Federalist Papers Research Articles

No Theory of Justice Can Ground Health Care Reform

This essay argues that no theory or single conception of justice can provide a fundamental grounding for health care reform in the United States. To provide such a grounding, (1) there would need to be widespread support among citizens for a particular conception of justice, (2) citizens would have to apprehend this common conception of justice as providing the strongest available rationale for health care reform, and (3) this rationale would have to overwhelm countervailing values. I argue that neither of the first two conditions is met.

Blunders of the Supreme Court of the United States, Part 2

The second in a series of two articles on blunders made by the Supreme Court of the United States. In this article the case of McCulloch v. State of Maryland (17 U.S. 316, 1819) is examined. The blunder made is that Congress under the 'necessary and proper' clause has implied powers. Reference to The Federalist Papers is made to show that Congress does not have implied powers under this provision, however, that the provision only authorizes Congress to pass necessary and proper laws for executing the powers granted to it under the Constitution.

FederalistNo. 72: What Happened to the Public Service Ideal?

FederalistNo. 72 is an oft‐neglected defense of the president’s reeligibility for election. However, the paper goes well beyond this issue to basic models of human nature and motivation. James L. Perry’s essay confronts this broad issue as a guide to “a public service ethic.” Like other authors in this special issue, Perry reads broadly through the Federalist Papers in search of a deeper definition of public service motivation as a balance between the potency of passion and the limits of reason. Controlling passion was no doubt important to the founders, but it may have drowned out the greater good envisioned in public service commitments to acting on behalf of the people.

Federalist Nos. 67–77 How Would Publius Envision the Civil Service Today?

Federalist Nos. 67–77 offer a strong defense of the “energetic executive” embedded in the new constitution, which is perhaps best captured in Alexander Hamilton’s famous conclusion that “the true test of a good government is its aptitude and tendency to produce a good administration.” This essay places this basic definition into historical context by reviewing the erosion of the national government’s emphasis on public duty as a prerequisite for effectiveness. Reading widely across the Federalist Papers, the author argues that the founders would be taken aback by the national government’s sheer scale and complexity and would strongly restate their basic principles of a government well executed.

Federalist No. 67: Can the Executive Sustain Both Republican and Energetic Government?

Federalist No. 67 generally is read as a vigorous defense of the chief executive and contains intense language to alleviate fears of a dictatorial president. However, it also can be read as a much deeper explication of the blend of republican and energetic government. The author examines this defense within the larger stream of Federalist Papers and compares the Anti‐Federalist attacks against a strong executive and Alexander Hamilton’s aggressive justifications.

Federalist No. 51: Is the Past Relevant to Today's Collaborative Public Management?

Federalist No. 51 is another of the most recognizable and important of the Federalist Papers, famously arguing that one first must enable government to control the governed, and then oblige it to control itself. The authors suggest that part of this obligation involves effective collaboration within a system of separate powers. They then ask how this “collaboration imperative” can be exercised in today’s contentious political environment.

Federalist No. 27: Is Transparency Essential for Public Confidence in Government?

One of the great themes of The Federalist Papers is that good government is dependent on good administration. In Federalist No. 27, Publius underscores two important themes. First, he argues that in order to preserve citizen confidence in government, there must be competent administration, and second, he maintains the need for a strong national government to safeguard the republican principles embedded within the Constitution. Publius's contribution to democratic theory and American republicanism proves as enlightening today as it was when he first published this essay in 1787, and it continues to provide important lessons for public administration and the democratic governance process.

Preface: An Audacious Task

Public Administration ReviewVolume 71, Issue s1 p. s5-s6 Preface: An Audacious Task Paul C. Light, Paul C. Light editor New York UniversitySearch for more papers by this author Paul C. Light, Paul C. Light editor New York UniversitySearch for more papers by this author First published: 14 November 2011 https://doi.org/10.1111/j.1540-6210.2011.02455.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat No abstract is available for this article. Volume71, Issues1Special Issue: The Federalist Papers Revised for Twenty-First-Century RealityEdited by Paul C. Light of the Robert Wagner School of Public Service at New York UniversityCo-sponsored by the School of Public Affairs at American University and the School of Policy, Planning, and Development at the University of Southern CaliforniaDecember 2011Pages s5-s6 RelatedInformation

Federalist No. 10: How Do Factions Affect the President as Administrator‐in‐Chief?

