the New York Constitution, the rights in the proposed federal Constitution are not alterable by simple legislation. He then observes that bills of rights, “according to their primitive signification,” are grants of privilege from the sovereign to the people and, as such, have no place in republican governments founded on the consent of the people. “WE, THE PEOPLE” of the Preamble, he declares, “is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our state bills of rights.” He goes on to maintain “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary . . . but would even be dangerous. . . . They would,” he argues, “contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He remarks as well that the security for liberties rests ultimately “on public opinion, and on the general spirit of the people and of the government.”
The last essay, Federalist No. 85, contains Publius’s final plea for ratification of the Constitution. Holding that “I never expect to see a perfect work from imperfect man,” he maintains that the proposed Constitution is “the best which our political situation, habits, and opinions will admit.” To counter Anti-Federalists urging the addition of amendments as a precondition for ratification, Publius stresses the dangers of seeking to perfect the Constitution through amendments “prior to” its operation. He also observes that such a precondition would require starting the ratification process all over again, producing a delay that might well result in “anarchy, civil war, a perpetual alienation of the states from one another, and perhaps the military despotism of a victorious demagogue.” He notes, by way of answering those concerned about the national government resisting changes that would diminish its powers, that the States can initiate amendments once the system is set in motion; that they will not have to rely upon Congress, an arm of the national government, for this purpose. Recurring to a theme of Federalist No. 1, he strongly suggests that the nation is at the crossroads, and that the opportunity for a republican union might never again present itself.
Preface to the Gideon Edition (1818)
The present edition of the Federalist contains all the numbers of that work, as revised by their authors; and it is the only one to which the remark will apply. Former editions, indeed, it is understood, had the advantage of a revisal from Mr. Hamilton and Mr. Jay, but the numbers written by Mr. Madison still remained in the state in which they originally issued from the press, and contained many inaccuracies. The publisher of this volume has been so fortunate as to procure from Mr. Madison the copy of the work which that gentleman had preserved for himself, with corrections of the papers, of which he is the author, in his own hand. The publication of the Federalist, therefore, may be considered, in this instance, as perfect; and it is confidently presented to the public as a standard edition.
Some altercation has occasionally taken place concerning the authorship of certain numbers of the Federalist, a few of those now ascertained to have been written by Mr. Madison having been claimed for Mr. Hamilton. It is difficult to perceive the propriety or utility of such an altercation; for whether we assign the disputed papers to the one or to the other, they are all admitted to be genuine, and there will still remain to either of these gentlemen an unquestioned number sufficient to establish for him a solid reputation for sagacity, wisdom, and patriotism. It is not the extent of a man’s writings, but the excellence of them, that constitutes his claim upon his cotemporaries and upon posterity for the character of intellectual superiority: and, to the reader, the difference in this case is nothing, since he will receive instruction from the perusal, let them have been written by whom they may.
The present moment may be regarded as peculiarly favourable for the republication of this work. Mr. Hamilton is dead; and both Mr. Jay and Mr. Madison have retired from the busy scenes of life. The atmosphere of political passions through which their principles and actions were lately viewed has disappeared, and has been replaced by one more pure and tranquil. Their political virtues are now manifest and almost universally admitted. Time, which tests the truth of every thing, has been just to their merits, and converted the reproaches of party spirit into expressions of gratitude for the usefulness of their labours. It is to be hoped that neither a mistaken zeal of friendship for departed worth, nor an inclination to flatter living virtue, will induce any one to disturb this growing sentiment of veneration.
To the Federalist the publisher has added the Letters of Pacificus, written by Mr. Hamilton, and an answer to those Letters by Helvidius, from the pen of Mr. Madison. As these two eminent men had laboured in unison to inculcate the general advantages to be derived from the Constitution, it cannot be deemed irrelevant to shew in what particular point, as it respects the practical construction of that instrument, they afterwards differed. The community is, perhaps, always more enlightened by the candid criticisms of intelligent conflicting minds than it is by their concurring opinions.
In this collection, the Act of Confederation and the Constitution of the United States also find an appropriate place. They are the text upon which
