In my battered copy of The Federalist Papers left over from college, F14 is really marked up. Either my professor had a lot to say about it, or I happened to be taking better notes than usual that day. F14 does serve up a nice summary of the preceding 13 papers and marks a turning point in the discussion — so it is a good one to make your undergrads study carefully, I guess.F1 through F14 (in the words of F15) are an “endeavour[] . . . to place before you in a clear and convincing* light, the importance of Union to your political safety and happiness.” F14 describes a further breakdown of this general topic heading. If I had to turn in an outline for a high school term paper about the first 14 Federalist Papers, it would look like this (all wording Publius’s):

The Necessity of the Union

(1) as our bulwark against foreign danger

(2) as the conservator of peace among ourselves

(3) as the guardian of our commerce and other common interests

(4) as the only substitute for those military establishments which have subverted the liberties of the old world

(5) as the proper antidote for the diseases of faction

(a) which have proved fatal to other popular governments

(b) of which alarming symptoms have been betrayed by our own

The rest of F14 is ostensibly devoted to answering the anti-Federalist objection that the territory of America is too big to be united under one single government. This proves to be a launching pad for (among other things) a great discussion of the balance of power between the state and federal governments! Here we are finally starting to get the first inklings of the Founders’ thinking about the basic structure of the Constitution:

“[I]t is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is to be limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments [i.e. the states -- that's right, South Carolina, you're being called subordinate] which can extend their care to all those other objects, which can be separately provided for, will retain their due authority and activity.”

This is especially fascinating in light of the fact that it was written pre-Bill of Rights. Isn’t this the Tenth Amendment** in embryo?!

It also demonstrates the fact that the Federalists were not fans of the Bill of Rights — that bill was, in fact forced through by the anti-Federalists. The Federalists did not think the Constitution need to provide, for example, that “Congress shall make no law . . . abridging the freedom of speech.” If the body of the Constitution doesn’t give Congress the explicit right TO make such a law, then it is presumed that Congress CAN’T. To these Federalists, Congress’s early stapling of a giant addendum to the original Constitution must have felt at best foolish, and at worst extremely dangerous. The Federalists’ project was not to think of every possible bad thing that the federal government could do and forbid it ahead of time. Instead they simply hoped to make a list of every good thing that they WANTED the government to do, and leave it implied that the government can’t do any extra stuff beyond this list. If we start adding “can’t do’s” to the “can do” list (they thought), aren’t we opening wide the door to other future “can’t do’s” that no one can think of right now?

Enter the Supreme Court. Thanks in large part to Marbury v. Madison and progeny, the Supreme Court’s job is exactly that — to deal with all the “can’t do’s” that the Founders couldn’t anticipate. Pretty much all the Supreme Court does all day is look at things that Congress has done, and decide whether they are “can do’s” or “can’t do’s.” (This is why the Bill of Rights plays such a key role in the Court’s jurisprudence.) Since the Federalists didn’t think this role would be necessary, I wonder what they DID want it to do???

Madison (who is Publius here) rounds off Part I of The Federalist Papers with another appeal to the importance of Constitutional ratification to the history of humankind (not just the history of America). He praises the Framers grandly (but with some justification): “They accomplished a revolution which has no parallel in the annals of human society: They reared the fabrics of governments which have no model on the face of the globe.” I don’t think he means the American Revolutionary War when he says “revolution” — I think he means that the Constitution itself is a revolution in human thought. I concur.

* Is this choice of phrase a coincidence? “Clear and convincing evidence” is a standard of proof used by lawyers and judges every day. According to a recent opinion from the Fourth Circuit Court of Appeals, “[C]lear and convincing [evidence] has been defined as ‘evidence . . . of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established,’ and, as well, as evidence that proves the facts at issue to be ‘highly probable.’” Jiminez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (2001). If this isn’t a coincidence, it’s interesting that this particular phrase is old enough to be part of the legalese of the 18th century, just as it is now.

** “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X.