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FIFTEEN CURIOUS FACTS ABOUT
The Federalist Papers
By University Professor and J. Alton Hosch Professor Dan T. Coenen, who recently published The STory of The Federalist : how hamilTon and madiSon reconceived america (Twelve Tables Press)
ost of us have learned a
bit about The Federalist
Papers at some point
along the way. We may recall the papers
were a series of essays written by Alexander
Hamilton, James Madison and John Jay,
under the pen name “Publius,” to promote ratification of the
Constitution. Probably, however, we remember little more.
In fact, these three great statesmen crafted 85 essays in the
wake of the Philadelphia Convention.
These writings, which were first printed in a period that
spanned October 1787 through May 1788, ranged across
many subjects.
They addressed broad concepts, such as the importance of the
separation of powers, the nature of federalism and the built-
in safeguards against majority oppression generated by large
republics.
They also dealt with discrete issues, including the most suit-
able terms of office for House members and presidents, and the
proper allocation of state and federal responsibilities for oversee-
ing the local militia.
In essence, while the Constitution set forth a series of rules,
The Federalist Papers provided an exposition of reasons for
those rules the framers had endorsed in our national charter.
It is difficult to overstate the significance of the essays.
Thomas Jefferson deemed them “the best commentary on
the principles of government which was ever written.” And
throughout American history, the tracts have provided a criti-
cal starting point of discussion – among lawyers, among judges,
and in general public discourse – about the meaning of our
Constitution.
I have addressed the content of the papers – as well as the
historical context in which they were written and their post-
publication legacy – in a recently published book.
M
Here, my ambitions are more limited. I offer a
simple listing of 15 curiosities about The Federalist
Papers :
1. To begin with, The Federalist Papers is
a misnomer, though many modern collec-
tions of the essays carry that title.
In fact, the essays were written for publication in New York newspapers, and those newspapers did not identify the essays as The Federalist Papers. Rather, the essays were preceded by headings that read “The Federalist, No. 1,” “The Federalist, No. 2,” etc. During 1788, two book volumes that collected the essays appeared. (The first volume, published on March 22, 1788, included Nos. 1 through 36; the second volume, published on May 28, 1788, included Nos. 37 through 85.) These books were titled simply The Federalist. In short, Hamilton, Madison and Jay wrote The Federalist ; they did not write The Federalist Papers.
2. In addition, Hamilton, Madison and Jay
actually wrote only 84 essays, not 85.
So why do modern books reproduce 85 tracts? The reason is that, when the first book volume appeared, the publisher (with Hamilton’s concurrence) split the lengthy 31st newspaper essay into two separate free- standing pieces and renumbered the essays accordingly. The book publisher also relocated the 29th newspa- per essay to a position following the 34th newspaper essay, apparently to create a more logical sequence in the treatment of subjects. The result of these moves is that the numbers assigned to the essays in both early and modern book publications do not match the numbers assigned to exactly the same essays as originally published in New York newspapers.
3. While John Jay is rightly identified as
one of the authors of The Federalist , his
contributions were very limited.
In particular, after Hamilton penned No. 1, Jay wrote Nos. 2 through 5. Then, he fell seriously ill, and thereaf- ter he produced only one more Federalist essay, No. 64, which was printed on March 5, 1788. Following the distribution of this tract, Jay may have failed to contribute anything more in part because he took a hit from a brick during a New York street riot in early April 1788. The blow was so serious, according to Jay’s wife, that it put “two large holes in his forehead.” Whatever the reasons for Jay’s limited role in the Federalist project, Professor Jacob E. Cooke – the most influential modern scholar of the essays – has written that “an accurate title page of The Federalist should attribute authorship to ‘Alexander Hamilton and James Madison, with the assistance of John Jay.’”
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following the Constitutional Convention as Hamilton contemplated potential collaborators. It is telling, in this regard, that Madison returned to Virginia fol- lowing the printing of his essay No. 63 on March 1, 1788, and there- after made no further contributions to the essay-writing project. (It is also noteworthy that the location of the national capital in New York contributed to that state’s eventual, begrudging ratification of the Constitution. Even the keenest antifederalist ratification con- vention delegates knew, after all, that New York’s failure to approve the Constitution would ensure relocation of the nation’s capital to another state.)
10. Citation to The Federalist in U.S. Supreme
Court opinions has mushroomed in recent years,
as demonstrated by the following table, which
reports the number of cases that have generated
mention of The Federalist by the justices on a
decade-by-decade basis:
It is unclear why this pattern has emerged. One possibility is that the recent appointment of so-called “origi- nalists” – particularly Justices Antonin Scalia and Clarence Thomas
- to the Supreme Court has kindled a heightened interest in The Federalist. On the other hand, citations to the essays began to swell long before the Scalia and Thomas appointments, and one study suggests
the “[i]deology and interpretive approach have little bearing on how often a justice appeals to the essays” because “John Paul Stevens, Sandra Day O’Connor and Antonin Scalia are all among the heaviest users.” An increase in the overall num- ber of Supreme Court decisions also does not explain the dramatic rise in references to The Federalist because the number of Supreme Court decisions in argued cases in fact has diminished sharply in recent years – from 175 in 1983 to 73 in 2003. In the end, we are left to speculate why citations to The Federalist have appeared with much-increased frequency in the writings of the justices over the past eight decades.
