Bench Memos

The Perennial Publius, part 41

Covering some of the same ground as was discussed by his partner Hamilton in earlier essays, Madison begins in Federalist No. 41 to review many of the major powers of the proposed new government under the Constitution.  Like Hamilton, he regards the “sum or quantity of power” to be given the government to be less important than its “particular structure,” or the arrangement of its institutions (see Federalist No. 23 for Hamilton’s similar argument).  But where Hamilton arranged his discussions of the Constitution’s grants of power around responses to prominent objections made by the opposition, negating those negations, Madison presents the straightforward positive case for those powers, analyzing them in their “different classes as they relate to . . . different objects,” the first of which is “security against foreign danger.”  And so, as though Hamilton had not already treated the subject in a half-dozen essays, Madison takes us back yet again to the power to establish a standing army.  If you begin to think this was a widespread preoccupation in those days, you wouldn’t be far wrong.

Such repetitions with slight variations lend some credence to “split-personality” readings of the Federalist that sprout up from time to time.  As scholars emphasize the differences between Hamilton and Madison, they sometimes exaggerate those differences in order to claim that even here, in the most famous of early expositions of the Constitution’s meaning by its framers, we can find significantly different understandings of the document, putting paid to any effort on our part to establish a unitary “original understanding” by which we might be guided today.  And it is true that within a few years, Hamilton and Madison (not to mention Jefferson, that Tommy-come-lately to the framers’ festivities) fell out in serious disputes over the Constitution’s meaning, leading opposing parties on issues of the government’s power over the national economy, and the president’s authority in foreign relations, to name just two large controversies.  These differences that emerged later do not mean that no correct (or at least more compelling and persuasive) case about the original understanding can be made.  Notably, the contending partisans certainly didn’t draw this anti-originalist conclusion themselves.

But the case for a Janus-faced Publius is unpersuasive anyway, whatever divided Madison from Hamilton in later years.  Here we have two men remarkably of one mind.  Consider just one passage from Madison’s No. 41, making an argument famously associated with Hamilton (see No. 23 again, as well as the jointly written No. 20), in words the latter might have employed himself:

“It is in vain to oppose constitutional barriers to the impulse of self-preservation.  It is worse than in vain; because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.”

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

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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