Alexander Hamilton and James Madison agreed in the Federalist that the Constitution authorizes both political and judicial processes to define and safeguard the boundaries of federalism, but disagreed on public opinion's role in a republic and how to cultivate public sentiment for the Constitution. Hamilton preferred resolving intergovernmental disputes via political and public processes because public endorsement would legitimize broad national powers. Madison favored building public sentiment for the Constitution through strict limits on the national government enforced in part by the judiciary. He thought resolving intergovernmental disputes via public processes would confirm widespread suspicions of imperium in imperio and might provoke a popular backlash that would upset the constitutional equilibrium and undermine even legitimate national powers. This difference foreshadows Hamilton and Madison's later constitutional disagreements, reveals fundamental ambiguities in America's federal system, and confirms the need to consider how institutions and policies affect public sentiment for the constitutional order.
1 The Federalist is criticized as a legitimate source for understanding the founders' thinking on the Constitution for three reasons: 1) Hamilton, Madison, and Jay are only three of the founders; 2) few people read the Federalist when first published and, even then, its impact on the ratification debates was minimal or nonexistent; 3) the Federalist is propaganda not constitutional exegesis, because its purpose was to convince the public to support ratification of the Constitution. Despite the pseudonym of “Publius,” some knew who wrote the Federalist or that the authors were members of the Constitutional Convention, according to Mason Alpheus Thomas, “The Federalist—A Split Personality,” American Historical Review 57 (1952): 630. Consequently Hamilton, and Madison had a responsibility to represent the ideas of the convention fairly rather than their own personal biases. Only where ambiguity existed were they free to insert their own opinion. If they had misrepresented the ideas, logic and theory of the Constitutional Convention, then their reputations and credibility would have been tarnished. Also, years after the Constitution's ratification, a number of founders praised the Federalist as an excellent explication of the Constitution, as reported by Dietze Gottfried, The Federalist: A Classic of Federalism and Free Government (Baltimore: The John Hopkins Press, 1960), 4–7. Finally, since scholars and justices often cite the Federalist to support their arguments, a thorough study of Publius's understanding of federalism should help to determine whether select quotes are used consistently or inconsistently with Publius's understanding. On this question, see also Banning Lance, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca and London: Cornell University Press, 1995), 396–402.
2 Banning, The Sacred Fire of Liberty, 396.
3 Adair Douglas, William & Mary Quarterly, 3rd Ser (1944): 97–122, 235–64; Mason, “The Federalist—A Split Personality”; Dietze, The Federalist.
4 Rossiter Clinton, Alexander Hamilton and the Constitution, (Harcourt, 1964); Wills Garry, Explaining America: The Federalist (New York: Doubleday & Company Inc, 1981); Diamond Martin, “The Federalist,” in History of Political Philosophy, 3rd ed., ed. Strauss Leo and Cropsey Joseph (Chicago: The University of Chicago Press, 1987); Elkins Stanley and McKitrick Eric, The Age of Federalism (New York: Oxford University Press, 1993); Carey George W., In Defense of the Constitution (Indianapolis: Liberty Fund, 1989); Sheehan Colleen A., “Madison v. Hamilton: The Battle over Republicanism and the Role of Public Opinion,” American Political Science Review 98, 3 (2004): 405–24; Levy Jacob T., “Beyond Publius: Montesquieu, Liberal Republicanism, and the Small-Republic Thesis,” History of Political Thought 27, 1 (2006): 50–90.
5 An excellent review of these ideas is Gibson Alan, “The Madisonian Madison and the Question of Consistency: The Significance and Challenge of Recent Research,” Review of Politics 64, 2 (2002): 311–38. McCoy Drew, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge: Cambridge University Press, 1989); Zuckert Michael, “Federalism and the Founding,” Review of Politics (1986): 166–210; Rakove Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996); Banning, The Sacred Fire of Liberty.
6 Sheehan, “Madison v. Hamilton,” 405–6.
7 This distinction between public opinion and public sentiment, although not obvious, can be found in Madison's writings; see his short brief “Public Opinion, 19 Dec. 1791” in James Madison: Writings (The Library of America, 1999), 500–501.