Federalist No. 10 arguably is the most frequently read of the Federalist Papers, in no small measure because it offers a distinct and often negative image of the polity as a source of conflict. It argues that factions cannot be tamed, but they can be controlled. This essay argues that factions have weakened effective public administration and offers a detailed discussion of the proliferation of interest groups and their role in undermining the system of checks and balances.

Influence at the Founding: The Federalist Papers' effect on the Ratification of the Constitution

While the drafting of the American Constitution in the summer of 1787 is recognized as a contentious period, the ratification of the proposed Constitution in each of the states held its own challenges. The Federalist Papers are widely seen as providing the case for the confidentially crafted Constitution, particularly in the state of New York. Yet the extent to which they played a role in convincing citizens and delegates at the time remains unclear. This essay seeks to understand the role that these 85 Federalist Papers played in the Ratification debate in the state of New York.

Stylometric analyses using Dirichlet process mixture models

Stylometry refers to the statistical analysis of literary style of authors based on the characteristics of expression in their writings. We propose an approach to stylometry based on a Bayesian Dirichlet process mixture model using multinomial word frequency data. The parameters of the multinomial distribution of word frequency data are the “word prints” of the author. Our approach is based on model-based clustering of the vectors of probability values of the multinomial distribution. The resultant clusters identify different writing styles that assist in author attribution for disputed works in a corpus. As a test case, the methodology is applied to the problem of authorship attribution involving the Federalist papers. Our results are consistent with previous stylometric analyses of these papers.

The American Judiciary Through the Lens of The Federalist Papers

The manner in which a Supreme Court justice ought to rule in any given case before him or her is a controversial topic in America, with a number of American lawmakers feeling that each justice should exercise “judicial restraint.” Those who feel this way often subscribe to the interpretive strategies of strict construction or originalism, which both cast judges as activists who have a political agenda, imposing it on America while ignoring the Constitution. As a remedy to their grievances, constructionists propose that the constitutional text should be rigorously adhered to while constitutional rights should be narrowly defined. Similarly, originalists propose that the Justices of the American Supreme Court interpret the law according to the intentions of the founding generation. This paper assesses the validity of these interpretive strategies by entertaining the originalist argument (albeit modified) and deferring judgment in this matter to The Federalist number seventy-eight and number ten. Upon analysis of these American founding documents, it is found that the intent of the founding generation to indeed create a judiciary that adheres to the parameters set by the Constitution, but also one that possesses room to incorporate their own judicial philosophies into their legal interpretations as opposed to one that exercises strict judicial restraint.

Europe's Neo-Madisonians: Rethinking the Legitimacy of Limited Power in a Multi-level Polity

Debates about the legitimacy of political orders have long turned on the question of how political power should be limited. In the debate about the legitimacy of the European Union (EU), a ‘neo-Madisonian’ vision has emerged that identifies in the multi-level nature of the EU a contemporary version of Madison's argument about the separation of powers and checks and balances. The article situates this account of the EU's legitimacy within the wider trajectory of European integration and argues that these neo-Madisonian scholars make the mistakes of presuming that all limits upon the exercise of power are legitimate and of treating sovereignty and legitimacy as oppositional concepts. By returning to Madison's argument in the Federalist Papers, the article highlights the connection between legitimacy, limited power and the principle of popular sovereignty and the implications of this for how we should think about the EU's legitimacy in the future.

The 'Constitution of Man': Reflections on Human Nature from the Federalist Papers to Behavioral Law and Economics

