Bench Memos

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The Perennial Publius, part 39


Have you ever paused to think about how odd it is that we Americans casually refer to our central political entity alternately as the “national government” and the “federal government”? It is odd because neither phrase is really accurate, and before the Constitution was adopted they would have been considered opposites, or at least incompatible, and therefore impossible to use to refer to the same thing. But the habit of using both expressions as though they could refer to the same thing–indeed as though they meant the same thing–was begun by Publius himself in the Federalist. Both phrases appear repeatedly in the essays when he is speaking of the new government to be created over the whole Union.

Is this a calculated rhetorical strategy, intended to induce the reader to begin muddling together two things hitherto thought to be quite different? Maybe so. But part of the Constitution’s utter novelty is its combination of two political ideas–nation and confederation–that had previously been considered incapable of being mixed. And so it is striking to watch James Madison, in Federalist No. 39, blithely guide the reader on a tour of the Constitution’s features that make it here national and there federal. (Hamilton, in earlier essays, has already done the heavy lifting, undermining the reader’s allegiance to any strict conception of federalism, which makes this easier for Madison.) He concludes:

“The proposed constitution, therefore, . . . is in strictness neither a national nor a federal constitution, but a composition of both.”

And so began our habit of cheerfully mangling the language by calling our government by whichever adjective occurs to us first. As Alexis de Tocqueville was to say a half century later, the Americans have “a form of government that is neither precisely national nor federal; but one stops there, and the new word that ought to express the new thing still does not exist.”

It still doesn’t exist today. But there’s no need to make a federal case out of it.

(For explanation of this recurring feature, see here.)


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