In the seven-month period prior to the adoption of the Constitution, from October 1787 to May, 1788, Alexander Hamilton and James Madison (with a small contribution from John Jay) produced a series of outstanding essays popularly known as The Federalist Papers, designed to sell readers on the idea of ratification. The Federalist, as it is properly called, was more than just a sales document. Thomas Jefferson called The Federalist “the best commentary on the principles of government which was ever written.” Meyerson summarizes the issues covered in The Federalist, including the balance of power among the three branches and different levels of government, the danger of factionalism, and the role of the courts, seeking to show why this brilliant collection retains relevance in the interpretation of the Constitution even today.
Meyerson suggests that appreciation of The Federalist has been compromised by the disagreement between “originalists” and “non-originalists.” Originalists contend, as explained by Justice Scalia in a speech in 2005, that interpretation of the Constitution should begin with the text itself, in an attempt “to give that text the meaning that it bore when it was adopted by the people.”
Arguments in favor of originalism include that it provides the best mechanism for preventing judges from deciding cases based on their personal preferences instead of on legal principles. Moreover, the fact is that the legitimacy of the American polity is based on the Constitution as it was written. As Madison pointed out, repeated changes in the Constitution would lead people to assume their founding document [and therefore polity] was flawed and could or should be replaced.
The Federalist, Meyerson argues, can bridge the gap between the seemingly irreconcilable approaches of Constitutional interpretation. Understanding why it was written and what it contains can illuminate the answer to “how and when we should call upon the views of the framers….” Specifically, Meyerson points out that because Hamilton and Madison both attended the Convention, for which no proceedings were released, The Federalist “explains, in detail, the logic and reasoning behind the choices made by those who drafted the Constitution in Philadelphia.” No less importantly, The Federalist “showed how these choices reflected the goals and ideals of the population of their time.”
Unfortunately, shortly after the generation of The Federalist Papers, Hamilton and Madison had a falling out over a number of issues, and Madison, “acquiescing to the views of Jefferson,” became a bitter enemy of Hamilton. Both Hamilton and Madison used The Federalist to argue against each other, even taking positions contrary to those espoused in the essays! As an example, Jefferson was incensed when President Washington (who Jefferson considered to be a puppet of Hamilton) declared neutrality in the war between England and France. Hamilton published some essays defending Washington’s position. Jefferson, an unrepentant Francophile even knowing the excesses of the French Revolution, wrote to Madison in July, 1793:
For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public.”
Jefferson preferred to execute his dirty tricks through the agencies of others, Madison being one his preferred proxies. But in this instance, the problem for Madison was that Hamilton was making points consistent with what Madison had written in The Federalist Papers. Meyerson notes that “Madison reluctantly took up the challenge,” but was never able to rebut Hamilton.
In fact, Meyerson advises us to use caution in relying on statements about The Federalist Papers made by Hamilton and Madison after ratification of the Constitution: “They used temporary, mutable stratagems, adapted solely to support the political positions they were championing at the moment.”
Meyerson suggests that if we avoid that trap, we will benefit greatly from reference to The Federalist Papers. He asserts “the history of the drafting and ratification of a document such as the Constitution simply cannot be irrelevant in understanding the meaning of unclear terms and enigmatic omissions.” Further, he opines “original meaning, whenever it can be recovered, should … prevail over the lesser acts of legislators and the preferences of jurists.” He points out how helpful it has been to have such a thorough understanding of what the words meant in the Constitution as opposed to the Bill of Rights and subsequent amendments, for which such documentation is lacking.
Nevertheless, he observes that sometimes it is not possible to uncover an original meaning. Additionally, we now have a “more evolved understanding” of some issues, such as the rights of minorities. Certainly we must not treat The Federalist as “holy writ;” however, the overall structure of our government has not changed in 200 years, and there is much in The Federalist that is instructive on the balance of power and dangers of usurpation by one branch or another.
Evaluation: This is an interesting overview of the writing of The Federalist Papers and the uses to which it has been put from our early Republic through the present Supreme Court. Meyerson tries to give both sides of the originalist – non-originalist issue, although his respect for the brilliance and continued relevancy of The Federalist Papers is clear. His book serves as a useful reminder that the Constitution is the legitimizing document of this country, and should not be trimmed to suit the political tides of the moment.
Published by Basic Books, 2008