On the weaknesses of the Federalist case
While on the one hand the Federalist Papers are a work containing objective ideas of political theory, they were also written as persuasive rhetoric with a specific purpose in mind (that of selling the Constitution). In places, this motive appears to have led to logic founded on dubious assumptions or circular arguments presented in their zeal to refute and defy critics.
One of these weak points concerns the debate over whether or not to enumerate rights; and contained within this issue (or, perhaps, surrounding it) is the problem of the unresolved conflict sovereignty between the federal and state governments. In Federalist no. 84, Hamilton admits “the most considerable of the remaining objections is that the plan of the convention contains no bill of rights”. A bill of rights is unnecessary to begin with, he says, because of the very nature of a constitution. In monarchies of the past, bills of rights were employed to reserve specific rights that were not to be surrendered to the king (beginning, therefore, with the assumption that all rights are forfeited to the sovereign). In contrast, a constitution of the people goes the other way, and begins with the assumption of nothing being surrendered, which means the reservation of particular rights would be redundant. This perspective implies a great deal of trust that those who obtain positions of power under the constitution will always seek to preserve the rights of the people, simply by virtue of their being elected by them.
Additionally, the question arises of why, then, does Article 1 of the constitution bother to enumerate a few rights, such as trial by jury, privilege of habeas corpus, and prohibition of ex post-facto law? The enumeration of certain rights would seem to imply that they are not automatically granted and secured; why then should the people not fear the abridgement of other rights not explicitly laid out?
Hamilton continues that the enumeration of rights can in fact be dangerous, for it would imply the existence of powers which were not granted: “For why declare that things shall not be done which there is no power to do?” But this is again inconsistent with the fact that the constitution did explicitly grant a few rights. It also leads to the question of what powers have been granted, and to whom. On the one hand, in Federalist no. 45, Madison claims that “the powers delegated by the proposed Constitution to the federal government are few and defined”, while “those which are to remain in the State governments are numerous and indefinite”. This shuffles the bulk of the matter of individual rights off to the state governments, since if states must define their own powers, it follows that they must also define remaining rights in the context of those powers. In no. 84
Hamilton admits, however, that many states do not have bills of rights. The degree to which the powers of Congress really are defined is questionable as well, thanks to Article 1, section 8 of the constitution, which states that Congress has the power “to make all laws which shall be necessary and proper for carrying into execution” all powers vested in the United States government. This leaves the door pretty wide open for Congress to declare all manner of laws “necessary and proper”, thus skirting the problem of whether they were specifically vested or not.
The authors of the Federalist appear to attempt to quell fears of this kind of federal intrusion and encroachment upon state governments. In no. 46, for example, they claim that the structure and spirit of the federal government should render it “disinclined to invade the rights of the individual States, or the prerogatives of their governments”. They go on to describe how such encroachment “would not excite the opposition of a single State, or of a few States only”, but that there would be general alarm, and coordinated resistance.
At other points, however, the Federalist’s authors directly undermine the authority of the state governments, in favor of subordination to national law. In no. 23, Hamilton declares that “if we are in earnest about giving the Union energy and duration, […] we must extend the laws of the federal government to the individual citizens of America”, bypassing state legislatures, and creating the category of “citizen of the United States”. He goes so far as to say, in no. 33, that “the clause which declares the supremacy of the laws of the Union, […] only declares a truth, which flows immediately and necessarily from the institution of a federal government”, which seems to mean that this supremacy of laws is in fact a defining feature of a federal government.
The implications of the Federalist’s inconsistencies regarding enumeration of rights and the unresolved question of sovereignty are large and significant. Without a bill of rights, the combination of broadly defined Congressional powers and the supremacy of federal law would seem to pose a significant threat to individual liberty, and the validity of this potential threat has been borne out by history. The first indication of the importance of these issues is the fact that the Federalists did eventually concede to the demand for a bill of rights.
Even with these amendments to the Constitution, throughout history there have been instances of the abuse of the interpretation of “necessary and proper” laws—the most recent being the USA Patriot Act. With the bill of rights in place, we at least have constitutionally specified grounds to protest the act for its undue abridgement of the rights to freedom from unreasonable search and seizure, freedom from excessive bail, and of due process of law, to name a few. Without such rights having been enumerated, it is not hard to conceive of the kind of despotic wielding of supreme central power that the anti-federalists feared.
The swift passage of the Patriot Act following September 11th illuminates another point of weakness in the Federalist—that of a tendency to overestimate the effectiveness of the Republican system at ensuring “representatives whose enlightened views and virtuous sentiments render them superior […] to schemes of injustice” (Federalist no. 10). In no. 63, the authors praise at length the ability of the two houses of Congress to avoid those “particular moments in public affairs when the people, stimulated by some irregular passion, […] may call for measures which they themselves will afterwards be the most ready to lament and condemn”. Congress is very clearly not immune to popular passions, the Patriot Act (and other similar crusades, such as McCarthyism) being the product of practically passion alone.