Teaching the Federalist Papers
If we taught the Federalist Papers more rigorously would that lead to a shared view of the constitution?
Peter Berkowitz has a column in the WSJ entitled: Why Colleges Don’t Teach the Federalist Papers.
This headline caught my eye for a couple of reasons. The first being the obvious fact that as a professor of political science, claims about the teaching of politics in US institutions of higher education are of general interest. The second being more specific: that the last couple of years (my, time flies) have had me involved in a book project that uses the Federalist Papers as a key thematic basis.* Indeed, for these reasons the column inspired several thoughts on my part. I will try and deal with a few here and more on to a few more later.
My immediate reaction to the headline was that while I can agree with the notion that the Federalist Papers could be taught more than is the case as a general proposition, that it is simply wrong to state that “colleges don’t teach the Federalist Papers.” I would note that almost every single American government reader (i.e., supplements that collect various readings for use in a basic Am Gov course) I have ever seen over the last two decades plus have almost certainly included Federalist 10, 39, and 51. Further, they have likely also included various numbers about the presidency and the courts. Typically 10 and 51 are included as appendices to American Government textbooks alongside the US Constitution and the Declaration of Independence. In other words, contra the suggestion in the column (as well the title of Steven Hayward’s blog post) the Papers are typically treated as key founding documents.
However, Berkowitz’s column really takes a narrow critique:
At Harvard, at least, all undergraduate political-science majors will receive perfunctory exposure to a few Federalist essays in a mandatory course their sophomore year. But at Yale, Princeton, Stanford and Berkeley, political-science majors can receive their degrees without encountering the single surest analysis of the problems that the Constitution was intended to solve and the manner in which it was intended to operate.
Most astonishing and most revealing is the neglect of The Federalist by graduate schools and law schools. The political science departments at Harvard, Yale, Princeton, Stanford and Berkeley—which set the tone for higher education throughout the nation and train many of the next generation’s professors—do not require candidates for the Ph.D. to study The Federalist. And these universities’ law schools (Princeton has no law school), which produce many of the nation’s leading members of the bar and bench, do not require their students to read, let alone master, The Federalist’s major ideas and main lines of thought.
First, there is something of a disconnect between a claim that colleges don’t teach the Federalist Papers and a critique of four universities. Further, while I am sure it is possible to assess the main reading lists for Ph.D. candidates taking comprehensive exams in American Politics, I am not sure how one can definitively make claims about what students do, or do not, read in these various programs (that’s a lot of syllabi to review**). Indeed, I would suspect that things like the Articles of Confederation, Declaration of Independence, and the US Constitution are not listed on those reading lists either, but that the assumption is that students will have read them (and read them in detail).
The real problem of the Berkowitz column, is not the question of whether the Papers are adequately incorporated into the curricula of major political science programs, it is the following:
It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century.
Actually, it is extremely easy to overstate the significance of the Papers as a means of understanding contemporary politics because they were not written as a timeless guide to the Constitution. Yes, the Federalist Papers represent an extremely interesting and very useful elucidation of applied political theory (and of a distinctly American character), but they should not be seen as some sort of timeless window into the exact meaning of the Constitution. At a minimum one has to recognize that they were written to convince the state of New York to ratify the constitution (which Berkowitz does note in his column, to be fair). As such, they were political commercials of a sort directed to assuage certain fears and to persuade a very select number of voters. They were not pure theory and they were not written to be the sine qua non of constitutional interpretation. To treat them as such, therefore, is problematic. The reasons why a document was written should matter, I would think, in determining the exact purpose of said document, yes?
Also, the notion that the Federalist Papers represents the guide to understanding all things constitutional is undercut by, well, reading the documents. A simple example: go consult Federalist 66 and 68 on the topic of the election of the president and the functioning of the electoral college (which I wrote about here) and tell me that the Federalist Papers perfectly foresaw how politics would work in the 21st century (or, for that matter, the early 19th). Another key example: the Papers (and, indeed, the Founders in general) utterly lacked an understanding of the role of political parties in representative democracies. I am a huge fan of the Federalist Papers and advocate their study, but pretending like the Federalist Papers actually represent a defense of a very specific contemporary view of the constitution requires a very selected reading of the document. It is especially problematic when contemporary readers treat the Papers like some type of Rosetta Stone through which one can discern a timeless meaning of the constitution (or, worse, as if they are stone tablets brought down from the mountain). Indeed, the main problem with almost all call backs to the Founders and Framers is the notion that somehow a quotation from them equals a winning argument. That’s not really how argumentation works nor it is appropriate analysis (or, for that matter, good history).