8 Corwin Edward S., “The Passing of Dual Federalism,” Virginia Law Review 36 (1950): 1; Zuckert “Federalism and the Founding”; Rakove Jack N., “The Origins of Judicial Review: A Plea for New Contexts,” Stanford Law Review 49, 5 (1997): 1031–64; Scheiber Harry N., “Federalism and the Constitution: The Original Understanding,” in American Law and the Constitutional Order: Historical Perspectives, ed. Friedman Lawrence M. and Scheiber Harry N. (Cambridge, MA: Harvard University Press, 1988), 85–98; Derthick Martha, “Congress, the States, and the Supreme Court,” in Keeping the Compound Republic (Washington, DC: Brookings Institution Press, 2001), 64–65.
9 Wechsler Herbert, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government,” Columbia Law Review 54, 4 (1954): 543–60; Choper Jesse H., Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980); Kramer Larry D., “Putting the Politics Back into the Political Safeguards of Federalism,” Columbia Law Review 100, 1 (2000): 215–93. For a good introduction to the political and judicial safeguards theories of federalism and their influence on contemporary government, politics, and policy, see Mitchell J. Pickerill and Clayton Cornell W., “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2, 2 (2004): 233–48.
10 All references to the Federalist are from Hamilton Alexander, Jay John, and Madison James, The Federalist Papers, ed. Rossiter Clinton (New York: Mentor Book, 1999).
11 Maintaining a viable federalism requires a “culture of federalism”; see Duchacek Ivo D., Comparative Federalism: The Territorial Dimension of Politics (New York: University Press of America, 1987), 343–44; Livingston William A., “A Note on the Nature of Federalism,” Political Science Quarterly 67 (1952): 84; and Elazar Daniel J., Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987), 192.
12 The Oxford English Dictionary defines magistrate as “A civil officer exercising local judicial power; a justice of the peace, a judge.”
13 Dietze, The Federalist, 260–64, 269, 271; Scheiber, “Federalism and the Constitution,” 91; Banning, The Sacred Fire of Liberty, 398–99; Rakove, Original Meanings.
14 Calhoun John C., A Disquisition on Government, ed. Cralle Richard K. (reprint, New York: Peter Smith, 1853); McDonald Forrest, States' Rights and the Union: Imperium in Imperio (Kansas: University Press of Kansas, 2000).
15 Hamilton refers to states' “pre-existing right of sovereignty” that cannot be alienated or extinguished by implication (no. 32:169).
16 Consistent with the argument of this paper, Karl-Friedrich Walling argues Hamilton “supported a strong, central government not an omnipotent and omnipresent central administration … not unlimited but effective government” where the division between national and state responsibilities is dependent on “time and circumstances,” Republican Empire: Alexander Hamilton on War and Free Government (Kansas: University Press of Kansas, 1999), 170–71.
17 Walling, Republican Empire, 15.
18 Hamilton Alexander, “An Opinion on the Constitutionality of an Act to Establish a Bank, Feb. 23, 1791,” in The Papers of Alexander Hamilton (New York: Columbia University Press, 1964), 8: 100–106.
19 Hamilton, “Letter to Jonathan Dayton, Oct.–Nov. 1799,” Papers, 23:603; McDonald Forrest, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Kansas: University Press of Kansas, 1985), 265. See also, Rosen Gary, American Compact: James Madison and the Problem of Founding (Kansas: University Press of Kansas, 1999), 148–49; Walling, Republican Empire, 162–67.
20 Banning, The Sacred Fire of Liberty, 332.
21 Brant Irving, James Madison, 6 volumes (Indianapolis, IN, 1941–1961); Beard Charles, An Economic Interpretation of the Constitution (New York, 1913); Diamond Martin, “What the Framers Meant by Federalism,” in As Far As Republican Principles Will Admit (Washington, DC: AEI Press, 1992), 108–43.
22 Diamond, “What the Framers Meant by Federalism,” 34.
23 Diamond, “What the Framers Meant by Federalism,” 38.
24 Banning, The Sacred Fire of Liberty, 204–14.
25 Banning, The Sacred Fire of Liberty, 191, 210.
26 Madison acknowledges the difficulty of clearly and specifically defining the powers that belong to the national and state governments in his article “Government of the United States, 6 February 1792,” James Madison: Writings, 508–9.
27 On this point, consider also Madison's speech in Congress against authorizing the creation of a national bank because “he took notice of the peculiar manner in which the federal government is limited. It is not a general grant, out of which particular powers are excepted—it is a grant of particular powers only, leaving the general mass in other hands. So it had been understood by its friends and its foes, and so it was to be interpreted.” From “Speech in Congress Opposing the National Bank, 2 Feb. 1791,” James Madison: Writings, 480–90.
