The Federalist (Nos. 1, 39 and 78) for Seekers

Dear reader — The Federalist gets quoted in courtrooms, op-eds and bar arguments as if it were the Constitution's instruction manual. It is 85 newspaper essays from 1787 and 1788, written by three men who wanted you to vote yes. This guide reads three of them, No. 1, No. 39 and No. 78, and separates what they say from what people say they say.

Everything factual is tagged in the full Study Guide as Settled, Disputed or Popular myth, with a source.

What The Federalist Actually Is

The Constitution came out of the Philadelphia convention in September 1787 and had to be approved by nine of thirteen states. New York was a hard sell. Alexander Hamilton organized a series of essays in the New York papers, signed "Publius," and got James Madison and John Jay to write the rest. No. 1, Hamilton's, ran on October 27, 1787. The whole series is advocacy. Opponents, the Anti-Federalists, wrote their own essays under names like "Brutus" and "Federal Farmer."

Historians still disagree about how much the essays changed anyone's vote. Some call them decisive, and others say they were widely printed but had limited reach outside New York. That is a Disputed claim, so you can't just state it as settled. Same for the bigger question: does the Federalist settle what the Constitution means? One side says it is the best evidence we have, since the authors were there and the public read it. The other says it is one side's brief, the ratifying conventions voted on the text and not the essays, and the authors disagreed with each other within a few years. Both get their best case in the full guide.

No. 1: The Pitch

Hamilton opens by asking whether people can set up a government on purpose: "whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." That is the stakes. If it works, it is proof that self-government is possible. If it fails, it is, in his words, "the general misfortune of mankind."

Three guys, one fake Roman name, 85 essays. The first group project where the pseudonym held up.

The line people forget is a warning that cuts both ways. Hamilton says that "a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government." In plain English, the person who flatters the public can be as dangerous as the person who wants a strong government. People on every side use that sentence against the other.

No. 39: What Kind Of Government Is This?

Opponents said the plan would either swallow the states or fall apart. Madison answers by checking the plan against two tests. First, is it republican? He defines a republic as "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." That rules out kings and hereditary nobles. It does not require everyone to be elected.

Is it national or federal? Madison's answer was "yes." The most quoted non-answer that also happens to be correct.

Second, is it national or federal? Madison says it depends on what you check, and concludes the Constitution is "neither a national nor a federal Constitution, but a composition of both." It was ratified by the people state by state, so its foundation is federal. The House is national, by population, and the Senate is federal, two per state. Federal laws act directly on individuals, which is national, but the government's powers are listed and limited, which is federal. Amendments need three-fourths of the states, which is neither. That description still works.

Quick myth check: "The United States is a republic, not a democracy." You'll hear it used as a slogan in arguments about majority rule. Under Madison's definitions a republic is a form of popular government, and No. 10 contrasts it with a "pure democracy," meaning people governing in person. His objection was to direct democracy and not to rule by the people. Today the country is usually called a representative democracy, and it is a republic too.

The question No. 39 leaves open is still live. Is the Constitution a compact among the states, or a government of the whole American people? Madison's own list says the foundation is federal. The Preamble says "We the People," and McCulloch v. Maryland (1819) said the government "proceeds directly from the people." Both sides get their best case in the full guide.

No. 78: The Courts

Opponents feared unelected judges serving for life would become a ruling class. Hamilton answered that the judiciary is the "least dangerous" branch, because it has neither the sword nor the purse. It "may truly be said to have neither FORCE nor WILL, but merely judgment." Then he makes the bigger claim. If a law conflicts with the Constitution, the Constitution wins: "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

Here is what the text of the Constitution does and does not say. It gives federal judges their offices "during good behavior," and it puts the Constitution above ordinary laws. It never says, in words, that courts can strike down acts of Congress. The Supreme Court first did that in Marbury v. Madison in 1803, with Chief Justice Marshall writing that "it is emphatically the province and duty of the judicial department to say what the law is." Whether the framers clearly meant it is Disputed. Hamilton plainly did, and the Anti-Federalist "Brutus" warned of that very power, but other founders, such as Jefferson, did not think it meant courts alone.

A small myth along the way: "Federal judges serve for life no matter what." They hold office during good behavior. They can be impeached by the House and removed by two-thirds of the Senate, and some have been.

The live argument is who has the last word. One side says the courts do: somebody has to settle it, judges are trained for it and protected from elections, and without a final arbiter rights depend on who holds power. The other side says each branch interprets the Constitution for itself, since all three swear to support it. Jefferson, Jackson and Lincoln each argued a version of that. Both get their best case in the full guide.

Where To Start

Read the key passage from each essay in full before you repeat what it says. Start with No. 39 if you want to understand how the system is built, and No. 78 if the courts are why you are here. Then read Federalist 10 and 51 for Madison on faction and on dividing power.