A journal article from 1951 by Douglass Adair makes an especially insightful observation about the Federalist Papers in general that serves as an interesting counterpoise to Berkowitz’s essay. Writing in the context of using the Federalist Papers to interpret the constitution he wrote: “it is a truism apparent to everyone who has reflected on American history that every generation sees mirrored in the Constitution its own deepest political interests” (50).
His proximate cause for making the statement was his analysis of the prestige assigned to James Madison’s Federalist 10. Adair notes that that essay, which we now consider a classic and document central to our understanding of the constitution, was largely ignored for a century and quarter and did not rise to prominence until historian Charles Beard made it a central piece in his 1913 analysis of the constitutional convention.
As Adair notes:
When James Madison died in 1836-just one year before the fiftieth anniversary of the Philadelphia Convention-the burning political issues of that day centered on the powers and structure of the federal union and its relation to the state governments. In this atmosphere the Federalist essays which seemed of most importance were those that dealt with the powers of Congress; the relationship between the President, the Congress, the Judiciary; and increasingly as the year 1860 drew closer, the rights of the states to nullify or otherwise protect themselves against obnoxious legislation. The Tenth Federalist was not directly in point in the fierce debates that raged over these issues before the Civil War; so although thousands of Americans must have read the essay while seeking to obtain light on the meaning of the Constitution, practically no one in this era publicly signaled it out for especial praise or comment.
In other words, the focus on specific elements of the Federalist Papers for use in contemporary political debate is nothing new. And, further, they have not all been held in identical esteem over time. Indeed, political scientist Samuel Kernell notes in his book on Madison, our views on the Pantheon of the Framers has not been consistent: “From the Civil War until the early twentieth century, Madison’s scholarship steadily sank into obscurity, even disrepute” (2003:4).
Back to Berkowitz: he is doing exactly what Adair described over 60 years ago: he wants to use the Federalist as a means of making a contemporary political argument, most specifically (it would seem) to support a generally conservative political point of view (in the contemporary sense) and specifically to the commerce clause (PPACA, anyone?):
And thus so many of our leading opinion formers and policy makers seem to come unhinged when they encounter constitutional arguments apparently foreign to them but well-rooted in constitutional text, structure and history. These include arguments about, say, the unitary executive; or the priority of protecting political speech of all sorts; or the imperative to articulate a principle that keeps the Constitution’s commerce clause from becoming the vehicle by which a federal government—whose powers, as Madison put it in Federalist 45, are “few and defined”—is remade into one of limitless unenumerated powers.
Setting aside the question of whether the individuals in question are becoming “unhinged” or not (no doubt some are, others not), but the main problem here is the assumption that Berkowitz is making: that a plain reading of the Federalist Papers is a slam dunk for his preferred point of view. However, the problem remains that while even if we agree that there are “few and defined” powers given to Congress in Article I, Section 8, we still find ourselves arguing over the meaning of one of those “few and defined” powers: i.e., what constitutes “interstate commerce.” This is the ultimate problem, not whether or not people have read enough of the Federalist Papers
(To be continued).
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*The book in question, which is not quite finished but will be soon (knock on wood) is a co-authored text on the institutional design of democracies that compares the United States to twenty-nine other democracies and is tentatively entitled A Different Democracy: The United States in Comparative Perspective. My co-authors are Matthew Shugart, Arend Lijphart, and Bernard Grofman.
**Keeping in mind that in colleges and universities in general, but especially at elite institutions, syllabi are controlled by faculty and change with some regularity. While I am sure that there aren’t courses called “The Federalist Papers” in the catalogs of these schools, that doesn’t prove that the subject is not taught. Granted, Berkowitz may have done more comprehensive research on this topic than the column suggests. Still, I am unclear as to the bases of his claims.
Works Cited
Adair, Douglass. 1951. “The Tenth Federalist Revisited.” The William and Mary Quarterly, 8:1 (Jan., 1951): 48-67.
Kernell, Samuel, ed. 2003. James Madison: The Theory and Practice of Republican Government. Stanford University Press.
and let’s not forget that while the federalist papers were an integral part of understanding the debate over the constitution, there was another whole side to the debate that never get’s any mention or respect and was equally important in understanding the issues as they were framed at the time … the Anti-federalist papers.
@Rick DeMent: True: the really interesting part of that factor is that many people who claim to revere the Federalist Papers actually make arguments that are far closer to those found in the Anti-Federalist writing. This is especially true of the Tea Party.
Well said, co-author.