28 Madison noted similar natural limitations to increasing the size of the House of Representatives. In no. 55, he explained that as more members are added to the House, the quality of legislation increases until at some point the chamber becomes unmanageable and the quality of legislation declines.
29 James Madison, “Consolidation, 5 December 1791,” James Madison: Writings, 498–500. Derthick uses Madison's argument to explain the growth of judicial power in “Up-to-Date in Kansas City,” Keeping the Compound Republic, 77.
30 For references to the problems of distant democracy, see Yarbrough Jean, “Republicanism Reconsidered: Some Thoughts on the Foundation and Preservation of the American Republic,” Review of Politics 41 (1979): 61–95; Zuckert Michael P., “A System without Precedent: Federalism in the American Constitution,” in The Framing and Ratification of the Constitution, ed. Levy Leonard W. and Mahoney Dennis J. (Macmillan Publishing Company, 1987), 132–50.
31 Sheehan, “Madison v. Hamilton,” 421.
32 I think that identity rather than proximity may more accurately describe what Hamilton was trying to explain with this variable. If one's identity is most closely tied to one's state, as it was at the time of the founding, then proximity would include one's identity. In an increasingly mobile society, however, one's identity may be more closely related to one's nation than the state where one resides. Thus, individual identity would more accurately explain where one's loyalty will fall in an intergovernmental dispute than proximity.
33 The four reasons mentioned by Hamilton are as follows:
1) national elections will provide more choices to the people;
2) state legislatures will likely select the best people to serve in the U.S. Senate;
3) national councils will likely have more knowledge and information than state councils;
4) the spirit of faction will likely be reduced on the national level.
34 Scheiber, “Federalism and the Constitution,” 95, notes that Hamilton thinks public loyalty may be turned to the national government due to effective administration, but he does not recognize how important that idea is to Hamilton's thinking.
35 Hamilton, “Letter to Jonathan Dayton, Oct.–Nov., 1799,” Papers, 23:601.
36 Kramer, “Putting the Politics Back Into the Political Safeguards of Federalism,” 265, quotes Hamilton at the New York Ratifying Convention as saying the states will have a natural superiority over the national government, but Kramer misses that this comment is conditioned by Hamilton's later comment at the convention that the “true touchstone” of “public confidence” is “good administration” (271). There, as in no. 17, Hamilton is being subtle. He acknowledges that the states possess certain advantages over the federal government, but then carefully slips in the proviso that any such advantage may be undermined by the national government's better administration.
37 Banning, Sacred Fire of Liberty, 398, suggests that Madison was probably uneasy with certain of Hamilton's passages in no. 27 that implied the “central government should intrude increasingly and comprehensively into ‘matters of internal concern.’”
38 Madison's localism bias does not accurately reflect modern politics. Constitutional amendments and operating conventions have undermined the role of state government in these electoral processes.
39 For example, Levy, “Beyond Publius,” cites no. 17 as evidence that “at several points in the work, Publius's argument depends upon the greater affection or sympathy the people will naturally feel for the states than for the federal government … The Federalist builds loyalty to the states into the constitutional structure.”
40 Banning, The Sacred Fire of Liberty, 332.
41 Carey, In Defense of the Constitution, 2.
42 Walling, Republican Empire, 15.
43 Walling, Republican Empire, 172.
44 In a 1790 letter, John Jay advised his good friend Hamilton to pursue this course of action. Jay wrote: “The national Govt. has only to do what is right and if possible be silent. If compelled to speake, it shd be in few words strongly evincive of Temper, Dignity and self Respect. Conversation and desultory paragraphs will do the rest,” Papers of Alexander Hamilton, 28 Nov. 1790, 7:167.
45 Banning, The Sacred Fire of Liberty; Wills, Explaining America.
46 James Madison, “Public Opinion, 19 Dec. 1791,” James Madison: Writings, 500–501.
47 Gary Rosen, American Compact, 113, disagrees with this perspective. After a brilliant discussion of Madison's ideas on the need for founders with prudence, Rosen claims Madison discounts the need for elites with political prudence after the founding because representatives should take direction from public opinion. This claim suggests that Madison considered the constitutional order to be self-sustaining, requiring neither maintenance nor protection from factional interests or nonprudential do-gooders. Extrapolating from Rosen, Madison would support political safeguards of federalism and the public's role in those safeguards (Kramer develops just this idea in “Putting the Politics Back into the Political Safeguards of Federalism”).