Studies of human nature in the context of legal policy tend to contrast the rational choice view against the more recent behavioral model of decisionmaking. This framework is misleading in that many of the latter school’s insights find expression in classical liberal literature such as The Federalist Papers that predates modern behavioral scholarship by centuries. These findings suggest an etiological rather than binary approach to framing the debate about human nature, an approach that seeks out the conceptual development from classical liberal to neoclassical economic to behavioral perspectives. Behavioral law and economics did not emerge sui generis as a novel counterpoint to the application of neoclassical economics to legal issues. Rather, classical liberal, neoclassical, and behavioral precepts about human nature form a unified whole, a narrative about our selves that has evolved over time. Both neoclassical and behavioral law and economic thinking related to specific policy design finds antecedents in The Federalist Papers discussion of human nature. The lodestar for our conception of human nature today should be the classical liberal perspective, because that is the basis upon which our Constitution was built and which endures as an accurate account of our nature. It may be common to think The Federalist Papers primarily concerns institutional design implicating public choice and political economy problems, and are therefore not relevant to the design of specific policies implicating individual biases and bounds. However, the conception of human nature that predicated the Constitution’s design has been largely vindicated by contemporary empirical investigations into individual psychology. Therefore, these founding era documents deserve renewed attention by students of human nature and by designers of specific government policies. Theories of human nature matter because law must incent and deter human behavior, and therefore must be based upon an accurate conception of the subject of the laws. The “constitution of man” elaborated in The Federalist Papers explains the need for and effectiveness of many of the architectural features of the United States Constitution, including separation of powers and other safeguards designed prevent abuse of government and to ensure excellence in government as near as humanly possible. The Federalist Papers also contains numerous examples of policy failure and explains them in terms of human nature. Therefore The Federalist Papers is not limited in focus to institutional design and the corresponding famous discussions of public choice and political economy problems that are quoted to every 1L. The text also includes substantial content relating to individual biases and cognitive bounds that are relevant to contemporary discussions of human nature and policy design. I draw the following concepts from The Federalist Papers’ remarkably insightful discussion of human nature: we are bounded (bounded rationality, will-power, self-interest, and ethicality); biased (availability bias, self-serving bias, confirmation bias, and optimism bias); bad betters (reactive devaluation, escalation of commitment, myopia, endowment effect, loss aversion, and prospect theory), and bad with others (collective action problems, rent seeking, free riding, groupthink, and holdouts). It is worthwhile to compare Founding-era conceptions of human nature with contemporary discussions if only to know whether they are still accurate. It appears they are.

Tayloring Game Theory the Ostrom Way

Tayloring Game Theory the Ostrom Way Hartmut Kliemt (bio) "We now consider the possibility of "designing cooperation," just as engineers have been concerned with the problem of designing electric switches. We are very much at this stage of basic research, more physics than real engineering, but I want to argue that our success has been real, and I want to emphasize that this achievement has been at the very top of what has happened in economics during the last couple of decades." 1 In the academic year 1987-88, Reinhard Selten organized the "game theory in the behavioral sciences" project at the "Center for Interdisciplinary Research" (ZiF) of the University of Bielefeld in Germany. 2 The times before the ascent of the internet were different from ours as far as academic collaboration and exchange were concerned. Even though some researchers were already using a rudimentary form of webcommunication, physical presence was more important than today. So, beyond the fact that Reinhard Selten was calling, scholars with diverse disciplinary and national backgrounds had a stronger incentive than today to come to the ZiF for extended periods of time to interact with each other. 3 Beyond physical presence, command of broken English—as the general language of science, some game theory, as well as the modern "lingua franca" of behavioral science—made communication among group members across disciplines and national backgrounds viable. However, it took open-minded and outgoing scholars like Elinor Ostrom to get collaboration [End Page 37] really going. Her presence through most of the research year was an important contribution to the project. That the project became a success is sufficiently documented by the four volumes of papers written during the year. 4 It is less well known that Elinor Ostrom had been presenting and discussing many topics of her book on "governing the commons" 5 during her time at the ZiF. Since the book became a seminal contribution to social theory it may be of some interest to put things into the perspective of another participant of the research project. This is what I will try below, heroically leaving aside later books and papers and referring instead to her "Beyond Markets and States: Polycentric Governance of Complex Economic Systems." 6 Roots In 1984 James M. Buchanan had given me his good advice that I should read Vincent Ostrom's work on "the political theory of a compound republic." 7 For me as a European political philosopher-economist this seminal interpretation of the specific blend of empirical and theoretical views of the "American Founding"—as represented in particular in "The Federalist Papers"—was an eye-opener. Since I had the tip, so to say, "from the mouth of the horse" I was looking forward to meeting Vincent Ostrom when I came for two months to the ZiF. Talking to him was indeed very interesting and gratifying. But it became almost immediately clear that Elinor Ostrom was more inclined towards the modeling aspects of economics and game theory than Vincent and thereby even closer to my interests. The similarities in certain starting points were actually rather striking. We both admired Reinhard Selten's philosophical approach to game theory and Vincent Ostrom's approach to the political theory of the American founding and its background in the theories of the British Moralists. 8 Both of us had worked on building a bridge between these two seemingly disparate strands of social theory for about a decade. Trying to bring together the two approaches we had, somewhat paradoxically, become both more optimistic and more pessimistic about the contribution of formal modeling to social theory. We had become increasingly convinced of the value of non-co-operative game theory or rational choice modeling (RCM) as a tool of representing complex interactions. At the same time we became increasingly skeptical about the prospects of rational choice theory (RCT) as a means of explanation. 9 [End Page 38] Michael Taylor's book on "anarchy and cooperation," 10 practically unknown to the formal theorists, had been at root of a kind of "new game theoretic turn" in social theory (the old one being associated with the work of Thomas Schelling in particular). 11 It bridged the gap...