As I often like to point out in these contexts, and based on Kernell’s argument that you cited, Fed #10 was actually written before the convention to defend a rather different set of constitutional principles than what emerged from the convention. And I am pretty sure what Madison was defending in #10 is not something the likes of Berkowitz would see as sacrosanct.
If somebody wants to teach the Federalist Papers and say, “This is the proper view of the Constitution, end of argument,” then that person is grossly misinterpreting US history. To the contrary, the Federalist Papers represent merely one view in this country’s two hundred years or more of constitutional debate.
@MSS:
Gracias.
Indeed! In fact, I plan on coming back to this in the “to be continued” part (a lunchtime response to a column got long quite quickly!
In answer to your teaser quesetion, as long as there’s a buck to be made from disagreeing about the meaning of the Constitution we’ll never have a shared view.
A works cited page on a blog post? You’re too kind by half.
@Rick DeMent: Gosh, I haven’t heard anything about the anti-Federalist papers since I was in high school.
The reason they’re not cited, though, is the authors of the anti-Federalist aren’t as well known as Madison or Alexander Hamilton, except perhaps Patrick Henry for his one quote.
@ Steven Taylor:
I believe that statement will get you permanently branded a Communist in certain circles. It’s borderline heresy to suggest the Founder’s made an error whe many in our country think the Constitution was divinely inspired.
It’s also laughable to suggest there was any sort of unanimity among the founders. The Constitution, while generally a good document, was crafted as a set of compromises between men who represented vastly different conceptions of how American government should work …
… And that’s just the politicians who were at the convention.
Consider the example of Patrick Henry, who opposed the Constitution (and was reputedly an author of the anti-Federalist papers), yet later threw his support behind the Federalists once the Union was established.
The Federalist Papers are the number one interpretive guide to the Constitution.
The only time you’re going to run into the Federalist Papers in law school is when you’re taking Constitutional law or a course so closely related that it’s the same thing. And even then, you’re far more likely to run into cases where courts have quoted from the Federalist Papers. Maybe. In a blue moon. If the judge decides to be a Originialist.
Berkowitz might as well be fulminating about law schools not teaching the 12-century canonist commentary on separation of powers between Pope and cardinals for its implication on U.S. Constitutional law.
Ass.
The Federalist Papers carry no weight of law behind them. They are merely the opinions of dead men, and as such really only bear reading by those interested in the historical context from which the constitution sprung. They have no bearing on the modern government that has evolved out of the constitution and it’s inappropriate for anyone to suggest they should- these documents were never voted upon, never ratified. They are individual opinions and nothing more. In fact you can go further and say they were merely the partisan propaganda of their time.
So by what right to they get transubstantiated into iron clad dogma by “originalists”?
I have to wonder: Is this a typical Straw Man conservative column?
I attended a large public university about 40 years ago, and in two quarters I took undergraduate courses in the Political Science Department on The Constitution. We went through the history, origin and context of our Constitution, and we spent a lot of time on the Federalist Papers. How could it be otherwise?
If you ask me, every high school junior or senior should have to take a similar course – I can think of nothing so important and interesting as gaining an understanding of the antecedents and underlying philosophy of our nation’s most important document.
Generally speaking, I think it is true that those that want more (Fed) government control of our lives will discount everything about the Constitution, even twisting its actual words into something completely the opposite. Even Ginsburg doesn’t like it.
Neither the Federalist nor the Anti-Federalists argued for anything close to the all-controlling Fed we have today. I think the Anti-Federalists argued against the Constitution because they feared the Fed gov would become Big Brotherish.
Great post. Top notch.
I would phrase it this way: To argue that the Federalist Papers are sacrosanct to the interpretation of the Constitution is tantamount to arguing that a noteworthy Representative’s commentary in the legislative history about a particular bill is sacrosanct to the interpretation of a statute.
Reality does not jibe with Berkowitz’s agenda.
Berkowitz also is way off base on his law school critique. Law school pedagogy in connection with Constitutional law correctly is intended to teach students how courts have interpreted the Constitution, not the historical backdrops to how the Constitution was written and ratified. Granted, law schools don’t teach law students even 1% of what they need in actual practice to know, but that’s not because of any failure to immerse them in the Federalist Papers. That’s a horse of an entirely different color.
That all said, however, at the high school and college levels, certainly the Federalist Papers should be part and parcel of any course of study on the Constitution. So too should the Anti-Federalist Papers.
I really don’t think Berkie should be citing the Federalist on the PPACA, given what Hamilton and Madison wrote about the Necessary & Proper Clause.
