Federalist No. 78, Part VII: Implication

Before concluding this essay series on Federalist No. 78, it remains to explore just a few more points of discussion. While these forthcoming topics don’t necessarily fit into any of the themes that have been covered thus far – context, pragmatism, or precedent – they are, I feel, too interesting or too significant to simply gloss over. As a result – and as ever I beg the indulgence of my dear, precious readers – what comes next will most definitely lack the structural consistency which I flatter myself in thinking that I normally maintain. Call this section a “one more thing” if you like. Indeed, perhaps I should have.

Anyway, let’s get on with it.

At a point around the middle of No. 78 – in paragraphs ten, eleven, and twelve, to be exact – Hamilton deployed a justification for subordinating Congress to the terms of the proposed constitution which in itself potentially reveals an attempt on his part to provide ideological justification for a distinctly strategic choice made by the Framers. What in God’s name is that supposed to mean, I hear you ask? Well, before I fully explain, I ask you to please consider the following. In the first instance (paragraph ten), Hamilton argued that to deny the superiority of the Constitution to a mere Act of Congress would in effect affirm, “That the Representatives of the People are superior to the People themselves [.]” In the second (paragraph eleven), he declared that in all cases, “The Constitution ought to be preferred to the statute; the intention of the People to the intention of their agents.” And in the third (paragraph twelve) he affirmed, “That where the will of the Legislature, declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the former.” In each of these cases, it should be noted, Hamilton clearly sought to establish a strong rhetorical relationship between the proposed constitution and “the People” of the United States of America. At the same time, he also seemed intent on erecting a kind of conceptual barrier between the general population and their representatives in Congress. A given congressional statute, Hamilton seemed willing to admit, could fairly be said to embody the aggregate will of “the People” at a particular moment in time, but not in the same way that he seemed determined to ascribe to the Constitution.

In short, this position boils down to the perception of a difference in quality or legitimacy between everyday laws that are passed by men chosen by their constituents for that purpose and a superseding fundamental law that was approved by the voters themselves. The act of delegation inherent in allowing Representatives and Senators to draft and approve laws in the place of their constituents, by Hamilton’s evident reckoning, made all the difference. Figuratively speaking, the hands of “the People” had touched the supreme governing document – i.e. the Constitution – in a way that could not be said of an act of Congress. This proximity lent greater legitimacy – not unlike rules of inheritance that prioritize closeness of relation to a shared ancestor – and thus made the Constitution the legally superior authority. In deference to Hamilton, it was almost certainly a very wise choice on his part to pursue this particular line of argument. “The People,” in the context of the American Revolution and its immediate aftermath, was an exceptionally powerful socio-political concept. As the sole inalienable source of authority in both the British parliamentary and 18^th century republican models of government, the explicit will of the general population could theoretically authorize or reject any action, and erect or tear down any administrative institution. By unambiguously harnessing “the People” to the proposed Constitution, therefore, Hamilton made it that much harder for his opponents to decry those aspects of the document with which they found fault. No one could claim, however valid or well-reasoned their complaints, that their particular sense of discretion was superior to the will of “the People,” and the Constitution was that embodied.

Sort of…

As with so many topics that have been discussed over the course of this series, the gloss that Hamilton put on the relationship between the American people and the Constitution – a characterization upon which he based no small portion of his argument in Federalist No. 78 – was more complicated than he made it seem. Recall, for instance, that in spite of Hamilton’s insistence that the will of “the People” was “declared in the Constitution,” the document itself was in fact drafted by a relatively small number of delegates (fifty-five) dispatched to Philadelphia from twelve of the thirteen extant states. Some, like Pennsylvania or Virginia, sent fairly large contingents – eight and seven, respectively – while others like New Hampshire (two) and New York (three) were comparatively underrepresented. It is also worth noting that none of these selfsame delegates were elected by the general population of their state – rather, they were selected and commissioned by the legislatures of the same. Consider, as well, that none of the states submitted the proposed constitution for public consideration in the form of a popular referendum. Instead, in keeping with the Framers’ express recommendation, the document was considered and adopted by delegates elected to a series of state conventions called specifically for that purpose. As with the delegations originally sent to Philadelphia, some of these state conventions were fairly small – Delaware, for example, elected only thirty men to the task, while Georgia sufficed with twenty-six – while others were substantially larger – the people of South Carolina elected two hundred and seventy-one delegates, but still less than the three hundred and fifty-five of Massachusetts – than the existing Continental Congress.