The Corporation as a 'Real' Constitutional Person

For two centuries, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in doctrinal theory have the potential for wide impact. Earlier this year, the United States Supreme Court reignited that discussion when it delivered the opinion in Citizens’ United v. FEC. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court held that corporations are protected by the First Amendment, and in the process, reinvigorated the perennial, trifurcated break in corporate doctrinal discussion between concessionary theorists, aggregate theorists, and real entity theorists. More specifically, the majority, invoking the “original understanding” of the Constitution, appears to have adopted a real entity theory of the corporation. Nevertheless, the majority provided little contemporaneous documentary evidence to support its position - a gap that exists in the academic literature as well. This Article fills a portion of that gap by analyzing documents contemporaneous to the drafting and ratification of the Constitution. Specifically, this Article defines the contemporaneous meaning of the words “people,” “person,” and “citizen” - the entities the Constitution explicitly attempts to protect - by examining the manner the drafters and ratifiers used those words during the Constitutional Convention, the ratification debates, the debates surrounding the Bill of Rights, and the debates surrounding the Fourteenth Amendment. Using those documents as the foundation for the analysis, this Article then argues that the manner the drafters and ratifiers used those terms during the debates is inconsistent with the concept of corporations as real constitutional entities. Part II of this Article briefly discusses each of the traditional three constitutional theories of the corporation, beginning with concessionary theory and then moving to both aggregate theory and real entity theory. This Part additionally discusses the Court’s decision in Citizens United and the majority’s holding that corporations are real entities for constitutional purposes. Part III analyzes whether the majority’s decision is consistent with documents contemporaneous to the Constitution and its amendments in four sections. Section one discusses the language contained within the Constitution and more specifically the entities explicitly entitled to protection - “people,” “persons,” and “citizens.” This section then analyzes the language used during the Constitutional Convention, the language used in the Federalist Papers, the language used in contemporaneous state organic documents, and the definitions in contemporaneous dictionaries to determine the meaning of those words at the time the Constitution was drafted. Section two again focuses on the words “people,” “citizens,” and “persons” and their usage by the ratifiers during the ratification debates. Section three then turns to the Bill of Rights and discusses the entities explicitly protected in the language of the amendments - “people” and “persons.” This section analyzes the language the drafters and ratifiers of the Bill of Rights used to determine the contemporaneous meaning of those words. Additionally, this section analyzes the passive clauses of the Bill of Rights - the clauses that do not contain a subject - in combination with the language of the drafters and ratifiers of the amendments to determine the meaning of those clauses, focusing specific attention on the First, Sixth, and Seventh Amendments. Finally, section four analyzes the Fourteenth Amendment and the terms the Amendment explicitly protects - “persons” and “citizens.” The section then defines those terms using the debates of the Fourteenth Amendment as a guide. Taking all four sections together, this Part ultimately concludes that the drafters and ratifiers of the Constitution, and its amendments, used the words people, person, and citizens in a manner inconsistent with the notion of corporations as real constitutional entities.

Authorship, Authority & the Founding: The Significance of the Author for the American Constitution

Popular discourse posits that the Founding Fathers, among many other notable attributes, earned the thanks of posterity as the authors of America’s constitution document. Authorship of the Constitution, attributed to the actors of the Philadelphia Convention, is readily invoked within contemporary political discussions. However, it is less common that the implications of this characterization are considered. Placing the claim to authorship against two related literatures, this paper seeks to explore the stakes of the idea that the Framers were the authors of America’s constitutional document. Seeking first to locate the claim to authorship within the context of the emergence of an ideology of authorship and associated conceptions of copyright within the early Republic, the paper will examine the ambiguities involved in the single use of the construction “authors of the constitution” within the Federalist Papers. By then turning to the theoretical discussions initiated by Barthes’s “The Death of the Author” and Foucault’s “What is an Author?”, the paper will explore the significance and consequences of the attribution of authorship within the contemporary period, arguing that the debates concerning the death of the Author enable us a fuller comprehension of the endurance of the constitutional text within American politics and culture.