@Steven L. Taylor: Speaking of the Tea Party, the following quote from Federalist 41 could have been written in response their view of the PPACA or more generally of theFederal Gov’t:
They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.
It’s an odd sort of thing where modern terminology is rather historic. I am what is often called a federalist, which is to say that I would set the sails to give the states more autonomy over their own sails. Of course, historically, the federalists were defending a Constitution seeking to consolidate national power and move away from the confederation (and the Federalist Party was more national-minded still). But there is no word in the common usage that conveys broadly where I stand on the national/state relationship. I still tend to avoid it, especially around poli sci sorts of people, but it requires some fumbling around to do so.
Anyhow, I suspect that a lot of the misunderstanding of the Federalist Papers are based on assumptions due to the modern usage of the word (specifically, the limitations on the national government) and therefore, presumably, it would back up modern “federalist” arguments..
What we see here is that in some circles the Constitution, The Federalist Papers etc. have become sacred documents which is almost as dangerous as assuming the Old Testament applies to the 21st Century. Of course like the Bible they ignore the parts of the original US documents that don’t fit preconceived notions.
We are also running into language issues. Language changes over time and some of the words simply don’t mean or have the same connotation that they did in 1776. It’s not unlike the Bible where we see many mis-translations from the original Greek, Amharic etc.
I don’t believe that the same people would have written the same documents today that they did in 1776.
In light of yet another conservative nut accusing Obama of treason, I thought this section of Federalist No. 43 would appropriate:
Thank you thank you thank you. I have this discussion all the time with a certain type of crank and few have ever even heard of the Anti-Federalist Papers. They say the Federalist Papers were a Rosetta Stone for the entire Constitution, I say they were a series of white papers which held no actual authority and, in some cases, the authors of these papers acted in ways which would seem to have been in opposition to their own arguments once they were in power.
@Timothy Watson: Hey, at least the treason claim is a tacit admission of citizenship. Progress!
These are the same people who insist Jefferson’s writings on the separation of church and state are irrelevant, right?
Steven L. Taylor @ Top:
Or not.
Berkowitz’s take seems to follow in the footsteps of Naomi Schaefer Riley’s defense of her own lackadaisical research of college curricula before writing about it:
Substitute “course catalogs, syllabi, and The Federalist Papers” for “dissertations” and you have an attitude that looks remarkably similar to the one that informs Berkowitz’s silly thesis and rant.
.
Hmmm. Now, where else in public life do conservatives do a highly selective and narrow reading of a foundational text to advance a contemporary argument?
What was that dustup last week? Ahh, yes, that would be Dan Savage reading the beads of folks who pick one sin and omit the other prohibitions.
@TR: Because Jefferson didn’t have anything to do with the Constitution, he was in Paris.
This appears to be inaccurate statement of the history:
States rights as an issue leading to the Civil War is an achronistic view of history. From 1820 to 1857, Congress engaged in a variety of compromises on the extension of slavery to the new territories. There was no Constitutional dispute here, nor serious debate about the federal governments right to enact these compromises, particularly since the founders had done so with the Northwest territories. Adair is writing in the 50s from the perspective of state’s rights issues of that time.
In 1857, Dredd Scott the SCOTUS unexpectadly changed the debate to the relationship between the black person and the political community created by the Constitution. The majority and dissenting opinions all relied upon their interpretation of a few of the Federalist Papers, but the reality is that race relations were not a key point of discussion in the Papers.
@Timothy Watson: If anyone is interested in the history of treason, go take a look at the Corpus Iuris Civilis and how the Catholic Church swiped large parts of it for their rules against heresy. And how the possibility of bringing post-mortem accusations of treason wrecked havoc with property rules throughout Europe. Accusations of treason were also one way the Italian city states tried to fill their coffers since they could theoretically confiscate the estates of conspirators. Some of the jurists tried to hold back the dam by making a distinction between cases where you could confiscate the estate (ultra-high treason, only against the Emperor or his representatives) and not (any other treason, treason against a prince, low treason (counterfeiting)) but in the 15th century most of these fine gradations disappeared, with the expected results.
There’s a very good reason why treason is written into the Constitution: the Founding Fathers knew damn well what would happen if they didn’t.
@Timothy Watson: Oh, and there still is very much of a thread: Roman Law–>Canon Law–>English common law swipes concepts from Canon law. Plus the Founding Fathers definitely did NOT limit themselves to borrowing concepts and law from England only; heck, the first time I reread the Declaration of Independence after getting my M.A. I thought someone had lifted the Declaration straight from Resistance Theory writings…