Taking these facts in hand, Hamilton’s assertion that the fully-ratified and accepted Constitution would in effect represent the express will of the American people would seem to be something of an oversimplification. On the basis of distance from “the hand of the people” – as a measure of fundamental legitimacy discussed above – the United States Constitution would seem to possess no greater legitimacy than any Act of Congress. The general population had about as much to do with one as the other, and in both cases delegated their sovereign authority to elected representatives. Indeed, when one takes into account the manner by which the states originally sent delegates to Philadelphia in 1787, the figurative distance between “the People” and the Constitution is even greater than between the former and any statute passed by Congress. Federal laws were to be drafted in part by Representatives that the voters of a given district chose themselves; the Constitution was drafted by delegates that were commissioned by state legislators, which were in turn elected by the voting public of the relevant jurisdiction. That the former included an extra step or filter between the American people and the final draft of the Constitution – i.e. the state legislatures – would seem to give the lie to Hamilton’s stated understanding that said document more closely embodied the popular will than an everyday Congressional statute.

Of course Hamilton was aware of these facts. To be otherwise wold have required a degree of wilful ignorance on his part. Having labored along with his fellow delegates for four months in the heat of a sweltering Philadelphia summer in 1787, he need only have cast his gaze around the interior of the Pennsylvania State House to know for certain that “the People” were hardly in evidence. And yet, his position in Federalist No. 78 – that the Constitution better represented the will of the general population than a given law passed by Congress – was not wholly without merit. Having possessed some knowledge of the basic dimensions of the proposed federal government, Hamilton would have been aware that the first meeting of the newly-reconstituted United States Congress would have been host to something less than one hundred total members. Within that number, though every state would be entitled to two Senators, some possessed population enough for only a single Representative (like Delaware or Rhode Island) while others stood to elect as many as six (New York and Maryland), eight (Pennsylvania and Massachusetts), or ten (Virginia). In consequence, a statute passed by Congress would require the approval of fourteen Senators and between twenty-nine and thirty-three Representatives – forty-three to forty-seven men, all told – in order to become law.

By comparison, from the selection of delegates to the final vote for ratification, the drafting and approval of the Constitution involved in some fashion or other the discretion or input of every state legislature – easily several hundred men, if not over one thousand – the knowledge and expertise of the fifty-five delegates in attendance at Philadelphia, the approval of the members of the contemporary Continental Congress, and the consideration of the combined attendees – all one thousand six hundred and forty-eight of them – of every state convention. Therefore, though he absolutely did not have access to all of these figures, Hamilton was nevertheless correct in his assertion that the approved Constitution would enjoy the effective sanction – or at least reflect in some way the input – of a far greater number of American citizens than any Act of Congress. This was true in the details as well as the broad strokes. More Delawareans – by a margin of thirty-five to three – would have a hand in the Constitution than in a given Congressional statute; more Georgians, as well, and New Yorkers, and Virginians. Not only was this an accurate assessment in 1788, when Hamilton originally made his case, but it remains true in 2017. The current membership of Congress, at five hundred and thirty-five, is still easily outstripped by the upwards of two thousand people who in some way gave their approval to and facilitated the adoption of the United States Constitution. While admitting once more that the truth was somewhat more complicated than he made it out to be, it would nonetheless seem fair to credit Hamilton for correctly describing the soon-to-be supreme governing document of the United States as better reflecting the will of “the People” than any law to be passed by Congress.       

