The New Federalist Papers.
The original Federalist Papers have become almost as famous as the Constitution they explicate. James Madison, Alexander Hamilton, and John Jay wrote them to persuade the new American states to ratify the federal charter drafted by the Philadelphia Convention. Originally published in the newspapers of the time, the Federalist Papers could easily have disappeared from view along with the rest of the daily news of the 1780s. Instead, they became our most important record of the formation of the republic. It is only a slight exaggeration to say that as the Bible is to the Creation, so the Federalist Papers are to the Constitution.
From time to time in our history, advocates and opponents of major changes in our political system have invoked the Federalist Papers Both North and South cited them during the run-up to the Civil War. After World War II, a group calling itself the World Federalists proposed a union of the major democracies around the globe (including China and South Africa). Boasting supporters such as Gen. George Marshall, Secretary of State John Foster Dulles, Supreme Court Justice Owen J. Roberts, and Sen. Estes Kefauver, the group proposed a federal charter based largely on the American Constitution, under which the United States would be one of 20-odd constituent states. To advocate the idea, retired Justice Roberts, Clarence Streit and J. Schmidt wrote The New Federalist Papers, published in 1950.
Now we have another set of New Federalist Papers, written by a more scholarly triumvirate: historian Alan Brinkley, political scientist Nelson W. Polsby, and constitutional law professor Kathleen M. Sullivan. Far from advocating so fundamental a change in our political structure as the Roberts-Streit-Schmidt proposal, the message this time is essentially to leave well enough alone. (One is reminded of the first Reform Act that democratized the electorate and make-up of the British Parliament; during the debate an opponent of the Bill argued: "Reform, Reform, why do we want Reform? Things are already bad enough as they are!")
A nonradical triad if ever there was one, Brinkley, Polsby, and Sullivan have written an admirable and highly readable volume of centrist political thought, providing a welcome antidote to what we've been hearing from the right and left. They see the flaws in our constitutional system, but they see its virtues as well. They recognize our failures to achieve policy outcomes as decisively as the parliamentary systems, but they blame these failures less on the Constitution than on the political structures that have evolved beneath it.
Polsby reminds us that while the framers modeled much of our Constitution on Montesquieu's concept of the "separation of powers" among the executive, the legislature, and the courts, they departed from his theory in one crucial respect. They did not lodge the executive power solely in the president, having suffered from the unchecked power of King George. Nor did they lodge the legislative power solely in the Congress; as much as they admired the British Parliament for resisting the King's demands, they had endured the injustice of the Stamp Act and taxation without representation. And although they wanted the courts to protect them against the excesses of the other two branches, as a colony of religious dissidents and smugglers they feared being tried by judges appointed solely by the king.
For those reasons, the framers decided against three separate branches, each with absolute power in its own sphere; they opted instead for three separate departments with shared powers. Each department could exercise its principal power only with the consent of one or both of the other two. For example, laws passed by Congress were made subject to a qualified veto of the president and to review of the law's constitutionality by the courts. Appointments and treaties made by the president were subject to approval by the Senate. The jurisdiction and salaries of the judges were to be largely determined by Congress, and the power to appoint them was lodged in the president with the advice and consent of the Senate.
Obviously, under such a system, the three branches have to be in general agreement for the government to function effectively. But much as the Framers wanted effectiveness at the federal level -- the lack of effectiveness having been the basic structural flaw of the Articles of Confederation -- they feared a return to what they regarded as the tyranny of the British king and Parliament. This was the reasoning behind the framers' creation of what the original Federalist Papers described as a system of "checks and ballances."
When the three departments with shared powers do not generally agree, as happens frequently, the result is "gridlock." How to reduce gridlock without creating the tyranny of a narrow ideological majority is the issue that has preoccupied the American polity ever since our independence as a nation was won. It is also the major subject of this book.
As Polsby points out, Madison sought to check the "rise of faction" -- his euphemism for the special interest groupings that dominated state legislatures -- by creating a national legislature overseeing a vast territory with numerous regionally based interests that differed sharply from one another and were thus difficult to combine into cohesive national parties with narrow ideological goals. The Constitution itself is strangely silent about political parties, their sole mention being the indirect reference to primary elections in the 20th-century amendment abolishing the poll tax. But the Framers themselves, including the authors of the original Federalist Papers, quickly formed national political parties to elect the members of their new federal government and to make it work. As Madison had predicted, these parties, while differing on broad lines of principle -- pro-federalist and anti-federalist -- included so many disparate groups with disparate interests that internal party discipline was weak and narrowly ideological majorities could not be formed. Jefferson's Democratic Republican party was deeply divided between Southern slave owners and the Northern urban/agrarian poor; Hamilton's Federalist party split into a "don't rock the boat" Whig Party and a radical anti-slavery Republican Party. The resulting gridlock resulted in the Civil War.
The Civil War could fairly be blamed in large part on the principal weakness of the original Constitution -- the entrenchment of slavery. This fault was corrected by the post-Civil War 13th, 14th, and 15th Amendments. They were adopted despite the difficulties the Amendment Article places in the way of an amendment, because the defeated states of the Confederacy had essentially been put into receivership under "carpetbagger" Reconstruction governments.
Today's right and left currently propose a number of other amendments. The right endeavors to require super-majorities to unbalance the budget or raise taxes, to set limits on the number of terms members of Congress can serve, to ban flag burning, to ban abortion, to protect school prayer and the public funding of religious schools, and most recently, Robert Bork's proposal to allow a mere Act of Congress to overturn Supreme Court decisions interpreting the Constitution. From the left, there are proposals to authorize limits on campaign expenditures, to guarantee a woman's freedom of choice, and, as discussed in Daniel Lazare's recent book, The Frozen Republic, to allow the House of Representatives, with the backing of a national referendum, to amend the Constitution -- e.g. to strike the provision creating two senators each for both large and small states, in favor of a population-based formula.
The authors devote a large portion of their book to marshaling the strong arguments against many of these proposals, as well as against the very idea of frequently amending the Constitution. The framers went out of their way to make it difficult to pass amendments, and they succeeded. After the first 10 amendments were adopted as the Bill of Rights immediately after the Constitution was ratified, we have been able to amend it only 17 more times during the succeeding two centuries, and we have never called another constitutional convention. Contrast this with the state constitutions, which are usually amendable by popular vote and by easily called constitutional conventions, with the result that most state constitutions have hundreds of articles and are hundreds of pages long.
The New Federalist Papers also make a convincing case against what Chief Justice Earl Warren used to call "junk amendments" that constitutionalize a temporal economic or social policy (e.g. Prohibition) that turns out to be unwise but extremely difficult to repeal. Many of the current proposals, of course, fall into this category.
Students, politicians, and the citizenry at large should all be grateful for these New Federalist Papers. They will help us to appreciate the basic values of our enduring Constitution -- the most significant political achievement in the long history of what the framers would have called "mankind." The fact that the baton of Madison, Hamilton and Jay has passed to a trio including Kathleen Sullivan tells us all we need to know about how adaptable our remarkable constitutional structure has turned out to be.