48 In a letter to Jefferson on 4 Feb. 1790, Madison addresses Jefferson's argument that laws should not be binding on future generations. Madison strongly disagrees with this claim if by “law” Jefferson includes constitutions, but is less opposed if “law” refers to legislative acts. In other words, a popular majority should not alter the Constitution. James Madison, “Letter to Jefferson, 4 Feb. 1790,” James Madison: Writings, 473–77.
49 Some might see no. 10's republican remedy for the republican disease as a counterargument. However, the Constitution's remedy of an extended republic requires a federal system of government where the national government is limited to issues that concern the entire nation. This is because if the national government handles local issues unfavorably then the Constitution's localism bias would eventually prevail over national institutions and impair national power and authority. Madison's best hope to minimize the localism bias was to have the general government deal with general issues and the local government deal with local issues (39:213).
50 Sheehan, “Madison v. Hamilton,” emphasizes Madison's interest in making government policy reflect public opinion. I think much of her evidence regarding Madison's concern with public opinion refers to cultivating positive public sentiment for the constitutional order and maintaining that order against unconstitutional majority desires. Madison's elites are not always about educating the people; on fundamental constitutional questions, they are to decide without involving the public but in accordance with the Constitution and with an eye to sustaining public sentiment for the constitutional order. Madison's opposition to popular participation is particularly evident in the Federalist, nos. 49 and 50.
51 No. 51: “The different governments [national and state] will control each other, at the same time that each will be controlled by itself.” James Madison, “Government of the United States, 6 Feb. 1792,” James Madison: Writings, 508–9: “And as in a single government these departments [legislative, executive, and judicial] are to be kept separate and safe, by a defensive armour for each; so, it is to be hoped, do the [national and state] governments possess each the means of preventing or correcting unconstitutional encroachments of the other.”
52 Walling, Republican Empire, 156–61, suggests that John Jay, the third author of the Federalist, also must have supported judicial review.
53 Keith Whittington, “Judicial Review of Congress before the Civil War,” paper delivered at the Western Political Association Conference in Las Vegas, Nevada, March, 8–10, 2007.
54 Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (New Haven: Yale University Press, 1997), 60, 70, 76, 111–12.
55 This proposal was made by Charles Pinckney of South Carolina who had originally proposed giving the national government a veto of state laws, which Madison seconded, see Farrand Max, ed., The Records of the Federal Convention of 1787, vol. 2, (Massachusetts: The Murray Printing Co., 1966), 334, 342.
56 Jay, Most Humble Servants, 227.
57 Jay, Most Humble Servants, 111–48
58 In no. 73, Hamilton favorably mentions that the veto in New York is vested in a council of the governor, chancellor and judges of the Supreme Court, “or any two of them.” However, in the next paragraph he provides two “strong reasons” against involving the justices in a veto council. This passage is often used to suggest Hamilton opposed advisory opinions. Such a conclusion is suspect for three reasons. First, that Hamilton may have preferred some advisory role for justices is indicated by the preceding paragraph's positive view of New York's provision involving the state's highest court in veto decisions. Second, the passage refers to a veto council that unites the governor and Supreme Court and whose decisions have more weight than simple judicial advisory opinions. Third, Hamilton does not claim he agrees with these two reasons only that they bear consideration.
59 No. 16 refers specifically to the Supreme Court declaring state laws unconstitutional. This is consistent with Hamilton's desire to read the Constitution broadly, enhance the national government's powers, and limit the states. I think it wrong to imply from this that Hamilton limits judicial review to state laws as no. 78, which follows the same logic as no. 16, justifies judicial review of state and national laws.
60 Wechsler, “The Political Safeguards of Federalism”; Kramer, “Putting the Politics Back Into the Politics of Federalism.”
61 Diamond Martin, The Founding of the Democratic Republic (Illinois: F. E. Peacock Publishers, Inc., 1981), 137.
62 Farrand, The Records of the Federal Convention of 1787, 3: 424.
63 Farrand, Records of the Federal Convention, 2: 76–80.
64 Kramer misses Madison's clear reference to judicial review in no. 39 and hence misunderstands Madison's reference to judicial review in no. 44, which, he suggests, is to Blackstone's tenth rule of statutory construction (see Kramer, “Putting the Political Safeguards Back …” ns. 92 and 167). Acknowledging that Madison may be referring to judicial review in no. 44, he trivializes it by claiming that Madison gives it “little emphasis” (n. 167). Madison references the judiciary's responsibility again at the beginning of no. 45 when he writes, “Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments.” One concern is the judiciary. Rather than covering the same ground in this essay, he is moving on to the subject of the political safeguards of federalism.