All that being said, the logic behind Hamilton’s rhetorical association of the proposed constitution with “the People” was almost certainly of a more cynical nature, and as noted above likely reflected a strategic choice on the part of the Framers. Consider, as evidence that the authors of the Constitution were not solely concerned with their creation receiving the widest sanction possible, that they did not request that the various states submit the document to a popular referendum. While an uncommon practice in the 18^th century United States – mainly for logistical reasons – such a direct resort to the general population was not wholly unheard of. Rhode Island, for instance, submitted the finished draft of the proposed federal constitution to the people of the Ocean State – who promptly rejected it – rather than move straight to a ratifying convention in the early months of 1788. And several years earlier, Massachusetts had likewise submitted its proposed 1778 constitution – which failed to pass muster – and a revised attempt in 1780 – which succeeded – to the consideration of its citizens. Therefore, though it would have entailed a significant outlay of time, resources, and manpower, the notion of scheduling a series of state referenda on the merits of the proposed constitution would not have been beyond the realm of possibility. While the results may not have been swiftly calculated, there could seemingly be no question that they would represent the unequivocal opinion of the American people. 

That the Framers instead recommended the calling of a series of ratifying conventions would thus seem to speak to a less obvious motivation than a desire for their work to be widely considered and (hopefully) widely approved. Taking into consideration the experiences and writings of men like Hamilton, James Madison, James Wilson, and even George Washington – Framers, all – in the 1770s and 1780s, two conclusions would seem to suggest themselves on that score. First, it seems likely that the majority of the Framers did not trust the state legislatures to approve the proposed constitution on their own. To do so would surely have been the simplest method of reviewing said document, and may in fact have acted as something of a salve to the various state governments whose members surely did not relish the thought of transferring some portion of their authority to a strong central government. That being said, where jealous state functionaries didn’t reject out of hand the loss of autonomy embodied by the proposed constitution, any discussion of the relative merits of thereof might easily have devolved into yet another chapter in the ongoing partisan warfare all too common to the various American states in the post-independence 1780s.

Madison, Wilson, and Hamilton had all borne witness to the factional acrimony that often plagued the legislative process during their service in the state assemblies of Virginia, Pennsylvania, and New York, respectively, and were doubtless eager to avoid having their proposal for a more effective national government become entangled in the same. Washington, meanwhile, had seen for himself how destructive partisan conflict within individual states could become to the broader national interest during his time as Commander-in-Chief of the Continental Army from 1776 to 1783. More than once, with the assistance of his aide-de-camp Alexander Hamilton, he had been forced to wrangle for supplies, arms, and manpower with governors and state assemblies who seemed more concerned with their own internal disagreements than their responsibilities to the broader campaign for American independence. Doubtless Washington – in the late 1780s by far the single most popular man in America – was similarly keen to avoid involving the state governments in the question of whether or not to approve the proposed constitution. Thus, it seemed, having selected delegates to attend the Philadelphia Convention in the spring of 1787, the role of the state legislatures in the process of drafting and approving the Constitution had substantively come to a close.

The second conclusion that comes to mind as to why the Framers preferred to submit the proposed constitution to a series of state conventions rather than to the people at large or to the state legislatures is rather more insidious than the first, though no less likely. Whereas the majority of the contemporary state constitutions had been drafted and approved by the relevant legislature, thus making them alterable by said legislature on the same terms as any normal act of law, assembling a special convention in every state for the purpose of approving the proposed constitution effectively placed the resulting document beyond the reach of any existing institutions. Unlike the New York General Assembly or the Massachusetts General Court, which were perpetual bodies, the ratifying conventions were entirely contingent. As per the instructions submitted by the Framers to the Continental Congress in 1787, their members were to be elected, to assemble, to consider the proposed constitution, to vote on it, and then to disperse. Delegates were to be chosen by rules determined by the individual states – many chose to relax their franchise restrictions so that more than just property owners could vote and stand for election – and once dispersed were never expected to meet again. Indeed, no mechanism existed that would allow them to do so – neither the Constitution nor the various state governments recognized their existence, and doubtless the supporters of ratification would have cried foul if their opponents attempted to re-assemble the conventions for the purpose of offering revisions or amendments.