11. What are the most-cited of the essays? The Federalist No. 78 (which deals with judicial powers, including the power of judicial review) recently passed No. 42 (which focuses on non-military congressional powers, including the power to regu- late interstate commerce) as the paper that has found its way most often into written opinions of the justices. (Thirty-seven opinions cite No. 78; 34 opinions cite No. 42.) The most studied of the papers among modern scholars is no doubt No. 10, in which Madison discusses interest groups, or “fac- tions,” and argues their self-serving behavior gives rise to a greater risk of tyrannical majority behavior in small republics than in large ones. Despite its fame and importance, No. 10 was never cited in a Supreme Court opinion until 1974. Since then, however, citations to it have come in 14 cases, making it the fourth most-cited of the essays during that time frame. 12. Citation to The Federalist is not limited to
judicial opinions. For example, in 2004 alone, 821
law review articles and notes made reference to at
least one of the essays.
Additionally, following President George W. Bush’s appointment of John G. Roberts Jr. to the U.S. Supreme Court, there were eight separate comments on the essays – made by either then-Judge Roberts or Senate committee members – during the nationally tele- vised confirmation hearings.
13. The modern canonic significance of The
Federalist was hardly foreseeable by the three
authors themselves, particularly because their
immediate task involved churning out what were
in effect newspaper editorials – and doing so at a
breakneck pace.
Especially impressive is the fact that Hamilton appears to have
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written his 51 essays (which occupy 352 pages in the leading modern book edition) entirely on the side while maintaining a full-time law practice and while also serving as New York’s elected delegate to the federal Congress during a period in which about half his essays were written. In later years, Madison wrote of the extraordinary time pressures under which the essays were composed. There was, he reported, “sel- dom … time for even a perusal of the pieces by any but the writer before they were wanted at the press, and sometimes hardly by the writer himself.” He added that sometimes, even “whilst the printer was putting into type parts of a number, the following parts were under the pen.” Chancellor James Kent would later praise The Federalist for “the sagacity of its reflections, and the … elegance with which its truths are uttered and recommended.” Hamilton had a different view. In the preface to the first book vol- ume, he observed that “[t]he particular circumstances under which these papers have been written, have rendered it impracticable to avoid violations of method and repetitions of ideas which cannot but displease the critical reader.”
14. It is generally assumed the essays of Hamilton,
Madison and Jay played a prominent role in the
ratification struggle throughout the 13 states. This
is not true.
The essays themselves were addressed “To the People of the State of New York,” and they were published in their entirety solely in New York City. The first 19 essays were republished in Philadelphia journals and (with one exception) also appeared in some upstate New York papers. Otherwise, however, there was almost no newspaper republication of any of the essays following their initial appearance in New York City; indeed, as to essays published after No. 19, there was – with appar- ently only four exceptions – no republication anywhere at all. From all appearances, no republication of even a single one of the 85 essays occurred in any newspaper in Connecticut, Delaware, Maryland, New Jersey, North Carolina, South Carolina or Georgia. In addition, prior to the publication of No. 1 through No. 36 in book form on March 22, 1788, six states had already ratified the Constitution, and two more states ratified before the final eight essays
- including Hamilton’s key treatments of the federal judiciary and the Bill of Rights – even made their first appearance on May 28, 1788. It has been noted that New York newspapers did circulate to some extent in other states, so that opinion leaders may have had access to at least some of the writings of Publius. The markedly limited circulation of The Federalist , however, sug- gests it probably played little or no role in shaping the views of the vast majority of ordinary citizens who participated in the ratification process. 15. Most ironically of all, the authors of The
Federalist failed miserably in their own chosen
mission.
The essential purpose of the papers was to sway New York voters to choose state ratification convention delegates who would support, rather than oppose, the newly proposed Constitution. In the end, however, state voters opted overwhelmingly for so- called “antifederalist” candidates over pro-Constitution “federalist” candidates, sending 46 antifederalists and only 19 federalists to the state ratification convention. As John P. Kaminski, a leading historian of the ratification period, has written, “[d]espite the significant place The Federalist has assumed in American political thought, its impact on New York’s reception of the Constitution was negligible.”
Whatever the impact of The Federalist in its own time, its modern status as an American icon cannot be denied. It is telling in this regard that, during 1980, three scholars pub- lished The Federalist Concordance , which (tracking similar treatments of no less significant texts than the Hebrew and Christian Scriptures) exhaustively lists every word that appears in the 85 essays, together with the page numbers and lines on which each listed word appears. The very existence of such a work confirms what Jacob Cooke wrote in its foreword: “ The Federalist , the authoritative exposition of the Constitution, occupies an unrivaled place in our national politi- cal literature.”
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