65 James Madison, “Letter to Jefferson, 27 June 1823,” James Madison: Writings, 798–802.
66 Lenner Andrew C., “John Taylor and the Origins of American Federalism,” Journal of the Early Republic (1997), 404.
67 James Madison, “Letter to Edward Everett, 28 August 1830,” James Madison: Writings, 842–52. Wechsler, “The Political Safeguards of Federalism,” 558–59, claims the 1830 letter to Everett proves Madison did not favor judicial review, but the letter actually shows Madison's strong support for judicial and political safeguards of federalism.
68 Walling, Republican Empire, 14–15.
69 This is consistent with how Madison explained the Virginia Resolve in his 28 Aug. 1830 letter to Edward Everett, James Madison: Writings, 842–52; of note in that letter is Madison's effort to distinguish the Virginia Resolve from the Kentucky Resolve, which supported nullification.
70 James Madison, “Report on the Alien and Sedition Acts, January 7, 1800,” James Madison: Writings, 608–62. See Banning, The Sacred Fire of Liberty, 389–93.
71 Derthick Martha, “The Paradox of the Middle Tier,” in Keeping the Compound Republic: Essays on American Federalism (Washington, DC: Brookings Institution Press, 2001), 49–55; Walker David B., The Rebirth of American Federalism (New York: Chatham House Publishers, 2000), 325.
72 Troy E. Smith, “Intergovernmental Lobbying in the 21st Century,” Intergovernmental Management for the 21st Century, ed. Paul L. Posner and Timothy J. Conlan (Washington, DC: Brookings Institution Press, forthcoming). In Madison's 1830 letter to Everett, Madison appears to have realized the ineffectiveness of state governments collective actions and uses this as a reason to justify judicial review of the boundary between the national and state governments, James Madison: Writings, 842–52.
73 Eugene C., Gramlich Edward M., Heclo Hugh, and Nightingale Demetra Smith, The Government We Deserve: Responsive Democracy and Changing Expectations (Washington, DC: Urban Institute Press, 1998), 95–96.
74 Ann O'M. Bowman and George A. Krause, “Power Shift: Measuring Policy Centralization in U.S. Intergovernmental Relations, 1947–1998,” American Politics Research 31, 3 (2003).
75 Martha Derthick, “The Paradox of the Middle Tier,” 46–49.
76 Elazar Daniel J., “Federalism,” in Federalism in America: An Encyclopedia, ed. Marbach Joseph R., Katz Ellis, and Smith Troy E. (Connecticut: Greenwood Press, 2006), 230–34.
77 Elazar, “Federalism.”
78 Lance Banning, The Sacred Fire of Liberty, 134–35, 398, notes that Madison's concerns with judicial review were less about judicial review and more about judicial supremacy.
79 Rogers James R. and Vanberg Georg, “Judicial Advisory Opinions and Legislative Outcomes in Comparative Perspective,” American Journal of Political Science 46, 2 (2002): 394.
80 Ehrenhalt Alan, The United States of Ambition: Politicians, Power and the Pursuit of Office (New York: Times Books, 1991).
81 Nathan Richard, “Federalism—The Great ‘Composition,’” in The New American Political System, ed. by King Anthony, (Washington, DC: American Enterprise Institute, 1990), 231–61; Rockefeller Institute Bulletin, “Devolution in the Polls: Long-Term Shift in Public Opinion/chapter-title>,” (Albany, New York: The Nelson A. Rockefeller Institute of Government, 1996), 14–16.
82 Cole Richard L., Kincaid John, and Rodriguez Alejandro, “Public Opinion on Federalism and Federal Political Culture in Canada, Mexico, and the United States, 2004,” Publius 34, 4 (2004), 201–25.
83 See Pietro S. Nivola, “Making Sense of Subsidiarity: Why Federalism Matters,” presented at the 2005 American Political Science Association Conference, (Washington, DC, Sept. 2).
The author would like to thank Michael J. Malbin, Victoria Farrar-Myers, Paul C. Peterson, Randal Allred, Stephen L. Wasby, and the anonymous reviewers for their valuable comments on this paper.
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