By enforcing these terms upon the various states – ratification through one-off conventions – the Framers effectively created what every political strategist at some point or another dreams of: a temporary constituency. Unlike the general public – whose memory was either too long or too short for comfort – or the state legislatures – whose priorities were very much their own – the state conventions would have no institutional history, no set agenda, and no ability to second guess or revoke their decisions once they had been made. While it was unavoidable that some of their members would come from among the existing political classes – many state lawmakers, current and former members of the Continental Congress, and state jurists were elected to the various state conventions – they were more likely to be non-partisan affairs than the existing state assemblies, and more likely to count politically inexperienced farmers, merchants, and small business owners among their numbers. Such a varied composition made these ad-hoc assemblies more likely to consider the proposed constitution on its own merits and less likely to become bogged down by discussions that were of sole significance to local political circles. Most important of all, however, was their temporary nature.

Once the conventions had rendered their collective verdict on the proposed constitution and voted to adjourn, there existed no formal means by which they might be resurrected. As per the directions formulated by the Framers, these contingent entities could only vote for their Constitution or against it. Having recorded their vote, they effectively ceased to exist, and in a legal sense ceased to possess any further authority or legitimacy. This was true whether the requisite nine states chose to ratify the draft document or not, and in the event of the former left no opportunity for any further input into the disposition of the newly-reconstituted national government. Having been approved, the text of the Constitution itself – Article V, to be precise – provided the only means by which the American people could seek to alter their supreme governing document. The state conventions, as it happened, were to play no part in the process that was laid out therein, and were thereby to be entirely cast aside once their purpose had been fulfilled. This, more than the size or the political sensibilities of their membership, was doubtless what the Framers most favoured about the ratifying conventions. They were, by their nature, ephemeral. They were also mildly extralegal, possessing no further authorization than the instructions sent to the Continental Congress and to the states by the Philadelphia Convention. They existed to suit the exigency of the moment and were thereafter of no consequence.

For Alexander Hamilton and his fellow advocates of the proposed constitution, this fact presented a tremendous advantage. Provided that the majority of the state conventions voted to approve, further alterations to said document could only come via the aforementioned mechanism spelled out therein. The result was like some sort of political magic trick. Before ratification, the state conventions possessed the collective authority to create to dismiss a tremendously powerful central government. After ratification – with a puff of smoke and a muttered incantation – the conventions were rendered meaningless. Not only would they cease to exist, but even the means by which they were summoned into existence would cease to be valid. Thus freed from having to continually appease or thwart the evolving concerns of a collection of thirteen elected bodies – a freedom which could not have been claimed had the state legislatures been allowed the privilege of reviewing the Constitution – the proponents of the new national government had only to contend with the codified amending formula that many of them had personally helped draft. In addition to representing an exceedingly shrewd and effective form of legal bait-and-switch – i.e. the Framers created a set of rules that favored their goals and then convinced their fellow countrymen to play by them – this outcome arguably permitted people like Hamilton to freely indulge in the rhetorical association of the Constitution and “the People.”    

Of course, in the aftermath of the approval of the proposed constitution, the members of the various state ratifying conventions would know who they were. More than likely their neighbors would know as well, having recently voted for them, and barring any unforeseen accidents it was likely that most of them would live for a number of years beyond their brief terms of service. All this being true, however, did not make it possible for the conventions to be reconvened. Their task having been completed, the delegates therein would be once more subsumed into the general population. In consequence, and because neither state law nor the Constitution recognized their office, there was no more exact way to refer to the ratifying conventions in perpetuity than by acclaiming them as “the People” of the United States. Thus, without making any claims that were wholly or explicitly false, Hamilton could define the Constitution in Federalist No. 78 as “the will of the People,” “the intention of the People,” and the legal embodiment of “the People themselves.” This, too, suited Hamilton’s momentary goal of setting the document in question against the authority of the proposed federal legislature – and thereby carving out a space for the judiciary in the federal balance of power. That being said, it also indisputably belied the far more complex relationship that existed – and would come to exist – between the American people, the states, and the federal government.