The Founders’ Bush v. Gore: The 1792 Election Dispute and its Continuing Relevance

In 1792, the Founders of our Republic and its Constitution faced their own version of what our generation knows as Bush v. Gore. It occurred in the context of that year’s election for governor in New York. John Jay was challenging the incumbent, and Jay and his supporters believed that they were wrongly robbed of their rightful victory when the state’s canvassing committee – in divided vote that fell along party-line lines – disqualified one county’s ballots because of a technical defect in the delivery of these ballots from the county to the Secretary of State.Although the 1792 dispute concerned the rules for ballot delivery, rather than hanging or dimpled chads, the same basic jurisprudential debate in Bush v. Gore existed in 1792. Just as Gore argued for avoiding the disenfranchisement of voters as a consequence of faulty electoral machinery, so too did Jay’s side claim that protecting voters from the loss of their fundamental (and constitutional) right to the franchise was justification for excusing a technical breach of the state’s ballot delivery law. Conversely, just as Bush’s legal team claimed that strict enforcement of Florida’s election rules was necessary to preserve the integrity of the electoral process, so too did Jay’s opponents make the identical argument.Moreover, this debate about how best to operate democracy in the context of a dispute over the results of an important statewide election consumed the attention of the Founding Generation. Jay’s Federalist Papers co-authors, Hamilton and Madison weighed in with their views, as did Jefferson, Monroe, and Burr. Other important, but less well-known, Founders were also involved. For example, Edmund Randolph, the nation’s first Attorney General, forcefully expounded the integrity argument. James Kent, a Jay supporter who would later be known as “America’s Blackstone” for his Commentaries on American Law, condemned the canvassing committee for being structurally biased against Jay’s side in its membership.This largely forgotten historical episode, with its similarities to the disputed presidential election of 2000, is more than just an interesting curiosity. Rather, the difficulties that the Founding Generation had with its own version of Bush v. Gore – especially its lack of an institution for resolving the dispute that was perceived to be structurally fair to both sides – helps to explain why our own generation had such difficulty with resolving the 2000 presidential election. We have inherited the constitutional system that the Founders bequeathed to us. But that system did not include an adequate mechanism for handling a disputed election for chief executive, whether governor or president. This Article explores the reasons for the Founders’ inability to equip us, or (as shown by the events of 1792) even themselves, with this necessary element of a well-functioning constitutional democracy. As a nation, we will continue to suffer from this inadequacy until we recognize that the Founders did not give us all that we need and thus we take it upon ourselves to add the missing institutional ingredient to the system they gave us.

George Washington and Executive Power

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered.Washington filled these gaps with a number of foundational decisions - several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so that there would be no confusion about his responsibility and accountability. He took the initiative in enforcing the law and followed his own interpretation of the Constitution. He managed diplomatic relations with other countries and set the nation’s foreign policy. At the end of his two terms, the Presidency looked much like the one described in The Federalist Papers. None of this was foreordained. Washington could have chosen to mimic a parliamentary system or a balanced government with executive branch officials drawn from an aristocratic social class. He could have considered the Presidency as Congress’s clerk, committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states. But instead he read his constitutional powers broadly to lead the nation through its first growing pains; restore the country’s finances; keep the nation out of a dangerous European war; open the West to American expansion; and see the Constitution through the appearance of the first political parties.

The Classical Orator as Political Representative: Cicero and the Modern Concept of Representation

Contemporary scholars largely agree that political representation is a modern phenomenon. I argue in this article, however, that Cicero envisions his ideal orator-statesman as a representative of the Roman people. First, Cicero uses terms, including procurator, auctor, tutor, dispensator, and vilicus, to describe the ideal orator-statesman, particularly in De oratore and in De republica, in ways that suggest representation. Second, Cicero illustrates characteristics of the orator that are analogous to many of the primary characteristics associated with the modern representative. Cicero’s anticipation of modern representation can be seen by delineating this conception through the writings of theorists of political representation, such as Edmund Burke, the authors of the Federalist Papers, and John Stuart Mill.